Exhibit 99 (a)
EXECUTION COPY
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$2,825,000,000
5-YEAR
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
among
DELPHI CORPORATION,
as Borrower,
The Several Lenders from Time to Time Parties Hereto,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
Dated as of June 14, 2005
================================================================================
CITICORP USA, INC.,
as Syndication Agent
CREDIT SUISSE FIRST BOSTON, DEUTSCHE BANK AG, NEW YORK BRANCH
and HSBC BANK USA,
as Co-Documentation Agents for the Revolving Facility
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Documentation Agent for the Term Facility
X.X. XXXXXX SECURITIES INC., CITIGROUP GLOBAL MARKETS INC.,
as Joint Bookrunners for the Revolving Facility
X.X. XXXXXX SECURITIES INC., CITIGROUP GLOBAL MARKETS INC.,
and DEUTSCHE BANK SECURITIES INC.,
as Joint Bookrunners for the Term Facility
X.X. XXXXXX SECURITIES INC. and CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 1
1.1 Defined Terms......................................................... 1
1.2 Other Definitional Provisions......................................... 21
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 21
2.1 Term Commitments...................................................... 21
2.2 Procedure for Term Loan Borrowing..................................... 22
2.3 Repayment of Term Loans............................................... 22
2.4 Revolving Commitments................................................. 23
2.5 Procedure for Revolving Loan Borrowing................................ 23
2.6 Swingline Commitment.................................................. 23
2.7 Procedure for Swingline Borrowing; Refunding of Swingline Loans....... 24
2.8 Commitment Fees, etc. ................................................ 25
2.9 Termination or Reduction of Revolving Commitments..................... 26
2.10 Optional Prepayments.................................................. 26
2.11 Mandatory Prepayments................................................. 26
2.12 Conversion and Continuation Options................................... 28
2.13 Limitations on Eurodollar Tranches.................................... 28
2.14 Interest Rates and Payment Dates...................................... 29
2.15 Computation of Interest and Fees...................................... 29
2.16 Inability to Determine Interest Rate.................................. 29
2.17 Pro Rata Treatment and Payments....................................... 30
2.18 Requirements of Law................................................... 31
2.19 Taxes................................................................. 32
2.20 Indemnity............................................................. 34
2.21 Change of Lending Office.............................................. 34
2.22 Replacement of Lenders................................................ 35
2.23 Foreign Revolving Facility............................................ 35
2.24 Certain Provisions relating to Revolving Facility..................... 36
SECTION 3. LETTERS OF CREDIT 36
3.1 L/C Commitment........................................................ 36
3.2 Procedure for Issuance of Letter of Credit............................ 37
3.3 Fees and Other Charges................................................ 37
3.4 L/C Participations.................................................... 37
3.5 Reimbursement Obligation of the Borrower.............................. 38
3.6 Obligations Absolute.................................................. 39
3.7 Letter of Credit Payments............................................. 39
3.8 Applications.......................................................... 39
SECTION 4. REPRESENTATIONS AND WARRANTIES 39
4.1 Financial Condition................................................... 39
4.2 No Change............................................................. 40
4.3 Existence; Compliance with Law........................................ 40
4.4 Power; Authorization; Enforceable Obligations......................... 40
4.5 No Legal Bar.......................................................... 40
4.6 Litigation............................................................ 41
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Page
4.7 No Default............................................................ 41
4.8 Ownership of Property; Liens.......................................... 41
4.9 Intellectual Property................................................. 41
4.10 Taxes................................................................. 41
4.11 Federal Regulations................................................... 41
4.12 Labor Matters......................................................... 41
4.13 ERISA................................................................. 42
4.14 Investment Company Act; Other Regulations............................. 42
4.15 Subsidiaries.......................................................... 42
4.16 Use of Proceeds....................................................... 42
4.17 Environmental Matters................................................. 42
4.18 Accuracy of Information, etc.......................................... 43
4.19 Security Documents.................................................... 43
4.20 Solvency.............................................................. 44
SECTION 5. CONDITIONS PRECEDENT 44
5.1 Conditions to Initial Extension of Credit............................. 44
5.2 Conditions to Each Extension of Credit................................ 46
5.3 Conditions Subsequent................................................. 46
SECTION 6. AFFIRMATIVE COVENANTS 46
6.1 Financial Statements.................................................. 46
6.2 Certificates; Other Information....................................... 47
6.3 Payment of Obligations................................................ 48
6.4 Maintenance of Existence; Compliance.................................. 48
6.5 Maintenance of Property; Insurance.................................... 48
6.6 Inspection of Property; Books and Records; Discussions................ 49
6.7 Notices............................................................... 49
6.8 Environmental Laws.................................................... 49
6.9 Additional Collateral, etc............................................ 50
SECTION 7. NEGATIVE COVENANTS 51
7.1 Financial Condition Covenants......................................... 51
7.2 Indebtedness.......................................................... 52
7.3 Liens................................................................. 53
7.4 Fundamental Changes................................................... 55
7.5 Disposition of Property............................................... 56
7.6 Restricted Payments................................................... 57
7.7 Capital Expenditures.................................................. 57
7.8 Investments........................................................... 57
7.9 Restrictions Relating to Existing Indentures.......................... 59
7.10 Transactions with Affiliates.......................................... 59
7.11 Sales and Leasebacks.................................................. 59
7.12 Swap Agreements....................................................... 59
7.13 Changes in Fiscal Periods............................................. 59
7.14 Negative Pledge Clauses............................................... 59
7.15 Clauses Restricting Subsidiary Distributions.......................... 60
SECTION 8. EVENTS OF DEFAULT 60
SECTION 9. THE ADMINISTRATIVE AGENT 63
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Page
9.1 Appointment........................................................... 63
9.2 Delegation of Duties.................................................. 63
9.3 Exculpatory Provisions................................................ 63
9.4 Reliance by Administrative Agent...................................... 64
9.5 Notice of Default..................................................... 64
9.6 Non-Reliance on Administrative Agent and Other Lenders................ 64
9.7 Indemnification....................................................... 65
9.8 The Administrative Agent in Its Individual Capacity................... 65
9.9 Successor Administrative Agent........................................ 65
9.10 Syndication Agent..................................................... 66
SECTION 10. MISCELLANEOUS 66
10.1 Amendments and Waivers................................................ 66
10.2 Additional Amendment Provisions....................................... 67
10.3 Notices............................................................... 67
10.4 No Waiver; Cumulative Remedies........................................ 68
10.5 Survival of Representations and Warranties............................ 68
10.6 Payment of Expenses and Taxes......................................... 68
10.7 Successors and Assigns; Participations and Assignments................ 69
10.8 Adjustments; Set-off.................................................. 72
10.9 Counterparts.......................................................... 72
10.10 Severability.......................................................... 73
10.11 Integration........................................................... 73
10.12 GOVERNING LAW......................................................... 73
10.13 Submission To Jurisdiction; Waivers................................... 73
10.14 Acknowledgements...................................................... 73
10.15 Releases of Guarantees and Liens...................................... 74
10.16 Confidentiality....................................................... 74
10.17 WAIVERS OF JURY TRIAL................................................. 75
10.18 USA PATRIOT ACT....................................................... 75
10.19 Administrative Agent's Discretion in Dealing with Collateral.......... 75
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SCHEDULES:
1.1A Commitments
1.1B Mortgaged Property and Mortgage Filing Jurisdictions
1.1C Subsidiary Guarantors
4.4 Consents, Authorizations, Filings and Notices
4.15 Subsidiaries
4.19(a) UCC Filing Jurisdictions
4.19(b) Real Property
5.3 Conditions Subsequent With Respect to Mortgaged Properties
7.2(d) Existing Indebtedness
7.3(j) Existing Liens
7.5(k) Permitted Dispositions
7.8(j) Permitted Investments
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Mortgage
E Form of Assignment and Assumption
F-1 Form of Legal Opinion of Shearman & Sterling LLP
F-2 Form of Legal Opinion of General Counsel to the Borrower
G Form of Prepayment Option Notice
H Form of Exemption Certificate
I [Intentionally Omitted]
J Form of Borrowing Base Certificate
THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement"),
dated as of June 14, 2005, (amending and restating the Second Amended and
Restated Competitive Advance and Revolving Credit Facility dated as of June 18,
2004, which in turn amended and restated the Amended and Restated Competitive
Advance and Revolving Credit Facility dated as of June 23, 2000, which in turn
amended and restated the Competitive Advance and Revolving Credit Facility dated
as of January 4, 1999), among DELPHI CORPORATION, a Delaware corporation (the
"Borrower"), the several banks and other financial institutions or entities from
time to time parties to this Agreement (the "Lenders"), and JPMORGAN CHASE BANK,
N.A., as administrative agent.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in
this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the average of the
rates of interest per annum publicly announced from time to time by each
Reference Lender as its prime rate in effect at its principal office in New York
City (the Prime Rate not being intended to be the lowest rate of interest
charged by any Reference Lender in connection with extensions of credit to
debtors); provided that, in the case of Swingline Loans of any Swingline Lender,
the Prime Rate shall be determined based upon the rate of interest publicly
announced from time to time by such Swingline Lender as its prime rate in effect
at its principal office in New York City. Any change in the ABR due to a change
in the Prime Rate or the Federal Funds Effective Rate shall be effective as of
the opening of business on the effective day of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR.
"Administrative Agent": JPMorgan Chase Bank, N.A., together with its
affiliates, as an arranger of the Commitments and as the administrative agent
for the Lenders under this Agreement and the other Loan Documents, together with
any of its successors.
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to (a) until the Closing Date, the aggregate amount of such
Lender's Commitments at such time and (b) thereafter, the sum of (i) the
aggregate then unpaid principal amount of such Lender's Term Loans and (ii) the
amount of such Lender's Revolving Commitment then in effect or, if the Revolving
Commitments have been terminated, the amount of such Lender's Revolving
Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate Exposure
at such time to the Aggregate Exposure of all Lenders at such time.
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"Aggregate Extensions of Credit": at any time, the sum of the
aggregate principal amount of outstanding Term Loans and the Total Revolving
Extensions of Credit.
"Agreement": as defined in the preamble hereto.
"Applicable Margin": (a) with respect to Term Loans, a rate per
annum equal to (i) 6.50%, in the case of Eurodollar Loans and (ii) 5.50%, in the
case of ABR Loans and (b) with respect to Revolving Loans and Swingline Loans,
the rate per annum as determined pursuant to the Pricing Grid.
"Application": an application, in such form as the applicable
Issuing Lender may specify from time to time, requesting such Issuing Lender to
open a Letter of Credit.
"Approved Fund": as defined in Section 10.7(b).
"Arrangers": X.X. Xxxxxx Securities Inc. and Citigroup Global
Markets Inc.
"Asset Sale": any Disposition of property or series of related
Dispositions of property (excluding any such Disposition permitted by clause
(a), (b), (c), (f), (g), (i), (j) or (k) of Section 7.5) that yields gross
proceeds to any Group Member (valued at the initial principal amount thereof in
the case of non-cash proceeds consisting of notes or other debt securities and
valued at fair market value in the case of other non-cash proceeds) in excess of
$500,000.
"Assignee": as defined in Section 10.7(b).
"Assignment and Assumption": an Assignment and Assumption,
substantially in the form of Exhibit E.
"Automotive Holdings Group": a division within Delphi Automotive
Systems LLC comprised of select product lines and plant sites that do not meet
Borrower's targets for net income or other financial metrics, with such
additions and deletions to product lines and plant sites as the Borrower may
from time to time determine (in a manner consistent with the criteria used on
the date hereof to include product lines and plant sites in such division) and
as such divisional name may be changed from time to time.
"Available Revolving Commitment": as to any Revolving Lender at any
time, an amount equal to the excess, if any, of (a) such Lender's Revolving
Commitment then in effect over (b) such Lender's Revolving Extensions of Credit
then outstanding; provided, that in calculating any Lender's Revolving
Extensions of Credit for the purpose of determining such Lender's Available
Revolving Commitment pursuant to Section 2.8(a), the aggregate principal amount
of Swingline Loans then outstanding shall be deemed to be zero.
"Battery Sale": the sale by the Borrower of its battery business to
Xxxxxxx Controls Inc.
"Benefitted Lender": as defined in Section 10.8(a).
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower": as defined in the preamble hereto.
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"Borrowing Base": as of the last day of each month, the sum of (a)
85% of accounts receivable (excluding accounts receivable which have been sold
into any Permitted Receivables Financing) of the Borrower and its Domestic
Subsidiaries, (b) 60% of inventory (including raw materials, work in progress
and finished goods) located in the United States of the Borrower and its
Domestic Subsidiaries, together with inventory owned by the Borrower and its
Domestic Subsidiaries which is consigned to Mexican Subsidiaries of the
Borrower, provided that the rights of the Borrower and its Domestic Subsidiaries
under the agreements pursuant to which such inventory is consigned shall be
subject to a first priority security interest in favor of the Administrative
Agent for the benefit of the Lenders and (c) at all times, $750,000,000 with
respect to plants, property and equipment located in the United States of the
Borrower and its Domestic Subsidiaries, such aggregate amount to be evidenced by
the most recent Borrowing Base Certificate delivered to the Administrative Agent
pursuant to Section 6.2(e).
"Borrowing Base Certificate": a certificate, signed by a Responsible
Officer of the Borrower, in the form of Exhibit J or such other form as is
acceptable to the Administrative Agent in its sole discretion.
"Borrowing Date": any Business Day specified by the Borrower as a
date on which the Borrower requests the relevant Lenders to make Loans
hereunder.
"Business": as defined in Section 4.17(b).
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close, provided, that with respect to notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, such day is
also a day for trading by and between banks in Dollar deposits in the interbank
eurodollar market.
"Capital Expenditures": for any period, with respect to any Person,
the aggregate of all cash expenditures by such Person and its Subsidiaries for
the acquisition or leasing (pursuant to a capital lease) of fixed or capital
assets or additions to equipment (including replacements, capitalized repairs
and improvements during such period) or other tangible or intangible assets that
are or should be capitalized under GAAP on a consolidated balance sheet of such
Person and its Subsidiaries; provided, that "Capital Expenditures" shall not
include (x) expenditures made in connection with the replacement, substitution
or restoration of assets (i) to the extent financed from insurance proceeds paid
on account of the loss of or damage to the assets being replaced or restored or
(ii) with awards of compensation arising from the taking or the threat of taking
by eminent domain or condemnation of the assets being replaced or (y) the
purchase of plant, property and equipment made within twelve months of the date
of any Asset Sale to the extent purchased with the proceeds of such sale.
"Capital Lease Obligations": as to any Person, the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
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"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits, overnight bank
deposits or bank notes having maturities of 270 days or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States or any state thereof having combined capital and
surplus of not less than $250,000,000; (c) commercial paper of an issuer rated
at least A-2 by S&P or P-2 by Xxxxx'x, or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and maturing
within six months from the date of acquisition; (d) repurchase obligations of
any Lender or of any commercial bank satisfying the requirements of clause (b)
of this definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Xxxxx'x; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; (g) money market mutual or similar funds that invest exclusively in
assets satisfying the requirements of clauses (a) through (f) of this
definition; (h) money market funds that (i) comply with the criteria set forth
in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are
rated AAA by S&P and Aaa by Xxxxx'x and (iii) have portfolio assets of at least
$5,000,000,000; or (i) in the case of any Foreign Subsidiary, (x) direct
obligations of the sovereign nation (or any agency thereof) in which such
Foreign Subsidiary is organized or is conducting business or in obligations
fully and unconditionally guaranteed by such sovereign nation (or any agency
thereof), or (y) investments of the type and maturity described in clauses (a)
through (g) above of foreign obligors, which investments or obligors have
ratings described in such clauses or equivalent ratings from comparable foreign
rating agencies, with references in clauses (a), (b) and (d) above to the
"United States" being understood to mean the sovereign nation in which such
Foreign Subsidiary is organized or conducting business or other jurisdiction
sharing the same currency as such sovereign nation.
"Change of Control": (a) the acquisition of beneficial ownership (as
determined in accordance with Rule 13d-3 under the Securities Exchange Act of
1934, as amended), by any Person or group (within the meaning of the Securities
Exchange Act of 1934, as amended, and the rules of the SEC thereunder as in
effect on the date hereof), of Equity Interests representing more than 35% of
the aggregate ordinary voting power represented by the issued and outstanding
Equity Interests of the Borrower; (b) occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Borrower by Persons
who were neither (i) nominated by the board of directors of the Borrower nor
(ii) appointed by directors so nominated; or (c) the acquisition of direct or
indirect Control of the Borrower by any Person or group. For purposes of this
definition, "Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Closing Date": the date on which the conditions precedent set forth
in Section 5.1 shall have been satisfied, which date is June 14, 2005.
"CNTA Exception": the exception set forth in Section 4.06 of the
1999 Indenture providing that the Borrower and certain of its Subsidiaries may
issue or assume Debt (as defined in the 1999 Indenture) and Attributable Debt
(as defined in the 1999 Indenture) which is secured by a Mortgage (as defined in
the 1999 Indenture) on certain assets of the Borrower and certain of its
Subsidiaries without
5
requiring the Securities (as defined in the 1999 Indenture) to be equally and
ratably secured so long as such Debt and Attributable Debt does not exceed 15%
of Consolidated Net Tangible Assets (as defined in the 1999 Indenture) as
reflected in the audited consolidated financial statements for the most recently
completed fiscal year prior to the date such secured Debt or Attributable Debt
is issued or assumed.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any Security
Document.
"Commitment": as to any Lender, the sum of the Term Commitment and
the Revolving Commitment of such Lender.
"Commitment Fee Rate": the rate per annum as determined pursuant to
the Pricing Grid.
"Commonly Controlled Entity": an entity, whether or not
incorporated, that is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B.
"Conduit Lender": any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written instrument;
provided, that the designation by any Lender of a Conduit Lender shall not
relieve the designating Lender of any of its obligations to fund a Loan under
this Agreement if, for any reason, its Conduit Lender fails to fund any such
Loan, and the designating Lender (and not the Conduit Lender) shall have the
sole right and responsibility to deliver all consents and waivers required or
requested under this Agreement with respect to its Conduit Lender, and provided,
further, that no Conduit Lender shall (a) be entitled to receive any greater
amount pursuant to Section 2.18, 2.19, 2.20 or 10.5 than the designating Lender
would have been entitled to receive in respect of the extensions of credit made
by such Conduit Lender or (b) be deemed to have any Commitment.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated May 2005 and furnished to certain Lenders.
"Consolidated Current Assets": at any date, all amounts (other than
cash and Cash Equivalents) that would, in conformity with GAAP, be set forth
opposite the caption "total current assets" (or any like caption) on a
consolidated balance sheet of the Borrower and its Subsidiaries at such date.
"Consolidated Current Liabilities": at any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption "total current
liabilities" (or any like caption) on a consolidated balance sheet of the
Borrower and its Subsidiaries at such date, but excluding (a) the current
portion of any Funded Debt of the Borrower and its Subsidiaries and (b) without
duplication of clause (a) above, all Indebtedness consisting of Revolving Loans
or Swingline Loans to the extent otherwise included therein.
"Consolidated EBITDA": for any period, Consolidated Net Income for
such period plus, without duplication and to the extent reflected as a charge in
the statement of such Consolidated Net Income for such period, the sum of (a)
income tax expense, (b) interest expense, (c) amortization or write-off of debt
discount and debt issuance costs and commissions, discounts and other fees and
charges
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associated with Indebtedness (including the Loans), (d) depreciation and
amortization expense, (e) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (f) any extraordinary, unusual or
non recurring non cash expenses or losses, (g) any expenses accounted by the
Borrower or any of it Subsidiaries in such period for post-employment benefits
under FAS 106 and (h) beginning with the period of four fiscal quarters ending
on March 31, 2005, any cash charges in respect of restructurings, plant
closings, headcount reductions or other similar actions related to the
operations of the Borrower and its Subsidiaries, provided that, solely for the
purpose of this definition, the aggregate amount of all charges under this
clause (h) shall not exceed (1) for any four fiscal quarter period ending on
June 30, 2005 and September 30, 2005, $225,000,000, (2) for any four fiscal
quarter period ending on December 31, 2005, March 31, 2006, June 30, 2006,
September 30, 2006 and December 31, 2006, $175,000,000 and (3) for any four
fiscal quarter period ending thereafter, $0 and minus, to the extent included in
the statement of such Consolidated Net Income for such period, the sum of (a)
interest income, (b) any extraordinary, unusual or non recurring income or
gains, all as determined on a consolidated basis and (c) any cash payments made
during such period in respect of expenses described in clause (g) above taken in
such period.
"Consolidated Net Income": for any period, the consolidated net
income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Tangible Assets": at any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption "total assets"
(or any like caption) on a consolidated balance sheet of the Borrower and its
consolidated Subsidiaries less (a) all current liabilities and (b) goodwill,
trade names, patents, unamortized debt discount, organization expenses and other
like intangibles of the Borrower and its consolidated Subsidiaries.
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets on such date over Consolidated Current Liabilities
on such date.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Disposition": with respect to any property, any sale, lease, sale
and leaseback, assignment (other than for security or collection in the ordinary
course of business), conveyance, transfer or other disposition thereof. The
terms "Dispose" and "Disposed of" shall have correlative meanings.
"Dollars" and "$": dollars in lawful currency of the United States.
"Domestic Subsidiary": any Subsidiary of the Borrower organized
under the laws of any jurisdiction within the United States.
"Earnings Release 8-K": the Form 8-K filed by the Borrower on May
13, 2005 relating to the certain financial information of the Borrower.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
7
standards of conduct concerning protection of human health (but excluding worker
health and safety requirements), natural resources or the environment.
"Equity Interests": 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": the Employee Retirement Income Security Act of 1974, as
amended.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Telerate screen as of 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period. In the event that such rate
does not appear on Page 3750 of the Telerate screen (or otherwise on such
screen), the "Eurodollar Base Rate" shall be determined by reference to such
other comparable publicly available service for displaying eurodollar rates as
may be selected by the Administrative Agent or, in the absence of such
availability, by reference to the average of the respective rates notified to
the Administrative Agent by each of the Reference Lenders as the rate at which
such Reference Lender is offered Dollar deposits at or about 11:00 A.M., New
York City time, two Business Days prior to the beginning of such Interest Period
in the interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upward to the nearest 1/100th
of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans
under a particular Facility the then current Interest Periods with respect to
all of which begin on the same date and end on the same later date (whether or
not such Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
8
"Excepted Secured Debt Amount": on any date, an amount equal to 15%
of Consolidated Net Tangible Assets (as defined in the 1999 Indenture),
determined based on the most recent audited consolidated financial statements of
the Borrower available to the Administrative Agent.
"Excess Cash Flow": for any fiscal year of the Borrower, the excess,
if any, of (a) the sum, without duplication, of (i) Consolidated Net Income for
such fiscal year, (ii) the amount of all non-cash charges (including
depreciation and amortization) deducted in arriving at such Consolidated Net
Income, (iii) decreases in Consolidated Working Capital for such fiscal year,
(iv) the aggregate net amount of loss in accordance with GAAP on the Disposition
of property by the Borrower and its Subsidiaries during such fiscal year (other
than sales of inventory in the ordinary course of business), to the extent
deducted in arriving at such Consolidated Net Income and (v) the amount of all
extraordinary cash gains received by the Borrower and its Subsidiaries to the
extent not committed for reinvestment within 360 days of receipt of such cash
over (b) the sum, without duplication, of (i) the amount of all non-cash credits
in accordance with GAAP included in arriving at such Consolidated Net Income,
(ii) the aggregate amount actually paid by the Borrower and its Subsidiaries in
cash during such fiscal year on account of Capital Expenditures (excluding the
principal amount of Indebtedness incurred in connection with such expenditures
and any such expenditures financed with the proceeds of any Reinvestment
Deferred Amount), (iii) the aggregate amount of all regularly scheduled
principal payments of Funded Debt (including the Term Loans) of the Borrower and
its Subsidiaries made during such fiscal year (other than in respect of any
revolving credit facility to the extent there is not an equivalent permanent
reduction in commitments thereunder), (iv) increases in Consolidated Working
Capital for such fiscal year, (v) the aggregate net amount of gain on a GAAP
basis on the Disposition of property by the Borrower and its Subsidiaries during
such fiscal year (other than sales of inventory in the ordinary course of
business), to the extent included in arriving at such Consolidated Net Income,
(vi) the aggregate amount of all cash pension contributions and cash
contributions with respect to OPEB made by the Borrower and its Subsidiaries,
(vii) the aggregate amount of cash paid by the Borrower and its Subsidiaries for
restructuring charges, (viii) the aggregate amount of Restricted Payments made
in cash by the Borrower pursuant to Section 7.6(b), (ix) the aggregate amount of
cash from operations used to consummate an Acquisition and (x) Net Cash Proceeds
from any Asset Sale pending reinvestment in accordance with Section 2.11.
"Excess Cash Flow Application Date": as defined in Section 2.11(c).
"Excluded Foreign Subsidiary": any Foreign Subsidiary in respect of
which either (a) the pledge of all of the Capital Stock of such Subsidiary as
Collateral or (b) the guaranteeing by such Subsidiary of the Obligations, would
(x) in the good faith judgment of the Borrower, be reasonably likely to result
in adverse tax consequences to the Borrower, (y) be contrary to, or ineffective
under, applicable law or (z) be unduly onerous to the Borrower or its applicable
Subsidiaries in relation to the benefits afforded to the Administrative Agent
and the Lenders thereby as reasonably determined by the Administrative Agent.
"Excluded Refinanced Debt": each of (a) Permitted Receivables
Financings and (b) unsecured lines of credit for Foreign Subsidiaries not in
excess of $275,000,000.
"Existing Credit Agreement": the 5-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility, dated as of June 18, 2004,
among Delphi Corporation, the several lenders from time to time parties thereto,
Citibank, N.A., as syndication agent, Barclays Bank PLC, Deutsche Bank
Securities Inc. and HSBC Bank USA, as documentation agents, and JPMorgan Chase
Bank, as administrative agent.
9
"Existing Indentures": the 1999 Indenture and the other indentures
of the Borrower described on Schedule 7.2(d).
"Existing 364-Day Credit Agreement": the 364-Day Sixth Amended and
Restated Competitive Advance and Revolving Credit Facility, dated as of June 18,
2004, among Delphi Corporation, the several lenders from time to time parties
thereto, Citibank, N.A., as syndication agent, Barclays Bank PLC, Deutsche Bank
Securities Inc. and HSBC Bank USA, as documentation agents, and JPMorgan Chase
Bank, as administrative agent.
"Facility": each of (a) the Term Commitments and the Term Loans made
thereunder (the "Term Facility") and (b) the Revolving Commitments and the
extensions of credit made thereunder (the "Revolving Facility").
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.
"Fee Payment Date": (a) the third Business Day following the last
day of each March, June, September and December and (b) the last day of the
Revolving Commitment Period.
"Fitch": Fitch Investors Services Inc.
"Foreign Borrower": as defined in Section 2.23.
"Foreign Facility Lenders": as defined in Section 2.23.
"Foreign Revolving Facility": as defined in Section 2.23.
"Foreign Subsidiary": any Subsidiary of the Borrower that is not a
Domestic Subsidiary.
"Funded Debt": as to any Person, all Indebtedness of such Person
that matures more than one year from the date of its creation or matures within
one year from such date but is renewable or extendible, at the option of such
Person, to a date more than one year from such date or arises under a revolving
credit or similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year from such date, including all
current maturities and current sinking fund payments in respect of such
Indebtedness whether or not required to be paid within one year from the date of
its creation and, in the case of the Borrower, Indebtedness in respect of the
Loans.
"Funding Office": the office of the Administrative Agent specified
in Section 10.3 or such other office as may be specified from time to time by
the Administrative Agent as its funding office by written notice to the Borrower
and the Lenders.
"GAAP": generally accepted accounting principles in the United
States as in effect from time to time, except that for purposes of Section 7.1,
GAAP shall be determined on the basis of such principles in effect on the date
hereof. In the event that any "Accounting Change" (as defined below) shall occur
and such change results in a change in the method of calculation of financial
covenants, standards or terms in this Agreement, then the Borrower and the
Administrative Agent agree to enter into negotiations in order to amend such
provisions of this Agreement so as to reflect equitably such
10
Accounting Changes with the desired result that the criteria for evaluating the
Borrower's financial condition shall be the same after such Accounting Changes
as if such Accounting Changes had not been made. Until such time as such an
amendment shall have been executed and delivered by the Borrower, the
Administrative Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Changes had not occurred. "Accounting Changes"
refers to changes in accounting principles required by the promulgation of any
rule, regulation, pronouncement or opinion by the Financial Accounting Standards
Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Group Members": the collective reference to the Borrower and its
Subsidiaries.
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement to be executed and delivered by the Borrower and each Subsidiary
Guarantor, substantially in the form of Exhibit A.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation, including a reimbursement, counterindemnity or similar
obligation, of the guaranteeing Person that guarantees or in effect guarantees,
or which is given to induce the creation of a separate obligation by another
Person (including any bank under any letter of credit) that guarantees or in
effect guarantees, any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly, including any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"Immaterial Subsidiary": on any date, any Subsidiary of the Borrower
whose assets or revenues do not exceed 2% of the consolidated total assets or
revenues of the Borrower and its Subsidiaries as of the last day of the most
recently ended fiscal quarter; provided that the aggregate amount of assets or
revenues of all Immaterial Subsidiaries shall not exceed 5% of the consolidated
total assets or revenues of the Borrower and its Subsidiaries as of the last day
of the most recently ended fiscal quarter (the "5% Requirement"); provided
further that in the event that the designation of any Subsidiary as an
Immaterial Subsidiary would result in the failure to comply with the foregoing
5% Requirement, the
11
Borrower shall notify the Administrative Agent pursuant to Section 6.2(a) as to
which Subsidiary or Subsidiaries shall no longer be deemed an Immaterial
Subsidiary or Subsidiaries, to the extent required to ensure compliance with the
5% Requirement.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than (i)
current trade payables incurred in the ordinary course of such Person's
business, (ii) the deferred purchase price for tooling and equipment in the
ordinary course of business and (iii) services in respect of information
technology provided in the ordinary course of business), (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar instruments,
(d) all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party or applicant under or in
respect of acceptances, letters of credit, surety bonds or similar arrangements,
(g) the liquidation value of all mandatorily redeemable preferred Capital Stock
of such Person, (h) all Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through (g) above, (i) all
obligations of the kind referred to in clauses (a) through (h) above secured by
(or for which the holder of such obligation has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including accounts and
contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation, and (j) for the purposes of
Section 8(e) only, all obligations of such Person in respect of Swap Agreements;
provided, that, for the avoidance of doubt, synthetic leases in effect on the
Closing Date for the Borrower's world headquarters located in Troy, Michigan and
manufacturing facilities located in Gadsden, Alabama, Tuscaloosa, Alabama and
Vienna Township, Ohio, shall not constitute "Indebtedness" hereunder. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness expressly provide that such Person is not liable
therefor.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": experiencing the condition of Insolvency.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
copyrights, copyright licenses, patents, patent licenses, trademarks, trademark
licenses, technology, know-how and processes, and all rights to xxx at law or in
equity for any infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any ABR Loan (other than any
Swingline Loan), the last day of each March, June, September and December to
occur while such Loan is outstanding and the final maturity date of such Loan,
(b) as to any Eurodollar Loan having an Interest Period of three months or less,
the last day of such Interest Period, (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day that is three months, or a
whole multiple thereof, after the first day of such Interest Period and the last
day of such Interest Period, (d) as to any Loan (other than any Revolving Loan
that is an ABR Loan and any Swingline Loan), the date of any repayment or
prepayment made in respect thereof and (e) as to any Swingline Loan, the day
that such Loan is required to be repaid.
12
"Interest Period": as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not later than 11:00 A.M., New York City time, on the date
that is three Business Days prior to the last day of the then current Interest
Period with respect thereto; provided that, all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not
a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) the Borrower may not select an Interest Period under a
particular Facility that would extend beyond the Revolving Termination
Date or beyond the date final payment is due on the Term Loans;
(iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so as not to require
a scheduled repayment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"Investment Credit": the amount of dividends, distributions, returns
of equity, repayments of advances or similar payments paid to the Borrower or
any Subsidiary Guarantor after April 1, 2005 through the maturity of the Term
Loans by any Person in which Investments may be made under Section 7.8(i) or
7.8(k).
"Investments": as defined in Section 7.8.
"Issuing Lender": each of JPMorgan Chase Bank, N.A. or any affiliate
thereof, and any other consenting Lender selected by the Borrower and reasonably
acceptable to the Administrative Agent, each in its capacity as issuer of any
Letter of Credit.
"JV Subsidiary": any Subsidiary of a Group Member which is not a
Wholly Owned Subsidiary and as to which the business and management thereof is
jointly controlled by the holders of the Equity Interests therein pursuant to
customary joint venture arrangements.
"L/C Commitment": as to any Issuing Lender, the obligation of such
Issuing Lender to issue Letters of Credit pursuant to Section 3.1 in an
aggregate principal amount not to exceed the amount set forth under the heading
"L/C Commitment" opposite such Lender's name on Schedule 1.1A. The aggregate
amount of L/C Commitments is $325,000,000.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired portion of the aggregate amount
available to be drawn under the then outstanding Letters of Credit and (b) the
aggregate amount of drawings under Letters of Credit that have not then been
reimbursed pursuant to Section 3.5.
13
"L/C Participants": the collective reference to all the Revolving
Lenders other than the Issuing Lender.
"Lenders": as defined in the preamble hereto; provided, that unless
the context otherwise requires, and subject to the restrictions set forth in the
definition of "Conduit Lender" under this Section 1.1, each reference herein to
the Lenders shall be deemed to include any Conduit Lender.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents, the Notes
and any amendment, waiver, supplement or other modification to any of the
foregoing.
"Loan Parties": each Group Member that is a party to a Loan
Document.
"Majority Facility Lenders": (a) with respect to the Term Facility,
the holders of more than 50% of the aggregate unpaid principal amount of the
Term Loans and (b) with respect to the Revolving Facility, the holders of more
than 50% of the Total Revolving Commitments (or, after the termination of the
Revolving Commitments, the holders of more than 50% of the Total Revolving
Extensions of Credit).
"Material Adverse Effect": a material adverse effect on the
business, property, operations or financial condition of the Borrower and its
Subsidiaries taken as a whole or the validity or enforceability of this
Agreement or any of the other Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder; provided that
events, developments and circumstances disclosed in the Restatement 8-Ks (and
any shareholders' litigation arising out of such disclosed matters), in the
Earnings Release 8-K, in the Form 8-K filed by the Borrower on June 9, 2005 and
any information disclosed to the Lenders prior to the date hereof regarding the
elimination of deferred tax assets shall not be considered to have such a
material adverse effect, although subsequent events, developments and
circumstances relating to such disclosed matters which reveal material adverse
changes in such disclosed matters may be considered in determining whether such
subsequent events, developments and circumstances have had or could reasonably
be expected to have a Material Adverse Effect.
"Material Group Members": all Group Members other than Immaterial
Subsidiaries.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under, or that could reasonably result in the imposition of liability
under, any Environmental Law, including asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Moody's": Xxxxx'x Investors Service, Inc.
14
"Mortgaged Properties": the real properties listed on Schedule 1.1B
and any other real properties with respect to which the Administrative Agent for
the benefit of the Lenders shall be granted a Lien pursuant to a Mortgage in
accordance with Section 6.9.
"Mortgages": each of the mortgages and deeds of trust made by any
Loan Party in favor of, or for the benefit of, the Administrative Agent for the
benefit of the Lenders, substantially in the form of Exhibit D (with such
changes thereto as shall be advisable under the law of the jurisdiction in which
such mortgage or deed of trust is to be recorded).
"Multiemployer Plan": a Plan that is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received), net of attorneys' fees,
accountants' fees, investment banking fees, commissions, premiums, amounts
required to be applied to the repayment of Indebtedness secured by a Lien
expressly permitted hereunder on any asset that is the subject of such Asset
Sale or Recovery Event (other than any Lien pursuant to a Security Document) and
other customary fees and expenses actually incurred in connection therewith and
net of taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any available tax credits or deductions and any tax
sharing arrangements) and a reasonable reserve for purchase price adjustments
and indemnification payments that could reasonably be expected to arise during
the term of the Facilities and (b) in connection with any incurrence of
Indebtedness, the cash proceeds received from such issuance or incurrence, net
of attorneys' fees, investment banking fees, premiums, accountants' fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred in connection therewith.
"1999 Indenture": the Indenture, dated as of April 28, 1999, between
the Borrower and The First National Bank of Chicago with respect to $500 million
of securities bearing interest at 6.50% and maturing August 15, 2013, $500
million of securities bearing interest at 6.55% and maturing June 15, 2006, $500
million of securities bearing interest at 6.50% and maturing on May 1, 2009 and
$500 million of securities bearing interest at 7.125% and maturing on May 1,
2029.
"Non-Consenting Lender": as defined in Section 10.2.
"Non-Excluded Taxes": as defined in Section 2.19(a).
"Non-Recourse Debt": any Indebtedness in respect of which no Loan
Party provides any credit support (including, without limitation, in the form of
a guarantee or standby letter of credit).
"Non-U.S. Lender": as defined in Section 2.19(d).
"Notes": the collective reference to any promissory note evidencing
Loans.
"Obligations": the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans and Reimbursement Obligations
and interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Loans and all other obligations and
liabilities of the Borrower to the Administrative Agent or to any Lender (or, in
the case of Specified Swap Agreements, any affiliate of any Lender), whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter
15
incurred, which may arise under, out of, or in connection with, this Agreement,
any other Loan Document, the Letters of Credit, any Specified Swap Agreement or
any other document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including all fees, charges and disbursements of
counsel to the Administrative Agent or to any Lender that are required to be
paid by the Borrower pursuant hereto) or otherwise.
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan Document.
"Participant": as defined in Section 10.7(c).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Receivables Financing": Indebtedness and other financings
relating to securitizations and factoring arrangements not in excess of
(euro)860,000,000 (for all European securitization and Euro-based factoring
facilities) and $775,000,000 (for all U.S. securitization and all other global
factoring programs).
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": any employee benefit plan that is covered by ERISA and in
respect of which the Borrower or a Commonly Controlled Entity is (or, if such
plan were terminated at such time, would under Section 4069 of ERISA be deemed
to be) an "employer" as defined in Section 3(5) of ERISA.
"Pricing Grid": the table set forth below.
Rating Applicable Margin Applicable Margin Commitment Fee
Level Xxxxx'x, S&P and Fitch for ABR Loans for Eurodollar Loans Rate
----- ---------------------- ----------------- -------------------- --------------
1 Ba1/BB+/BB+ or higher 2.00% 3.00% 0.375%
2 Ba2/BB/BB 2.50% 3.50% 0.50%
3 Ba3/BB-/BB- 3.00% 4.00% 0.50%
4 B1/B+/B+ 3.50% 4.50% 0.50%
5 Lower than B1/B+/B+ 4.00% 5.00% 0.50%
If at any date an Event of Default has occurred and is continuing or
the Borrower does not have a Rating other than by reason of the circumstances
referred to in the following sentence, Level 5 shall apply. If the rating system
of Moody's, S&P or Fitch shall change, or if any such rating agency shall cease
to be in the business of rating corporate debt obligations, the Borrower and the
Lenders shall negotiate in good faith to amend the Applicable Margins and
Commitment Fee Rate hereunder to reflect such changed rating system or the
unavailability of Ratings from such rating agency and, pending the
16
effectiveness of any such amendment, the Applicable Margin and Commitment Fee
Rate shall be determined by reference to the Rating most recently in effect
prior to such change or cessation.
In the event the Ratings of S&P, Xxxxx'x and Fitch are in different
levels set forth in the grid above, the lower of the two highest Ratings (i.e.,
the rating set forth in the grid above opposite the higher numerical level
number) shall govern.
"Projections": as defined in Section 6.2(c).
"Properties": as defined in Section 4.17(a).
"Rating": with respect to (i) Moody's, the senior implied rating of
the Borrower, (ii) S&P, the corporate credit rating of the Borrower and (iii)
Fitch, the senior unsecured debt rating of the Borrower.
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of any Group Member.
"Reference Lenders": JPMorgan Chase Bank, N.A., Citicorp USA, Inc.
and Deutsche Bank AG, New York Branch.
"Refunded Swingline Loans": as defined in Section 2.7.
"Register": as defined in Section 10.7(b).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse each Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by any Group Member in
connection therewith that are not applied to prepay the Term Loans pursuant to
Section 2.11(b) as a result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in respect of
which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
Officer stating that no Event of Default has occurred and is continuing (or, if
an Event of Default has occurred and is continuing, that the application of the
Reinvestment Deferred Amount specified in such notice will cure such Event of
Default) and that the Borrower (directly or indirectly through a Subsidiary)
intends and expects to use all or a specified portion of the Net Cash Proceeds
of an Asset Sale or Recovery Event to acquire or repair assets useful in its
business or to pay pension obligations.
"Reinvestment Prepayment Amount": with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended after the date of the Asset Sale or Recovery Event giving rise to such
Reinvestment Event and prior to the relevant Reinvestment Prepayment Date to
acquire or repair assets useful in the business of the Borrower or its
Subsidiaries or to pay pension obligations.
17
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the date occurring twelve months after such Reinvestment Event.
"Remaining Present Value": as of any date with respect to any lease,
the present value as of such date of the scheduled future lease payments with
respect to such lease, determined at a discount rate equal to a market rate of
interest for such lease reasonably determined at the time such lease was entered
into.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg.
Section 4043.
"Required Lenders": at any time, the holders of more than 50% of (a)
until the Closing Date, the Commitments then in effect and (b) thereafter, the
sum of (i) the aggregate unpaid principal amount of the Term Loans then
outstanding and (ii) the Total Revolving Commitments then in effect or, if the
Revolving Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the chief executive officer, president, chief
financial officer or treasurer of the Borrower, but in any event, with respect
to the delivery of financial statements under this Agreement and accompanying
certificates, the chief financial officer of the Borrower.
"Restatement 8-Ks": the Forms 8-K filed by the Borrower on March 4,
2005, March 22, 2005 and May 16, 2005 relating to the restatement of certain
financial statements of the Borrower.
"Restricted Payments": as defined in Section 7.6.
"Revolving Commitment": as to any Lender, the obligation of such
Lender, if any, to make Revolving Loans and participate in Swingline Loans and
Letters of Credit in an aggregate principal and/or face amount not to exceed the
amount set forth under the heading "Revolving Commitment" opposite such Lender's
name on Schedule 1.1A (which shall include the commitment of any Lender under
the Existing Credit Agreement) or in the Assignment and Assumption pursuant to
which such Lender became a party hereto, as the same may be changed from time to
time pursuant to the terms hereof. The original amount of the Total Revolving
Commitments is $1,825,000,000.
"Revolving Commitment Period": the period from and including the
Closing Date to the Revolving Termination Date.
"Revolving Extensions of Credit": as to any Revolving Lender at any
time, an amount equal to the sum of (a) the aggregate principal amount of all
Revolving Loans held by such Lender then outstanding, (b) such Lender's
Revolving Percentage of the L/C Obligations then outstanding and (c) such
Lender's Revolving Percentage of the aggregate principal amount of Swingline
Loans then outstanding; any Revolving Loan of such Revolving Lender, such
Revolving Lender's Revolving
18
Percentage of L/C Obligations with respect to any Letter of Credit and such
Revolving Lender's Revolving Percentage of the principal amount of any Swingline
Loan shall each constitute a "Revolving Extension of Credit" of such Revolving
Lender.
"Revolving Lender": each Lender that has a Revolving Commitment or
that holds Revolving Loans.
"Revolving Loans": as defined in Section 2.4(a).
"Revolving Percentage": as to any Revolving Lender at any time, the
percentage which such Lender's Revolving Commitment then constitutes of the
Total Revolving Commitments or, at any time after the Revolving Commitments
shall have expired or terminated, the percentage which the aggregate principal
amount of such Lender's Revolving Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Loans then outstanding, provided,
that, in the event that the Revolving Loans are paid in full prior to the
reduction to zero of the Total Revolving Extensions of Credit, the Revolving
Percentages shall be determined in a manner designed to ensure that the other
outstanding Revolving Extensions of Credit shall be held by the Revolving
Lenders on a comparable basis.
"Revolving Termination Date": June 18, 2009.
"S&P": Standard & Poor's Ratings Group.
"SEC": the Securities and Exchange Commission, any successor thereto
and any analogous Governmental Authority.
"Securitization Subsidiary": a Wholly Owned Subsidiary of the
Borrower created solely for the purpose of engaging only in activities
reasonably related to or in connection with a Permitted Receivables Financing
and for which neither the Borrower nor any Subsidiary provides credit support.
"Security Documents": the collective reference to the Guarantee and
Collateral Agreement, the Mortgages and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any property of any
Person to secure the obligations and liabilities of any Loan Party under any
Loan Document.
"Senior Secured Debt": on any date, (i) all senior Indebtedness of
the types referred to in clauses (a) through (e) of the defined term
"Indebtedness" (but only, in the case of clauses (b) and (d) of the defined term
"Indebtedness", if such Indebtedness exceeds $10,000,000 on such date) of the
Borrower and its Subsidiaries which is secured by a Lien on any property of the
Borrower or any of its Subsidiaries, including, without limitation, all Term
Loans, Revolving Loans and any other senior secured Indebtedness (including
Indebtedness secured on a second lien basis) permitted under Section 7.2 and
(ii) without duplication, Permitted Receivables Financings and factoring
facilities whether or not constituting "Indebtedness" under such defined term.
"Senior Secured Leverage Ratio": at any date, the ratio of (a)
Senior Secured Debt on such date minus the amount of cash held by the Borrower
and its Subsidiaries on such date in excess of $500,000,000 (provided that the
amount of such cash deducted shall in no event exceed $500,000,000) to (b)
Consolidated EBITDA.
"Single Employer Plan": any Plan that is covered by Title IV of
ERISA, but that is not a Multiemployer Plan.
19
"Solvent": when used with respect to any Person, means that, as of
any date of determination, (a) the amount of the "present fair saleable value"
of the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
"S&P": Standard & Poor's Ratings Group.
"Specified Swap Agreement": any Swap Agreement entered into by the
Borrower and any Lender or affiliate thereof in respect of interest rates,
currency exchange rates or commodity prices.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantor": each Subsidiary of the Borrower other than
any Excluded Foreign Subsidiary, any Securitization Subsidiary and any
Immaterial Subsidiary, which, on the Closing Date, is identified on Schedule
1.1C.
"Supermajority Facility Lenders": (a) with respect to the Term
Facility, the holders of more than 66-2/3% of the aggregate unpaid principal
amount of the Term Loans and (b) with respect to the Revolving Facility, the
holders of more than 66-2/3% of the Total Revolving Commitments (or, after the
termination of the Revolving Commitments, the holders of more than 66-2/3% of
the Total Revolving Extensions of Credit).
"Supermajority Lenders": at any time, the holders of more than
66-2/3% of (a) until the Closing Date, the Commitments then in effect and (b)
thereafter, the sum of (i) the aggregate unpaid principal amount of the Term
Loans then outstanding and (ii) the Total Revolving Commitments then in effect
or, if the Revolving Commitments have been terminated, the Total Revolving
Extensions of Credit then outstanding.
"Swap Agreement": any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments
20
only on account of services provided by current or former directors, officers,
employees or consultants of the Borrower or any of its Subsidiaries shall be a
"Swap Agreement".
"Swingline Commitment": as to any Swingline Lender, the obligation
of such Swingline Lender to make Swingline Loans pursuant to Section 2.6 in an
aggregate principal amount not to exceed the amount set forth under the heading
"Swingline Commitment" opposite such Lender's name on Schedule 1.1A. The
aggregate amount of Swingline Commitments is $375,000,000.
"Swingline Lender": each of JPMorgan Chase Bank, N.A., Citicorp USA,
Inc., any Lender specified on Schedule 1.1A having a Swingline Commitment and
any other consenting Lender selected by the Borrower and acceptable to the
Administrative Agent, each in its capacity as a lender of Swingline Loans.
"Swingline Loans": as defined in Section 2.6.
"Swingline Participation Amount": as defined in Section 2.7.
"Syndication Agent": as defined in the preamble hereto.
"Term Commitment": as to any Lender, the obligation of such Lender,
if any, to make a Term Loan to the Borrower in a principal amount not to exceed
the amount set forth under the heading "Term Commitment" opposite such Lender's
name on Schedule 1.1A. The original aggregate amount of the Term Commitments is
$1,000,000,000.
"Term Lender": each Lender that has a Term Commitment or holds a
Term Loan.
"Term Loans": as defined in Section 2.1.
"Term Percentage": as to any Term Lender at any time, the percentage
which such Lender's Term Commitment then constitutes of the aggregate Term
Commitments (or, at any time after the Closing Date, the percentage which the
aggregate principal amount of such Lender's Term Loans then outstanding
constitutes of the aggregate principal amount of the Term Loans then
outstanding).
"Total Revolving Commitments": at any time, the aggregate amount of
the Revolving Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Lenders
outstanding at such time.
"Transferee": any Assignee or Participant.
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"U.S. or United States": the United States of America.
"Utilized Secured Debt Amount": on any date, the aggregate amount of
(i) Debt (as defined in the 1999 Indenture) of the Borrower and any
Manufacturing Subsidiary (as defined in the 1999 Indenture) secured by a
Mortgage (as defined in the 1999 Indenture) upon any Domestic Manufacturing
Property (as defined in the 0000 Xxxxxxxxx) of the Borrower or any Manufacturing
Subsidiary or upon any shares of stock or indebtedness of any Manufacturing
Subsidiary as of such date and (ii) Attributable Debt (as defined in the 1999
Indenture) of the Borrower and its Manufacturing Subsidiaries in respect of sale
21
and leaseback transactions determined (A) for purposes of Section 2.24, as of
such date and (B) for all other purposes, as of (1) if such date is prior to the
20th day of the calendar month, the last day of the month before the most
recently ended month or (2) if such date is on or after the 20th day of the
calendar month, the last day of the most recently ended month.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor that
is a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or
thereto, (i) accounting terms relating to any Group Member not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the
extent not defined, shall have the respective meanings given to them under
GAAP, (ii) the words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation", (iii) the word "incur"
shall be construed to mean incur, create, issue, assume, become liable in
respect of or suffer to exist (and the words "incurred" and "incurrence"
shall have correlative meanings), (iv) the words "asset" and "property"
shall be construed to have the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including cash,
Capital Stock, securities, revenues, accounts, leasehold interests and
contract rights, and (v) references to agreements or other Contractual
Obligations shall, unless otherwise specified, be deemed to refer to such
agreements or Contractual Obligations as amended, supplemented, restated
or otherwise modified from time to time.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import, when used in this Agreement, shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and
Section, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) References to matters being "to the knowledge of the Borrower"
mean to the knowledge of a Responsible Officer after due inquiry in
accordance with customary practice.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Commitments. Subject to the terms and conditions hereof,
(a) each Term Lender severally agrees to make a term loan (a "Term Loan") to the
Borrower on the Closing Date in an amount not to exceed the amount of the Term
Commitment of such Lender; provided that the aggregate amount of Term Loans made
to the Borrower on the Closing Date shall be in an amount equal to the lesser of
(i) the aggregate amount of the Term Commitments and (ii) the Borrowing Base as
of April 30, 2005; provided further that, after giving effect to all Loans made
on the Closing Date, the Aggregate Extensions of Credit shall not exceed the
Borrowing Base as of April 30, 2005. The Term Loans may
22
from time to time be Eurodollar Loans or ABR Loans, as determined by the
Borrower and notified to the Administrative Agent in accordance with Sections
2.2 and 2.12.
2.2 Procedure for Term Loan Borrowing. The Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, one Business Day
prior to the anticipated Closing Date) requesting that the Term Lenders make the
Term Loans on the Closing Date and specifying (a) the amount to be borrowed and
(b) specifying (i) the then applicable Excepted Secured Debt Amount and (ii) the
Utilized Secured Debt Amount, both before and after giving effect to the Term
Loans to be made on the Closing Date. The Term Loans made on the Closing Date
shall initially be ABR Loans and, unless otherwise agreed by the Administrative
Agent in its sole discretion, the initial Term Loan may only be converted into a
Eurodollar Loan having an Interest Period of one month. Upon receipt of such
notice the Administrative Agent shall promptly notify each Term Lender thereof.
Not later than 11:00 A.M., New York City time, on the Closing Date each Term
Lender shall make available to the Administrative Agent at the Funding Office an
amount in immediately available funds equal to the Term Loan or Term Loans to be
made by such Lender. The Administrative Agent shall credit the account of the
Borrower on the books of such office of the Administrative Agent with the
aggregate of the amounts made available to the Administrative Agent by the Term
Lenders in immediately available funds.
2.3 Repayment of Term Loans. The Term Loan of each Lender shall
mature in 24 consecutive quarterly installments, each of which shall be in an
amount equal to such Lender's Term Percentage multiplied by the amount set forth
below opposite such installment:
INSTALLMENT PRINCIPAL AMOUNT
------------------ ----------------
September 30, 2005 $ 2,500,000
December 31, 2005 $ 2,500,000
March 31, 2006 $ 2,500,000
June 30, 2006 $ 2,500,000
September 30, 2006 $ 2,500,000
December 31, 2006 $ 2,500,000
March 31, 2007 $ 2,500,000
June 30, 2007 $ 2,500,000
September 30, 2007 $ 2,500,000
December 31, 2007 $ 2,500,000
March 31, 2008 $ 2,500,000
June 30, 2008 $ 2,500,000
September 30, 2008 $ 2,500,000
December 31, 2008 $ 2,500,000
March 31, 2009 $ 2,500,000
June 30, 2009 $ 2,500,000
September 30, 2009 $ 2,500,000
December 31, 2009 $ 2,500,000
March 31, 2010 $ 2,500,000
June 30, 2010 $ 2,500,000
September 30, 2010 $ 2,500,000
December 31, 2010 $ 2,500,000
March 31, 2011 $ 2,500,000
June 14, 2011 $ 942,500,000
23
2.4 Revolving Commitments. (a) Subject to the terms and conditions
hereof, each Revolving Lender severally agrees to make revolving credit loans
("Revolving Loans") to the Borrower from time to time during the Revolving
Commitment Period in an aggregate principal amount at any one time outstanding
which, when added to such Lender's Revolving Percentage of the sum of (i) the
L/C Obligations then outstanding and (ii) the aggregate principal amount of the
Swingline Loans then outstanding, does not exceed the amount of such Lender's
Revolving Commitment; provided, that, the Borrower shall not request, and no
Revolving Lender shall make, any Revolving Loan if, after giving effect to the
making of such Revolving Loan, the Aggregate Extensions of Credit would exceed
the Borrowing Base. During the Revolving Commitment Period the Borrower may use
the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole
or in part, and reborrowing, all in accordance with the terms and conditions
hereof. The Revolving Loans may from time to time be Eurodollar Loans or ABR
Loans, as determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.5 and 2.12.
(b) The Borrower shall repay all outstanding Revolving Loans on the
Revolving Termination Date.
2.5 Procedure for Revolving Loan Borrowing. The Borrower may borrow
under the Revolving Commitments during the Revolving Commitment Period on any
Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 12:00 Noon, New York City time, (a) three Business Days prior to the
requested Borrowing Date, in the case of Eurodollar Loans, or (b) one Business
Day prior to the requested Borrowing Date, in the case of ABR Loans) (provided
that any such notice of a borrowing of ABR Loans under the Revolving Facility to
finance payments required by Section 3.5 may be given not later than 10:00 A.M.,
New York City time, on the date of the proposed borrowing), (A) specifying (i)
the amount and Type of Revolving Loans to be borrowed, (ii) the requested
Borrowing Date, (iii) in the case of Eurodollar Loans, the respective amounts of
each such Type of Loan and the respective lengths of the initial Interest Period
therefor and (iv) (1) the then applicable Excepted Secured Debt Amount and (2)
the Utilized Secured Debt Amount, both before and after giving effect to the
requested Revolving Loans and (B) certifying that the amount of the Aggregate
Extensions of Credit, after giving effect to the requested Revolving Loans, do
not exceed the Borrowing Base reflected on the most recent Borrowing Base
Certificate delivered to the Administrative Agent pursuant to Section 6.2(e).
Each borrowing under the Revolving Commitments shall be in an amount equal to
$10,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if the then
aggregate Available Revolving Commitments are less than $10,000,000, such lesser
amount); provided, that any Swingline Lender may request, on behalf of the
Borrower, borrowings under the Revolving Commitments that are ABR Loans in other
amounts pursuant to Section 2.7(b). Upon receipt of any such notice from the
Borrower, the Administrative Agent shall promptly notify each Revolving Lender
thereof. Each Revolving Lender will make the amount of its pro rata share of
each borrowing available to the Administrative Agent for the account of the
Borrower at the Funding Office prior to 11:00 A.M., New York City time, on the
Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower
by the Administrative Agent crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made available to the
Administrative Agent by the Revolving Lenders and in like funds as received by
the Administrative Agent.
2.6 Swingline Commitment. (a) Subject to the terms and conditions
hereof, each Swingline Lender agrees to make a portion of the credit otherwise
available to the Borrower under the Revolving Commitments from time to time
during the Revolving Commitment Period by making swing line loans ("Swingline
Loans") in Dollars to the Borrower; provided that (i) the aggregate principal
amount of Swingline Loans of such Swingline Lender outstanding at any time shall
not exceed the Swingline Commitment of such Swingline Lender then in effect
(notwithstanding that the Swingline
24
Loans of such Swingline Lender outstanding at any time, when aggregated with
such Swingline Lender's other outstanding Revolving Loans, may exceed the
Swingline Commitment of such Swingline Lender then in effect), (ii) the Borrower
shall not request any Swingline Loan if, after giving effect to the making of
such Swingline Loan, the aggregate amount of the Available Revolving Commitments
would be less than zero and (iii) the Borrower shall not request any Swingline
Loan if, after giving effect to the making of such Swingline Loan, the Aggregate
Extensions of Credit would exceed the Borrowing Base. During the Revolving
Commitment Period, the Borrower may use the Swingline Commitments by borrowing,
repaying and reborrowing, all in accordance with the terms and conditions
hereof. Swingline Loans shall be ABR Loans only.
(b) The Borrower shall repay to each Swingline Lender the then
unpaid principal amount of each Swingline Loan no later than the earlier
of the Revolving Termination Date and the first date after such Swingline
Loan is made that is the 15th or last day of a calendar month and is at
least five Business Days after such Swingline Loan is made.
2.7 Procedure for Swingline Borrowing; Refunding of Swingline Loans.
(a) Whenever the Borrower desires that any Swingline Lender make Swingline Loans
it shall give such Swingline Lender irrevocable telephonic notice confirmed
promptly in writing (which telephonic notice must be received by such Swingline
Lender not later than 1:00 P.M., New York City time, on the proposed Borrowing
Date), (A) specifying (i) the amount to be borrowed, (ii) the requested
Borrowing Date (which shall be a Business Day during the Revolving Commitment
Period) and (iii) (1) the then applicable Excepted Secured Debt Amount and (2)
the Utilized Secured Debt Amount, both before and after giving effect to the
requested Swingline Loans and (B) certifying that the Aggregate Extensions of
Credit, after giving effect to the requested Swingline Loans, do not exceed the
Borrowing Base reflected on the most recent Borrowing Base Certificate delivered
to the Administrative Agent pursuant to Section 6.2(e). Each borrowing under the
Swingline Commitment shall be in an amount equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. Not later than 3:00 P.M., New York
City time, on the Borrowing Date specified in a notice in respect of Swingline
Loans, the applicable Swingline Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately available
funds equal to the amount of the Swingline Loan to be made by such Swingline
Lender. The Administrative Agent shall make the proceeds of such Swingline Loan
available to the Borrower on such Borrowing Date by depositing such proceeds in
the account of the Borrower with the Administrative Agent on such Borrowing Date
in immediately available funds.
(b) Each Swingline Lender, at any time and from time to time in its
sole and absolute discretion may, on behalf of the Borrower (which hereby
irrevocably directs the Swingline Lender to act on its behalf) (but
without any deemed representation or warranty on the part of the
Borrower), on one Business Day's notice given by the Swingline Lender no
later than 12:00 Noon, New York City time, request each Revolving Lender
to make, and each Revolving Lender hereby agrees to make, a Revolving
Loan, in an amount equal to such Revolving Lender's Revolving Percentage
of the aggregate amount of the Swingline Loans made by such Swingline
Lender (the "Refunded Swingline Loans") outstanding on the date of such
notice, to repay such Swingline Lender; provided, that unless any
Swingline Lender otherwise agrees in its sole discretion, any Swingline
Loan outstanding for five Business Days shall be automatically so refunded
on such fifth Business Day. Each Revolving Lender shall make the amount of
such Revolving Loan available to the Administrative Agent at the Funding
Office in immediately available funds, not later than 10:00 A.M., New York
City time, one Business Day after the date of such notice. The proceeds of
such Revolving Loans shall be immediately made available by the
Administrative Agent to the applicable Swingline Lender for application by
such Swingline Lender to the repayment of its Refunded Swingline Loans.
Following the date on which the principal amount of any Refunded Swingline
Loan would otherwise be due and payable, the Borrower irrevocably
authorizes each
25
Swingline Lender to charge the Borrower's accounts with the Administrative Agent
(up to the amount available in each such account) in order to immediately pay
the amount of such Refunded Swingline Loans to the extent amounts received from
the Revolving Lenders are not sufficient to repay in full such Refunded
Swingline Loans.
(c) If prior to the time a Revolving Loan would have otherwise been
made pursuant to Section 2.7(b), one of the events described in Section
8(f) shall have occurred and be continuing with respect to the Borrower or
if for any other reason, as determined by any Swingline Lender in its sole
discretion, Revolving Loans may not be made as contemplated by Section
2.7(b), each Revolving Lender shall, on the date such Revolving Loan was
to have been made pursuant to the notice referred to in Section 2.7(b),
purchase for cash an undivided participating interest in the then
outstanding Swingline Loans by paying to the applicable Swingline Lender
an amount (the "Swingline Participation Amount") equal to (i) such
Revolving Lender's Revolving Percentage times (ii) the sum of the
aggregate principal amount of Swingline Loans then outstanding that were
to have been repaid with such Revolving Loans.
(d) Whenever, at any time after any Swingline Lender has received
from any Revolving Lender such Lender's Swingline Participation Amount,
such Swingline Lender receives any payment on account of the Swingline
Loans, such Swingline Lender will distribute to such Lender its Swingline
Participation Amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded and, in the case of
principal and interest payments, to reflect such Lender's pro rata portion
of such payment if such payment is not sufficient to pay the principal of
and interest on all Swingline Loans of such Swingline Lender then due);
provided, however, that in the event that such payment received
by such Swingline Lender is required to be returned, such Revolving Lender
will return to such Swingline Lender any portion thereof previously
distributed to it by such Swingline Lender.
(e) Each Revolving Lender's obligation to make the Loans referred to
in Section 2.7(b) and to purchase participating interests pursuant to
Section 2.7(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including (i) any setoff, counterclaim,
recoupment, defense or other right that such Revolving Lender or the
Borrower may have against such Swingline Lender, the Borrower or any other
Person for any reason whatsoever, (ii) the occurrence or continuance of a
Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5, (iii) any adverse change in the
condition (financial or otherwise) of the Borrower, (iv) any breach of
this Agreement or any other Loan Document by the Borrower, any other Loan
Party or any other Revolving Lender or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing.
2.8 Commitment Fees, etc. (a) The Borrower agrees to pay to the
Administrative Agent (i) for the ratable account of each Lender party to the
Existing Credit Agreement, a facility fee for the period from and including
April 1, 2005 to the Closing Date, computed at the rate set forth in the
Existing Credit Agreement on the aggregate amount of the Commitments and (ii)
for the account of each Revolving Lender, a commitment fee for the period from
and including the date hereof to the last day of the Revolving Commitment
Period, computed at the Commitment Fee Rate on the average daily amount of the
Available Revolving Commitment of such Lender during the period for which
payment is made, in each case payable quarterly in arrears on each Fee Payment
Date, commencing on the first such date to occur after the date hereof.
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(b) The Borrower agrees to pay to the Administrative Agent the fees
in the amounts and on the dates as set forth in any fee agreements with
the Administrative Agent and to perform any other obligations contained
therein.
2.9 Termination or Reduction of Revolving Commitments. The Borrower
shall have the right, upon not less than three Business Days' notice to the
Administrative Agent, to terminate the Revolving Commitments or, from time to
time, to reduce the amount of the Revolving Commitments; provided that no such
termination or reduction of Revolving Commitments shall be permitted if, after
giving effect thereto and to any prepayments of the Revolving Loans and
Swingline Loans made on the effective date thereof, the Total Revolving
Extensions of Credit would exceed the Total Revolving Commitments. Any such
reduction shall be in an amount equal to $10,000,000, or a whole multiple of
$1,000,000 in excess thereof, and shall reduce permanently the Revolving
Commitments then in effect.
2.10 Optional Prepayments. (a) The Borrower may at any time and from
time to time prepay the Loans, in whole or in part, without premium or penalty,
upon irrevocable notice delivered to the Administrative Agent no later than
12:00 Noon, New York City time, three Business Days prior thereto, in the case
of Eurodollar Loans, and no later than 12:00 Noon, New York City time, one
Business Day prior thereto, in the case of ABR Loans, which notice shall specify
the date and amount of prepayment and whether the prepayment is of Eurodollar
Loans or ABR Loans; provided, that if a Eurodollar Loan is prepaid on any day
other than the last day of the Interest Period applicable thereto, the Borrower
shall also pay any amounts owing pursuant to Section 2.20. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with (except in the
case of Revolving Loans that are ABR Loans and Swingline Loans) accrued interest
to such date on the amount prepaid. Partial prepayments of Term Loans and
Revolving Loans shall be in an aggregate principal amount of $10,000,000 and
whole multiples of $1,000,000 in excess thereof. Partial prepayments of
Swingline Loans shall be in an aggregate principal amount of $5,000,000 or a
whole multiple of $1,000,000 in excess thereof.
(b) Notwithstanding the foregoing, no optional prepayments of the
Term Loans shall be permitted prior to the first anniversary of the
Closing Date. Each optional prepayment in respect of the Term Loans made
on or after the first anniversary of the Closing Date and on or prior to
the third anniversary of the Closing Date with the proceeds of a
substantially concurrent issuance or incurrence of (i) secured
Indebtedness or (ii) new loans under this Agreement, as amended, amended
and restated, supplemented, replaced, waived or otherwise modified from
time to time having an Applicable Margin (or similar interest rate spread)
that is or could be (upon the satisfaction of certain conditions) less
than the Applicable Margin applicable to the Term Loans as of the Closing
Date, shall be accompanied by a prepayment premium equal to (A) if such
prepayment is made on or after the first anniversary of the Closing Date
and prior to the second anniversary of the Closing Date, 2% of the
principal amount of such prepayment and (B) if such prepayment is made on
or after the second anniversary of the Closing Date and on or prior to the
third anniversary of the Closing Date, 1% of the principal amount of such
prepayment.
2.11 Mandatory Prepayments. (a) If any Indebtedness shall be
incurred by any Group Member (excluding any Indebtedness incurred in accordance
with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof
shall be applied on the date of such incurrence toward the prepayment of the
Term Loans as set forth in Section 2.11(e).
(b) If on any date any Group Member shall receive Net Cash Proceeds
from any Asset Sale or Recovery Event then, unless a Reinvestment Notice
shall be delivered in respect thereof, such Net Cash Proceeds shall be
applied promptly, and in any event, within 10 days after such date
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toward the prepayment of the Term Loans as set forth in Section 2.11(e);
provided, that, notwithstanding the foregoing, on each Reinvestment
Prepayment Date, an amount equal to the Reinvestment Prepayment Amount
with respect to the relevant Reinvestment Event shall be applied toward
the prepayment of the Term Loans as set forth in Section 2.11(e); provided
further that no JV Subsidiary shall be required to deliver a Reinvestment
Notice upon receipt of any such Net Cash Proceeds so long as a
Reinvestment Notice is delivered at the time such Net Cash Proceeds are
received by any Group Member other than a JV Subsidiary.
(c) If, for any fiscal year of the Borrower commencing with the
fiscal year ending December 31, 2006, there shall be Excess Cash Flow
after deducting the aggregate amount of all prepayments of Revolving Loans
and Swingline Loans during such fiscal year to the extent accompanied by a
permanent optional reduction of the Revolving Commitments and all optional
prepayments of the Term Loans made during such fiscal year, the Borrower
shall, on the relevant Excess Cash Flow Application Date, apply 50% of
such Excess Cash Flow toward the prepayment of the Term Loans as set forth
in Section 2.11(e). Each such prepayment shall be made on a date (an
"Excess Cash Flow Application Date") no later than five days after the
earlier of (i) the date on which the financial statements of the Borrower
referred to in Section 6.1(a), for the fiscal year with respect to which
such prepayment is made, are required to be delivered to the Lenders and
(ii) the date such financial statements are actually delivered.
(d) Within three Business Days following receipt of any Borrowing
Base Certificate showing that the Aggregate Extensions of Credit exceed
the Borrowing Base, the Borrower shall prepay the Loans as set forth in
Section 2.11(e) in an amount equal to the excess of such Aggregate
Extensions of Credit over the Borrowing Base.
(e) Amounts to be applied in connection with prepayments made
pursuant to paragraphs (a), (b) and (c) of this Section 2.11 shall be
applied to the prepayment of the Term Loans in accordance with Section
2.17(b). Amounts to be applied in connection with prepayments made
pursuant to paragraph (d) of this Section 2.11 shall be applied, first, to
the prepayment of the Revolving Loans (without a corresponding permanent
reduction in the Revolving Commitments) in accordance with Section 2.17(c)
and, following prepayment of all outstanding Revolving Loans, the
replacement and/or cash collateralization of outstanding Letters of Credit
on terms and conditions satisfactory to the Administrative Agent and,
second, to the prepayment of the Term Loans in accordance with Section
2.17(b). The application of any prepayment pursuant to Section 2.11 shall
be made, first, to ABR Loans and, second, to Eurodollar Loans. Each
prepayment of the Loans under Section 2.11 (except in the case of
Revolving Loans that are ABR Loans and Swingline Loans) shall be
accompanied by accrued interest to the date of such prepayment on the
amount prepaid.
(f) Notwithstanding anything to the contrary in Section 2.11(e) or
2.17, with respect to the amount of any mandatory prepayment described in
Section 2.11 that is allocated to Term Loans (such amount, the "Prepayment
Amount"), at any time prior to the first anniversary of the Closing Date,
the Borrower will, in lieu of applying such amount to the prepayment of
Term Loans as provided in paragraph (e) above, on the date specified in
Section 2.11 for such prepayment, give the Administrative Agent telephonic
notice (promptly confirmed in writing) requesting that the Administrative
Agent prepare and provide to each Lender a notice (each, a "Prepayment
Option Notice") as described below. As promptly as practicable after
receiving such notice from the Borrower, the Administrative Agent will
send to each Term Lender a Prepayment Option Notice, which shall be in the
form of Exhibit G, and shall include an offer by the Borrower to prepay on
the date (each a "Mandatory Prepayment Date") that is 10 Business Days
after the date of the Prepayment Option Notice, the relevant Term Loans of
such Lender by an amount equal to the
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portion of the Prepayment Amount indicated in such Lender's Prepayment
Option Notice as being applicable to such Lender's Term Loans. On the
Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Term
Lenders the aggregate amount necessary to prepay that portion of the
outstanding relevant Term Loans in respect of which such Lenders have
accepted prepayment as described above and (ii) the Borrower shall be
entitled to retain the remaining portion of the Prepayment Amount not
accepted by the relevant Lenders.
(g) Each mandatory prepayment in respect of the Term Loans made
pursuant to paragraph (a) above with Net Cash Proceeds of secured
Indebtedness on or after the first anniversary of the Closing Date and on
or prior to the third anniversary of the Closing Date shall be accompanied
by a prepayment premium equal to (i) if such prepayment is made on or
after the first anniversary of the Closing Date and prior to the second
anniversary of the Closing Date, 2% of the principal amount of such
prepayment and (ii) if such prepayment is made on or after the second
anniversary of the Closing Date and on or prior to the third anniversary
of the Closing Date, 1% of the principal amount of such prepayment.
2.12 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent prior irrevocable notice of such election no later than
12:00 Noon, New York City time, on the Business Day preceding the proposed
conversion date, provided that any such conversion of Eurodollar Loans may only
be made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans by giving
the Administrative Agent prior irrevocable notice of such election no later than
12:00 Noon, New York City time, on the third Business Day preceding the proposed
conversion date (which notice shall specify the length of the initial Interest
Period therefor), provided that no ABR Loan under a particular Facility may be
converted into a Eurodollar Loan when any Event of Default has occurred and is
continuing and the Majority Facility Lenders in respect of such Facility have
determined in their sole discretion not to permit such conversions. Upon receipt
of any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower
giving irrevocable notice to the Administrative Agent, in accordance with
the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to
such Loans, provided that no Eurodollar Loan under a particular Facility
may be continued as such when any Event of Default has occurred and is
continuing and the Majority Facility Lenders in respect of such Facility
have determined in their sole discretion not to permit such continuations,
and provided, further, that if the Borrower shall fail to give any
required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans
shall be automatically converted to ABR Loans on the last day of such then
expiring Interest Period. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.
2.13 Limitations on Eurodollar Tranches. Notwithstanding anything to
the contrary in this Agreement, all borrowings, conversions and continuations of
Eurodollar Loans and all selections of Interest Periods shall be in such amounts
and be made pursuant to such elections so that, (a) after giving effect thereto,
the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to $10,000,000 or a whole multiple of
$1,000,000 in excess thereof and (b) no more than thirty Eurodollar Tranches
shall be outstanding at any one time.
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2.14 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to (x) in the case of the Loans, the
rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section plus 2% or (y) in the case of Reimbursement
Obligations, the rate applicable to ABR Loans under the Revolving Facility
plus 2%, and (ii) if all or a portion of any interest payable on any Loan
or Reimbursement Obligation or any commitment fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a
rate per annum equal to the rate then applicable to ABR Loans under the
relevant Facility plus 2% (or, in the case of any such other amounts that
do not relate to a particular Facility, the rate then applicable to ABR
Loans under the Revolving Facility plus 2%), in each case, with respect to
clauses (i) and (ii) above, from the date of such non-payment until such
amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
Section shall be payable from time to time on demand.
2.15 Computation of Interest and Fees. (a) Interest and fees payable
pursuant hereto shall be calculated on the basis of a 360-day year for the
actual days elapsed, except that, with respect to ABR Loans the rate of interest
on which is calculated on the basis of the Prime Rate, the interest thereon
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of each determination
of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Lenders of the effective date and the amount of each
such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error.
The Administrative Agent shall, at the request of the Borrower, deliver to
the Borrower a statement showing the quotations used by the Administrative
Agent in determining any interest rate pursuant to Section 2.14(a).
2.16 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
30
(b) the Administrative Agent shall have received notice from the
Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest Period
will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as ABR Loans,
(y) any Loans under the relevant Facility that were to have been converted on
the first day of such Interest Period to Eurodollar Loans shall be continued as
ABR Loans and (z) any outstanding Eurodollar Loans under the relevant Facility
shall be converted, on the last day of the then-current Interest Period, to ABR
Loans. Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans under the relevant Facility shall be made or continued
as such, nor shall the Borrower have the right to convert Loans under the
relevant Facility to Eurodollar Loans.
2.17 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee and any reduction of the Commitments of the Lenders shall be
made pro rata according to the respective Term Percentages or Revolving
Percentages, as the case may be, of the relevant Lenders.
(b) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Term Loans shall be made pro
rata according to the respective outstanding principal amounts of the Term
Loans then held by the Term Lenders (except as otherwise provided in
Section 2.11(f)). The amount of each principal prepayment of the Term
Loans shall be applied to reduce (i) the scheduled installments thereof
occurring within the next 12 months in direct order of maturity and (ii)
the then remaining installments of the Term Loans, as the case may be, pro
rata based upon the respective then remaining principal amounts thereof.
Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Loans shall be made
pro rata according to the respective outstanding principal amounts of the
Revolving Loans then held by the Revolving Lenders.
(d) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise,
shall be made without setoff or counterclaim and shall be made prior to
2:00 P.M., New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Funding
Office, in Dollars and in immediately available funds. The Administrative
Agent shall distribute such payments to the Lenders promptly upon receipt
in like funds as received. If any payment hereunder (other than payments
on the Eurodollar Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding
Business Day. If any payment on a Eurodollar Loan becomes due and payable
on a day other than a Business Day, the maturity thereof shall be extended
to the next succeeding Business Day unless the result of such extension
would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business
Day. In the case of any extension of any payment of principal pursuant to
the preceding two sentences, interest thereon shall be payable at the then
applicable rate during such extension.
(e) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make
the amount that would constitute its share of
31
such borrowing available to the Administrative Agent, the Administrative
Agent may assume that such Lender is making such amount available to the
Administrative Agent, and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. If
such amount is not made available to the Administrative Agent by the
required time on the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon, at a
rate equal to the greater of (i) the Federal Funds Effective Rate and (ii)
a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation, for the period until such Lender
makes such amount immediately available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in
the absence of manifest error. If such Lender's share of such borrowing is
not made available to the Administrative Agent by such Lender within three
Business Days after such Borrowing Date, the Administrative Agent shall
also be entitled to recover such amount with interest thereon at the rate
per annum applicable to ABR Loans under the relevant Facility, on demand,
from the Borrower.
(f) Unless the Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment due to be made by
the Borrower hereunder that the Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that the
Borrower is making such payment, and the Administrative Agent may, but
shall not be required to, in reliance upon such assumption, make available
to the Lenders their respective pro rata shares of a corresponding amount.
If such payment is not made to the Administrative Agent by the Borrower
within three Business Days after such due date, the Administrative Agent
shall be entitled to recover, on demand, from each Lender to which any
amount which was made available pursuant to the preceding sentence, such
amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to
limit the rights of the Administrative Agent or any Lender against the
Borrower.
2.18 Requirements of Law. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any Application
or any Eurodollar Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded
Taxes covered by Section 2.19 and changes in the rate of tax on the
overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurodollar Rate; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
within 10 Business Days following its demand, any additional amounts necessary
to compensate such Lender for such increased
32
cost or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this paragraph, it shall promptly notify the
Borrower (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from
any Governmental Authority made subsequent to the date hereof shall have
the effect of reducing the rate of return on such Lender's or such
corporation's capital as a consequence of its obligations hereunder or
under or in respect of any Letter of Credit to a level below that which
such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, within 10
Business Days after submission by such Lender to the Borrower (with a copy
to the Administrative Agent) of a written request therefor, the Borrower
shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such corporation for such reduction.
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be prima facie evidence of the obligations of
the Borrower hereunder; provided, however, the failure of the Borrower to
pay any amount owing to any Lender pursuant to this section shall not be
deemed to constitute a Default or an Event of Default hereunder to the
extent that the Borrower is contesting in good faith its obligation to pay
such amount by ongoing discussion diligently pursued with such Lender or
by appropriate proceedings. Notwithstanding anything to the contrary in
this Section, the Borrower shall not be required to compensate a Lender
pursuant to this Section for any amounts incurred more than nine months
prior to the date that such Lender notifies the Borrower of such Lender's
intention to claim compensation therefor; provided that, if the
circumstances giving rise to such claim have a retroactive effect, then
such nine-month period shall be extended to include the period of such
retroactive effect. The obligations of the Borrower pursuant to this
Section shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
2.19 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent or any Lender as a result
of a present or former connection between the Administrative Agent or such
Lender and the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that the Borrower shall not be required to increase any such amounts
payable to any Lender with respect to any Non-Excluded Taxes (i) that are
attributable to such Lender's failure to comply with the requirements of
paragraph (d) or (e) of this Section or (ii) that are United States
33
withholding taxes imposed on amounts payable to such Lender at the time such
Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such Non-Excluded Taxes
pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by
the Borrower, as promptly as possible thereafter the Borrower shall send
to the Administrative Agent for its own account or for the account of the
relevant Lender, as the case may be, a certified copy of an original
official receipt received by the Borrower showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes or Other Taxes when due to
the appropriate taxing authority or fails to remit to the Administrative
Agent the required receipts or other required documentary evidence, the
Borrower shall indemnify the Administrative Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. Each
Lender represents as of the Closing Date that, to the best of its
knowledge without having conducted any investigation, except for any Other
Taxes that may be imposed under the federal, state or local laws of the
United States (or any political subdivision thereof), it is not aware of
the imposition of any Other Taxes with respect to this Agreement or any
other Loan Document.
(d) Each Lender (or Transferee) that is not a "U.S. Person" as
defined in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall
deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have
been purchased) two copies of either U.S. Internal Revenue Service Form
W-8BEN, Form W-8ECI or Form W-8EXP, or, in the case of a Non-U.S. Lender
claiming exemption from U.S. federal withholding tax under Section 871(h)
or 881(c) of the Code with respect to payments of "portfolio interest", a
true and accurate statement substantially in the form of Exhibit H and a
Form W-8BEN, or any subsequent versions thereof or successors thereto,
that the Borrower has no knowledge or reason to know is untrue, properly
completed and duly executed by such Non-U.S. Lender claiming complete
exemption from, or a reduced rate of, U.S. federal withholding tax on all
payments by the Borrower under this Agreement and the other Loan
Documents. Such forms shall be delivered by each Non-U.S. Lender on or
before the date it becomes a party to this Agreement (or, in the case of
any Participant, on or before the date such Participant purchases the
related participation). In addition, each Non-U.S. Lender shall deliver
such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall
promptly notify the Borrower at any time it determines that it is no
longer in a position to provide any previously delivered certificate to
the Borrower (or any other form of certification adopted by the U.S.
taxing authorities for such purpose). Notwithstanding any other provision
of this paragraph, a Non-U.S. Lender shall not be required to deliver any
form pursuant to this paragraph that such Non-U.S. Lender is not legally
able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law
as will permit such payments to be made without withholding or at a
reduced rate, provided that such Lender is legally entitled to complete,
execute and deliver such
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documentation and in such Lender's judgment such completion, execution or
submission would not materially prejudice the legal position of such
Lender.
(f) If the Administrative Agent or any Lender determines, in its
sole discretion, that it has received a refund of any Non-Excluded Taxes
or Other Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this
Section 2.19, 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 2.19 with respect to the Non-Excluded Taxes or
Other Taxes giving rise to such refund), net of all out-of-pocket expenses
of the Administrative Agent or such Lender and without interest (other
than any interest paid by the relevant Governmental Authority with respect
to such refund); provided, that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees -------- to repay the amount
paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative
Agent or such Lender in the event the Administrative Agent or such Lender
is required to repay such refund to such Governmental Authority. This
paragraph shall not be construed to require the Administrative Agent or
any Lender to make available its tax returns (or any other information
relating to its taxes which it deems confidential) to the Borrower or any
other Person.
(g) The agreements in this Section shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.20 Indemnity. The Borrower agrees to indemnify each Lender for,
and to hold each Lender harmless from, any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment of or conversion from Eurodollar Loans after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurodollar Loans on a day that is not the last day of
an Interest Period with respect thereto (including, without limitation, pursuant
to a purchase of such Loans in accordance with Section 2.22). Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest that would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) that
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. A certificate as to any amounts payable pursuant to this Section
submitted to the Borrower by any Lender shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
2.21 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.18 or 2.19(a)
with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that cause such Lender and its lending office(s) to
suffer no economic, legal or regulatory disadvantage, and provided, further,
that nothing in this Section shall affect or postpone any of the obligations of
the Borrower or the rights of any Lender pursuant to Section 2.18 or 2.19(a).
35
2.22 Replacement of Lenders. The Borrower shall be permitted to
replace any Lender that (a) requests reimbursement for amounts owing pursuant to
Section 2.18 or 2.19(a), (b) defaults in its obligation to make Loans hereunder
or (c) is a Non-Consenting Lender, with a replacement financial institution;
provided that (i) such replacement does not conflict with any Requirement of
Law, (ii) no Event of Default shall have occurred and be continuing at the time
of such replacement, (iii) prior to any such replacement, such Lender shall have
taken no action under Section 2.21 so as to eliminate the continued need for
payment of amounts owing pursuant to Section 2.18 or 2.19(a), (iv) the
replacement financial institution shall purchase, at par, all Loans and other
amounts owing to such replaced Lender on or prior to the date of replacement,
(v) the Borrower shall be liable to such replaced Lender under Section 2.20 if
any Eurodollar Loan owing to such replaced Lender shall be purchased other than
on the last day of the Interest Period relating thereto, (vi) the replacement
financial institution, if not already a Lender, an Affiliate of a Lender or an
Approved Fund, shall be reasonably satisfactory to the Administrative Agent,
and, if the Lender being replaced is a Revolving Lender, shall be reasonably
satisfactory to the Issuing Lenders and the Swingline Lenders, (vii) the
replaced Lender shall be obligated to make such replacement in accordance with
the provisions of Section 10.7 (provided that the Borrower shall be obligated to
pay the registration and processing fee referred to therein), (viii) until such
time as such replacement shall be consummated, the Borrower shall pay all
additional amounts (if any) required pursuant to Section 2.18 or 2.19(a), as the
case may be, and (ix) any such replacement shall not be deemed to be a waiver of
any rights that the Borrower, the Administrative Agent or any other Lender shall
have against the replaced Lender.
2.23 Foreign Revolving Facility.
(a) Following the Closing Date, the Borrower may request the
Revolving Lenders to re-designate up to $500,000,000 of the Revolving
Commitments as commitments under a separate revolving facility or facilities
(each, a "Foreign Revolving Facility") available in Euro or Pounds Sterling to
one or more of the Borrower's Foreign Subsidiaries (each such Foreign
Subsidiary, a "Foreign Borrower"). The amount of any Foreign Revolving Facility
shall reduce the Revolving Facility on a dollar-for-dollar basis and on a pro
rata basis among the Revolving Lenders. Lenders which provided Revolving
Commitments in excess of their commitments under the Existing Credit Agreement
shall have the right to re-designate all or a portion of such excess as a
commitment under any Foreign Revolving Facility before other Lenders may
re-designate their Revolving Commitments as commitments under any Foreign
Revolving Facility and before any other bank, financial institution or other
entity that is not a Lender may commit to any Foreign Revolving Facility. The
election by any Lender to re-designate its Revolving Commitment under any
Foreign Revolving Facility shall not obligate any other Lender to agree to such
requested re-designation.
(b) The obligations of each Foreign Borrower under any Foreign
Revolving Facility (i) shall be guaranteed by the subsidiaries of such
Foreign Borrower and secured by substantially all of the tangible and
intangible assets of such Foreign Borrower and its subsidiaries (with
exceptions to be agreed), in each case as shall be required by, and in a
manner reasonably acceptable to, the Administrative Agent, those Lenders
which have agreed to re-designate all or a portion of their Revolving
Commitments as commitments under such Foreign Revolving Facility and any
other bank, financial institution or other entity that is not a Lender
that commits to such Foreign Revolving Facility (collectively, the
"Foreign Facility Lenders") and (ii) shall be guaranteed on an unsecured
basis by the Borrower and the Subsidiary Guarantors.
(c) Each Foreign Revolving Facility will be implemented upon receipt
of the consent of the Foreign Facility Lenders (which consent, in the case
of any bank, financial institution or other entity that is not a Lender,
shall be accompanied by an administrative questionnaire to be delivered to
the Administrative Agent) and the Administrative Agent and upon execution
and delivery of all
36
documentation, including any amendments to this Agreement, necessary to
evidence such Foreign Revolving Facility and the security interests and
guarantees therefor, together with customary corporate documents and legal
opinions in connection therewith, all such documentation to be in form and
substance reasonably satisfactory to the Administrative Agent and the
applicable Foreign Facility Lenders.
2.24 Certain Provisions relating to Revolving Facility
(a) Each Revolving Loan, each Swingline Loan and each issuance of a
Letter of Credit shall be comprised of an A Revolving Obligation and a B
Revolving Obligation. The amount of A Revolving Obligations and B
Revolving Obligations comprising the Revolving Extensions of Credit of any
Revolving Lender may fluctuate from time to time, but the sum of A
Revolving Obligations and B Revolving Obligations of such Lender shall at
all times equal the aggregate amount of such Lender's Revolving Extensions
of Credit.
(b) For purposes hereof:
(i) as to any Revolving Lender, the portion of any Revolving
Extension of Credit of such Lender constituting an "A Revolving
Obligation" shall be that portion of such Revolving Extension of Credit
equal to (A) for so long as the 1999 Indenture (including any
refinancing or extension thereof to the extent permitted by Section
7.2) shall remain in effect, the lesser of (1) such Revolving Lender's
Revolving Percentage of the excess, if any, of the amount equal to 15%
of Consolidated Net Tangible Assets (as defined in the 1999 Indenture)
as shown on the audited consolidated financial statements of the
Borrower for the most recently completed fiscal year (as determined in
accordance with the 1999 Indenture), over the Utilized Secured Debt
Amount on such date (without giving effect to such Revolving Extension
of Credit) and (2) the principal amount or face amount, as applicable,
of such Revolving Extension of Credit or (B) otherwise, the principal
amount or face amount, as applicable, of such Revolving Extension of
Credit; and
(ii) as to any Revolving Lender, the portion of any Revolving
Extension of Credit of such Lender constituting a "B Revolving
Obligation" shall be that portion, if any, of such Revolving Extension
of Credit equal to the difference between the principal amount or face
amount, as applicable, of such Revolving Extension of Credit and the
portion of such Revolving Extension of Credit constituting the A
Revolving Obligation portion thereof, determined on the date such
Revolving Extension of Credit is made or issued, as applicable.
(c) Any Revolving Extensions of Credit made by any Revolving Lender
shall be comprised of A Revolving Obligations to the maximum extent
possible.
(d) At any time when Revolving Extensions of Credit are comprised of
both A Revolving Obligations and B Revolving Obligations, any prepayment
or cash collateralization of any Revolving Extension of Credit of any
Revolving Lender shall be applied first to reduce the portion thereof
constituting such Lender's B Revolving Obligations.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions hereof,
each Issuing Lender, in reliance on the agreements of the other Revolving
Lenders set forth in Section 3.4(a), agrees to issue letters of credit ("Letters
of Credit") for the account of the Borrower on any Business Day during the
Revolving Commitment Period in such form as may be approved from time to time by
such Issuing
37
Lender; provided that no Issuing Lender shall have an obligation to issue any
Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations owed to such Issuing Lender would exceed the L/C Commitment of such
Issuing Lender or (ii) the aggregate amount of the Available Revolving
Commitments would be less than zero; provided, that, the Borrower shall not
request, and no Issuing Lender shall issue, amend or renew any Letter of Credit
if, after giving effect to the issuance, amendment or renewal of such Letter of
Credit, the Aggregate Extensions of Credit would exceed the Borrowing Base. Each
Letter of Credit shall (i) be denominated in Dollars and (ii) expire no later
than the earlier of (x) the first anniversary of its date of issuance and (y)
the date that is five Business Days prior to the Revolving Termination 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 (y) above).
(b) No Issuing Lender shall at any time be obligated to issue any
Letter of Credit if such issuance would conflict with, or cause such
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Borrower may
from time to time request that any Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender at its address for notices specified herein an
Application therefor (which shall (a) certify that the Aggregate Extensions of
Credit, after giving effect to the issuance of the requested Letter of Credit,
do not exceed the Borrowing Base reflected on the most recent Borrowing Base
Certificate delivered to the Administrative Agent under Section 6.2(e) and (b)
specify (i) the then applicable Excepted Secured Debt Amount and (ii) the
Utilized Secured Debt Amount, both before and after giving effect to the
issuance of the requested Letter of Credit), completed to the satisfaction of
such Issuing Lender, and such other certificates, documents and other papers and
information as such Issuing Lender may request. Upon receipt of any Application,
the applicable Issuing Lender will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall
such Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed to by such Issuing Lender and the Borrower. The
applicable Issuing Lender shall furnish a copy of such Letter of Credit to the
Borrower promptly following the issuance thereof. The Issuing Lender shall
promptly furnish to the Administrative Agent, which shall in turn promptly
furnish to the Lenders, notice of the issuance of each Letter of Credit
(including the amount thereof).
3.3 Fees and Other Charges. (a) The Borrower will pay a fee on all
outstanding Letters of Credit at a per annum rate equal to the Applicable Margin
then in effect with respect to Eurodollar Loans under the Revolving Facility,
shared ratably among the Revolving Lenders and payable quarterly in arrears on
each Fee Payment Date after the issuance date. In addition, the Borrower shall
pay to the applicable Issuing Lender for its own account a fronting fee of 0.25%
per annum on the undrawn and unexpired amount of each Letter of Credit issued by
such Issuing Lender, payable quarterly in arrears on each Fee Payment Date after
the issuance date.
(b) In addition to the foregoing fees, the Borrower shall pay or
reimburse each Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by such Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering
any Letter of Credit.
3.4 L/C Participations. (a) Each Issuing Lender irrevocably agrees
to grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lenders to issue Letters of Credit, each
38
L/C Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from each Issuing Lender, on the terms and conditions set forth below,
for such L/C Participant's own account and risk an undivided interest equal to
such L/C Participant's Revolving Percentage in each Issuing Lender's obligations
and rights under and in respect of each Letter of Credit and the amount of each
draft paid by such Issuing Lender thereunder. Each L/C Participant agrees with
each Issuing Lender that, if a draft is paid under any Letter of Credit for
which such Issuing Lender is not reimbursed in full by the Borrower in
accordance with the terms of this Agreement, such L/C Participant shall pay to
such Issuing Lender, within one Business Day after written notice has been
delivered to such L/C Participant, at such Issuing Lender's address for notices
specified herein an amount equal to such L/C Participant's Revolving Percentage
of the amount of such draft, or any part thereof, that is not so reimbursed.
Each L/C Participant's obligation to pay such amount shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
setoff, counterclaim, recoupment, defense or other right that such L/C
Participant may have against such Issuing Lender, the Borrower or any other
Person for any reason whatsoever, (ii) the occurrence or continuance of a
Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5, (iii) any adverse change in the condition
(financial or otherwise) of the Borrower, (iv) any breach of this Agreement or
any other Loan Document by the Borrower, any other Loan Party or any other L/C
Participant or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(b) If any amount required to be paid by any L/C Participant to any
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Lender under any Letter of
Credit is paid to such Issuing Lender, such L/C Participant shall pay to
the Issuing Lender on demand an amount equal to the product of (i) such
amount, times (ii) the daily average Federal Funds Effective Rate during
the period from and including the date such notice is delivered to the
date on which such payment is immediately available to the Issuing Lender,
times (iii) a fraction the numerator of which is the number of days that
elapse during such period and the denominator of which is 360. A
certificate of the applicable Issuing Lender submitted to any L/C
Participant with respect to any amounts owing under this Section shall be
conclusive in the absence of manifest error.
(c) Whenever, at any time after any Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with Section 3.4(a), such
Issuing Lender receives any payment related to such Letter of Credit
(whether directly from the Borrower or otherwise, including proceeds of
collateral applied thereto by the Issuing Lender), or any payment of
interest on account thereof, such Issuing Lender will distribute to such
L/C Participant its pro rata share thereof; provided, however, that in the
event that any such payment received by such Issuing Lender shall be
required to be returned by such Issuing Lender, such L/C Participant shall
return to such Issuing Lender the portion thereof previously distributed
by such Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. If any draft is paid
under any Letter of Credit, the Borrower shall reimburse the applicable Issuing
Lender for the amount of (a) the draft so paid and (b) any taxes, fees, charges
or other costs or expenses incurred by such Issuing Lender in connection with
such payment, not later than 12:00 Noon, New York City time, on the Business Day
immediately following the day that the Borrower receives notice of such draft.
Each such payment shall be made to such Issuing Lender at its address for
notices referred to herein in Dollars and in immediately available funds.
Interest shall be payable on any such amounts from the date on which the
relevant draft is paid until payment in full at the rate set forth in (x) until
the Business Day next succeeding the date of the relevant notice, Section
2.14(b) and (y) thereafter, Section 2.14(c).
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3.6 Obligations Absolute. The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that the
Borrower may have or has had against any Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with each Issuing
Lender that no Issuing Lender shall be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. No Issuing Lender
shall be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Issuing Lender.
The Borrower agrees that any action taken or omitted by any Issuing Lender under
or in connection with any Letter of Credit or the related drafts or documents,
if done in the absence of gross negligence or willful misconduct, shall be
binding on the Borrower and shall not result in any liability of such Issuing
Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the applicable Issuing Lender shall promptly
notify the Borrower of the date and amount thereof. The responsibility of each
Issuing Lender to the Borrower in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower hereby represents and warrants to the Administrative Agent
and each Lender that:
4.1 Financial Condition. Each of (a) the audited consolidated
balance sheets of the Borrower as at December 31, 2001, December 31, 2002 and
December 31, 2003, and the related consolidated statements of income and of cash
flows for the fiscal years ended on such dates, reported on by and accompanied
by an unqualified report from Deloitte & Touche LLP, (b) the unaudited
consolidated balance sheet of the Borrower as at December 31, 2004, and the
related consolidated statement of income and of cash flows for the fiscal year
ended on such date, and (c) the unaudited consolidated balance sheets of the
Borrower as at September 30, 2004 and March 31, 2005, and the related unaudited
consolidated statements of income and cash flows for the 9-month and 3-month
periods, respectively, ended on such date, are subject to restatement as
disclosed in the Restatement 8-Ks. The restated balance sheets and statements of
income and cash flows will present fairly the consolidated financial condition
of the Borrower as at such dates, and the consolidated results of its operations
and its consolidated cash flows for the respective fiscal years (or other
periods) then ended (subject to normal year end audit adjustments in the case of
interim balance sheets and statements of income and cash flow). All such
restated financial statements, including the related schedules and notes
thereto, shall be prepared in accordance with GAAP applied consistently
throughout the periods involved (except, in the case of the
40
audited financial statements, as approved by the aforementioned firm of
accountants and disclosed therein). Following the restatement, no Group Member
will have any material Guarantee Obligations, contingent liabilities and
liabilities for taxes, or any material long term leases or unusual forward or
long term commitments, including any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, which are
required to be reflected in the Borrower's consolidated financial statements but
are not so reflected in the most recent financial statements referred to in this
paragraph, where the failure to so reflect would cause the consolidated
financial statements of the Borrower to fail to fairly present the consolidated
financial condition of the Borrower as at the dates of the applicable financial
statements (subject to normal year end adjustments in the case of interim
financial statements). During the period from December 31, 2003 to and including
the date hereof there has been no Disposition by any Material Group Member of
its business or property which constitutes a material part of the business or
property of the Borrower and its Subsidiaries, taken as a whole.
4.2 No Change. Since December 31, 2003, there has been no
development or event that has had or is reasonably expected to have a Material
Adverse Effect.
4.3 Existence; Compliance with Law. Each Material Group Member (a)
is duly organized and validly existing under the laws of the jurisdiction of its
organization, (b) has the power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged except where the failure thereof
could not reasonably be expected to have a Material Adverse Effect, (c) is duly
qualified as a foreign corporation or other organization and in good standing
under the laws of the jurisdiction of its organization and each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification, except to the extent that all failures to
be duly qualified and in good standing could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
4.4 Power; Authorization; Enforceable Obligations. Each Loan Party
has the power and authority, and the legal right, to make, deliver and perform
the Loan Documents to which it is a party and, in the case of the Borrower, to
obtain extensions of credit hereunder. Each Loan Party has taken all necessary
organizational action to authorize the execution, delivery and performance of
the Loan Documents to which it is a party and, in the case of the Borrower, to
authorize the extensions of credit on the terms and conditions of this
Agreement. No material consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other Person is
required in connection the extensions of credit hereunder or with the execution,
delivery, performance, validity or enforceability of this Agreement or any of
the Loan Documents, except (i) consents, authorizations, filings and notices
described in Schedule 4.4, which consents, authorizations, filings and notices
have been obtained or made and are in full force and effect and (ii) the filings
referred to in Section 4.19. Each Loan Document has been duly executed and
delivered on behalf of each Loan Party party thereto. This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of each Loan Party party thereto,
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder and the use of the proceeds thereof by each Loan Party (a)
will not violate any Existing Indenture, or result in, or require, the creation
or imposition of any Lien on any of their respective properties or revenues
pursuant to any such Existing Indenture, (b) will not violate any Requirement of
Law or any other Contractual Obligation
41
of any Group Member, except to the extent that all such violations could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect and (c)
will not result in, or require, the creation or imposition of any Lien on any of
their respective properties or revenues pursuant to any Requirement of Law or
any such other Contractual Obligation (other than the Liens created by the
Security Documents).
4.6 Litigation. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the knowledge
of the Borrower, threatened by or against any Group Member or against any of
their respective properties or revenues (a) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or thereby, or (b) that
is reasonably expected to have a Material Adverse Effect.
4.7 No Default. The Borrower does not have knowledge that any Group
Member is in default under or with respect to any of its Contractual Obligations
in any respect that could reasonably be expected to have a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing of which
the Borrower has knowledge.
4.8 Ownership of Property; Liens. Each Material Group Member has
title in fee simple to, or a valid leasehold interest in, all its material real
property (other than immaterial defects in title that do not constitute Liens),
and good title in all material respects to, or a valid leasehold interest in,
all its other material property, and none of such property is subject to any
Lien except as permitted by Section 7.3.
4.9 Intellectual Property. Each Material Group Member owns, or is
licensed to use, all Intellectual Property necessary, in the aggregate, for the
conduct of its business as currently conducted. No claim has been asserted and
is pending by any Person challenging or questioning the use of any Intellectual
Property or the validity or effectiveness of any Intellectual Property, nor does
the Borrower know of any valid basis for any such claim, in each case that could
reasonably be expected to have a Material Adverse Effect. The use of
Intellectual Property by each Group Member does not infringe on the rights of
any Person in any material respect.
4.10 Taxes. Each Group Member has filed or caused to be filed all
Federal and all material state and other tax returns that are required to be
filed and has paid all material taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which appropriate reserves in conformity with applicable accounting
principles have been provided on the books of the relevant Group Member); other
than as permitted under Section 7.3(a), no tax Lien has been filed, and, to the
knowledge of the Borrower, no material claim is being asserted, with respect to
any such tax, fee or other charge for which appropriate reserves have not been
provided on the books of the relevant Group Member.
4.11 Federal Regulations. No part of the proceeds of any Loans, and
no other extensions of credit hereunder, will be used (a) for "buying" or
"carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U as now and from time to time hereafter in effect
for any purpose that violates the provisions of the Regulations of the Board or
(b) for any purpose that violates the provisions of the Regulations of the
Board.
4.12 Labor Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect: (a) there are no
strikes or other labor disputes against any Group Member pending or, to the
knowledge of the Borrower, threatened; (b) hours worked by and payment made to
employees of each Group Member have not been in violation of the Fair Labor
Standards Act or
42
any other applicable Requirement of Law dealing with such matters; and (c) all
payments due from any Group Member on account of employee health and welfare
insurance have been (or, after the contemplated restatement, shall be) paid or
accrued as a liability on the books of the relevant Group Member to the extent
required in accordance with GAAP to cause the consolidated financial statements
of the Borrower to fairly present the financial condition of the Borrower and
its Subsidiaries.
4.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Single Employer Plan,
and each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code. No termination of a Single Employer Plan has
occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such
five-year period. Except as disclosed in the Borrower's Form 8-K on January 20,
2005, as of December 31, 2004, the present value of all accrued benefits under
each Single Employer Plan (based on those assumptions used to fund such Plans)
did not, as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits by a material amount. Neither the
Borrower nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan that has resulted or could reasonably be
expected to result in a material liability under ERISA, and neither the Borrower
nor any Commonly Controlled Entity would become subject to any material
liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. No such Multiemployer Plan is in Reorganization or Insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
4.15 Subsidiaries. Except as disclosed to the Administrative Agent
by the Borrower in writing from time to time after the Closing Date, (a)
Schedule 4.15 sets forth the name and jurisdiction of incorporation of each
Subsidiary having assets in excess of $100,000 and, as to each such Subsidiary,
the percentage of each class of Capital Stock owned by any Loan Party and (b)
there are no outstanding subscriptions, options, warrants, calls, rights or
other agreements or commitments (other than stock options granted to employees
or directors and directors' qualifying shares) of any nature relating to any
Capital Stock of the Borrower or any Subsidiary, except as created by the Loan
Documents.
4.16 Use of Proceeds. The proceeds of the Term Loans shall be used
to refinance any existing indebtedness, to pay related fees and expenses, to
make pension contributions and for other general corporate purposes. The
proceeds of the Revolving Loans and the Swingline Loans, and the Letters of
Credit, shall be used for general corporate purposes.
4.17 Environmental Matters. Except as, in the aggregate, is not
reasonably expected to have a Material Adverse Effect:
(a) the facilities and properties currently or formerly owned,
leased or operated by any Group Member (the "Properties") do not contain,
and have not previously contained, any Materials of Environmental Concern
in amounts or concentrations or under circumstances that constitute or
constituted a violation of, or could give rise to liability under, any
Environmental Law;
43
(b) no Group Member has received or is aware of any notice of
violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental
Laws with regard to any of the Properties or the business operated by any
Group Member (the "Business"), nor does the Borrower have knowledge that
any such notice will be received or is being threatened;
(c) Materials of Environmental Concern have not been transported,
arranged to be disposed of or disposed of from the Properties in violation
of, or in a manner or to a location that could give rise to liability
under, any Environmental Law, nor have any Materials of Environmental
Concern been generated, treated, stored or disposed of at, on or under any
of the Properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which any Group Member is or will be named as a party
with respect to the Properties or the Business, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under
any Environmental Law with respect to the Properties or the Business;
(e) there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or
related to the operations of any Group Member in connection with the
Properties or otherwise in connection with the Business, in violation of
or in amounts or in a manner that could give rise to liability under
Environmental Laws;
(f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under or
about the Properties or violation of any Environmental Law with respect to
the Properties or the Business; and
(g) no Group Member has assumed any liability of any other Person
under Environmental Laws.
4.18 Accuracy of Information, etc. Neither the Confidential
Information Memorandum nor any other information, exhibit or report furnished by
or on behalf of any Loan Party to any Agent or any Lender in connection with the
negotiation and syndication of the Loan Documents or pursuant to the terms of
the Loan Documents, as of the date of this Agreement, contained any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements made therein not misleading in any material respect, in each
case subject to the qualifications contained in the Confidential Information
Memorandum.
4.19 Security Documents. (a) The Guarantee and Collateral Agreement
is effective to create in favor of the Administrative Agent, for the benefit of
the Lenders, a legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof. In the case of the Pledged Stock
described in the Guarantee and Collateral Agreement, when stock certificates
representing such Pledged Stock are delivered to the Administrative Agent, and
in the case of the other Collateral described in the Guarantee and Collateral
Agreement, when financing statements and other filings specified on Schedule
4.19(a) in appropriate form are filed in the offices specified on Schedule
4.19(a), the Guarantee and Collateral Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Collateral and the proceeds thereof, as security for
the Obligations (as
44
defined in the Guarantee and Collateral Agreement), in each case prior and
superior in right to any other Person (except, in the case of Collateral other
than Pledged Stock, Liens permitted by Section 7.3).
(b) Each of the Mortgages is effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and
proceeds thereof, and when the Mortgages are filed in the offices
specified on Schedule 1.1B, each such Mortgage shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest
of the Loan Parties in the Mortgaged Properties and the proceeds thereof,
as security for the Obligations (as defined in the relevant Mortgage), in
each case prior and superior in right to any other Person (except in
respect of the holder of Liens permitted by Sections 7.3(a) through (e)
and Section 7.3(p)). Schedule 4.19(b) lists, as of the Closing Date, each
parcel of owned real property and leased real property located in the
United States and held by the Borrower or any of its Subsidiaries that, in
the case of the owned real property, has a value, in the reasonable
opinion of the Borrower, in excess of $5,000,000.
4.20 Solvency. The Loan Parties (taken as a whole) are, and after
giving effect to the incurrence of all Indebtedness and obligations being
incurred in connection herewith will be and will continue to be, Solvent.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement of each
Lender to make the initial extension of credit requested to be made by it is
subject to the satisfaction (or waiver), prior to or concurrently with the
making of such extension of credit on the Closing Date, of the following
conditions precedent:
(a) Credit Agreement; Guarantee and Collateral Agreement. The
Administrative Agent shall have received (i) this Agreement, executed and
delivered by the Administrative Agent, the Borrower, the Required Lenders
(as defined in the Existing Credit Agreement) and each Person listed on
Schedule 1.1A having a Term Commitment or a Revolving Commitment in excess
of its commitment (if any) under the Existing Credit Agreement and (ii)
the Guarantee and Collateral Agreement, executed and delivered by the
Borrower and each Subsidiary Guarantor.
(b) Approvals. All material governmental and third party approvals
necessary in connection with the transactions contemplated hereby (other
than filings in respect of Collateral referred to in clauses (h) and (i)
below) shall have been obtained and be in full force and effect, and all
applicable waiting periods shall have expired without any action being
taken or threatened by any competent authority that would restrain,
prevent or otherwise impose adverse conditions on the financing
contemplated hereby.
(c) Lien Searches. The Administrative Agent shall have received the
results of a recent lien search in each of the jurisdictions where
material assets of the Loan Parties are located, and such search shall
reveal no liens on any of the assets of the Loan Parties except for liens
permitted by Section 7.3 or discharged on or prior to the Closing Date
pursuant to documentation satisfactory to the Administrative Agent.
(d) Fees. The Lenders, the Administrative Agent and the Arrangers
shall have received all fees required to be paid, and all expenses
required to be paid for which invoices have been presented at least two
days prior to the Closing Date (including the reasonable fees and expenses
of legal counsel), on or before the Closing Date. All such amounts will be
paid with proceeds of
45
Loans made on the Closing Date and will be reflected in the funding
instructions given by the Borrower to the Administrative Agent on or
before the Closing Date.
(e) Closing Certificate; Certified Certificate of Incorporation;
Good Standing Certificates. The Administrative Agent shall have received
(i) a certificate of each Loan Party, dated the Closing Date,
substantially in the form of Exhibit C, with appropriate insertions and
attachments, including the certificate of incorporation of each Loan Party
that is a corporation certified by the relevant authority of the
jurisdiction of organization of such Loan Party, and (ii) a good standing
certificate for each Loan Party from its jurisdiction of organization.
(f) Legal Opinions. The Administrative Agent shall have received the
following executed legal opinions:
(i) the legal opinion of Shearman & Sterling LLP, counsel to
the Borrower and its Subsidiaries, substantially in the form of
Exhibit F-1; and
(ii) the legal opinion of Xxxx X. Xxxxxxxx, assistant general
counsel of the Borrower and its Subsidiaries, substantially in the
form of Exhibit F-2.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
(g) Pledged Stock; Stock Powers; Pledged Notes. Except as otherwise
provided in the Guarantee and Collateral Agreement, the Administrative
Agent shall have received (i) the certificates (if any) representing the
shares of Capital Stock pledged pursuant to the Guarantee and Collateral
Agreement, together with an undated stock power for each such certificate
executed in blank by a duly authorized officer of the pledgor thereof and
(ii) each promissory note (if any) pledged to the Administrative Agent
pursuant to the Guarantee and Collateral Agreement endorsed (without
recourse) in blank (or accompanied by an executed transfer form in blank)
by the pledgor thereof.
(h) Filings, Registrations and Recordings. Each document (including
any Uniform Commercial Code financing statement) required by the Security
Documents or under law or reasonably requested by the Administrative Agent
to be filed, registered or recorded in order to create in favor of the
Administrative Agent, for the benefit of the Lenders, a perfected Lien on
the Collateral described therein, prior and superior in right to any other
Person (other than with respect to Liens expressly permitted by Section
7.3), shall be in proper form for filing, registration or recordation.
(i) Solvency Certificate. The Administrative Agent shall have
received a solvency certificate from the chief financial officer of the
Borrower that shall document the solvency of the Borrower and the Subsidiary
Guarantors taken as a whole after giving effect to the transactions
contemplated by the Loan Documents.
(j) Ratings. The Facilities shall have received a rating from
Xxxxx'x, S&P and Fitch.
(k) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of Section 5.2(b) of the
Guarantee and Collateral Agreement.
(l) Existing 364-Day Credit Agreement. The Administrative Agent
shall have received satisfactory evidence that the Existing 364-Day Credit
Agreement shall have been, or shall be,
46
concurrently with the occurrence of the Closing Date hereunder, terminated
and all amounts thereunder shall have been paid in full.
(m) Borrowing Base Certificate. The Administrative Agent shall have
received a Borrowing Base Certificate dated as of April 30, 2005 showing a
Borrowing Base as of such date in excess of the Aggregate Extensions of
Credit requested to be made on the Closing Date.
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it on any date
(including its initial extension of credit) is subject to the satisfaction of
the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct in all material respects on and as of such date
as if made on and as of such date (except as to any representation or
warranty that refers to a specific date and, in such case, as of such
specific date).
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
(c) Borrowing Base Certificate. If no Borrowing Base Certificate has
been delivered pursuant to Section 6.2(e) within 30 days prior to the
requested borrowing date, the Borrower shall have delivered a Borrowing
Base Certificate computed as of (i) if such requested borrowing date is
prior to the 20th day of the calendar month, the last day of the month
before the most recently ended month or (ii) if such requested borrowing
date is on or after the 20th day of the calendar month, the last day of
the most recently ended month.
Except as set forth in Section 2.7(b), each borrowing by and issuance of a
Letter of Credit on behalf of the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date of such extension of
credit that the conditions contained in this Section 5.2 have been satisfied.
5.3 Conditions Subsequent. With respect to Mortgaged Properties,
within 60 days after the Closing Date, the Administrative Agent shall have
received the materials set forth on Schedule 5.3.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain
in effect, any Letter of Credit remains outstanding or any Loan or other amount
is owing to any Lender or the Administrative Agent hereunder, the Borrower shall
and shall cause each of its Subsidiaries (other than Immaterial Subsidiaries and
JV Subsidiaries) to:
6.1 Financial Statements. Furnish to the Administrative Agent (for
delivery to each Lender):
(a) as soon as available, but in any event within 110 days after the
end of each fiscal year of the Borrower (or such shorter period as the
U.S. Securities and Exchange Commission may specify for the filing of
annual reports on Form 10-K), a copy of the audited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end of
such year and the related audited consolidated statements of income and of
cash flows for such year, setting forth in each case in comparative form
the figures for the previous year, reported on without a "going concern"
or like material qualification or exception, or qualification to the
financial statements arising out of
47
the scope of the audit, by Deloitte & Touche LLP or other independent
certified public accountants of nationally recognized standing; provided
that with respect to the fiscal year ended December 31, 2004, such
financial statements shall be delivered by no later than September 30,
2005; and
(b) as soon as available, but in any event not later than 60 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower (or such shorter period as the U.S. Securities and
Exchange Commission may specify for the filing of quarterly reports on
Form 10-Q), the unaudited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at the end of such quarter and the
related unaudited consolidated statements of income and of cash flows for
such quarter and the portion of the fiscal year through the end of such
quarter, setting forth in each case in comparative form the figures for
the previous year, certified by a Responsible Officer as being fairly
stated in all material respects (subject to normal year-end audit
adjustments); provided that if the audited financial statements for the
fiscal year ended December 31, 2004 have not been delivered by August 30,
2005, the financial statements for the fiscal quarter ended June 30, 2005,
shall be delivered by no later than September 30, 2005.
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied (except as approved by such accountants or officer, as the case may be,
and disclosed in reasonable detail therein) consistently throughout the periods
reflected therein and with prior periods.
6.2 Certificates; Other Information. Furnish to the Administrative
Agent (for delivery to each Lender) (or, in the case of clause (f), to the
relevant Lender):
(a) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer
stating that such Responsible Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate and
(ii) a Compliance Certificate containing (A) all information and
calculations necessary for determining compliance by each Group Member
with the provisions of this Agreement referred to therein as of the last
day of the fiscal quarter or fiscal year of the Borrower, as the case may
be, (B) to the extent not previously disclosed to the Administrative
Agent, a description of any change in the jurisdiction of organization of
any Loan Party and a list of any material Intellectual Property acquired
by any Loan Party since the date of the most recent report delivered
pursuant to this clause (B) (or, in the case of the first such report so
delivered, since the Closing Date), (C) a designation of any Immaterial
Subsidiary or Subsidiaries that has ceased to be an Immaterial Subsidiary
or Subsidiaries to ensure compliance with the 5% Requirement and (D) the
then applicable Excepted Secured Debt Amount and the Utilized Secured Debt
Amount as of the date of delivery of such certificate;
(b) as soon as available, and in any event no later than 45 days
after the end of each fiscal year of the Borrower, a reasonably detailed
consolidated budget for the following fiscal year (including a projected
consolidated balance sheet of the Borrower and its Subsidiaries as of the
end of the following fiscal year, the related consolidated statements of
projected cash flow and projected income (collectively, the
"Projections")) in the form delivered to the board of directors of the
Borrower, which Projections shall be accompanied by a certificate of a
Responsible Officer stating that such Projections are based on reasonable
estimates, information and assumptions and that such Responsible Officer
has no reason to believe that such Projections are incorrect or misleading
in any material respect; it being understood that the Projections are made
on the basis of the Borrower's then current good faith views and
assumptions with respect to future events, and assumptions that the
Borrower believes to be reasonable as of the date
48
thereof (it being understood that projections are inherently unreliable
and that actual performance may differ materially from the Projections);
(c) (i) within five days after the same are sent, copies of all
financial statements and reports that the Borrower sends to the holders of
any class of its debt securities or public equity securities and (ii)
within five days after the same are filed, copies of all financial
statements and reports that the Borrower may make to, or file with, the
SEC; provided that such delivery shall be deemed to have been made upon
delivery of notice to the Administrative Agent that such statements or
reports are available via the XXXXX system of the U.S. Securities and
Exchange Commission on the Internet;
(d) within ten Business Days after the occurrence thereof, notice of
any change in the Ratings; provided that the failure to provide such
notice shall not delay or otherwise affect any change in the Applicable
Margins, the Commitment Fee Rate or other amount payable hereunder which
is to occur upon a change in Ratings pursuant to the terms of this
Agreement;
(e) a Borrowing Base Certificate, computed as of (i) the last day of
each fiscal quarter when no Revolving Loans are outstanding and (ii) the
last day of each month when Revolving Loans are outstanding, no later than
the 20th day of each month following each date on which any calculation of
the Borrowing Base is required to be made; and
(f) promptly, such additional financial and other information as is
customarily maintained by the Loan Parties as any Lender, acting through
the Administrative Agent, may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent (after giving effect to any
applicable cure period), as the case may be, all its material obligations of
whatever nature, except where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP with respect thereto have been provided on the books of the relevant
Group Member and except where the failure to make such payment would not
otherwise result in an Event of Default under Section 8(e).
6.4 Maintenance of Existence; Compliance. (a)(i) In the case of the
Borrower and any "significant subsidiary" as defined in Rule 1-02 of Regulation
S-X promulgated by the SEC and included in the Borrower's most recently filed
Form 10-K, continue to engage in its principal line of business as now conducted
by it, (ii) preserve, renew and keep in full force and effect its organizational
existence and (iii) take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business, except, in each case, as otherwise permitted by Section 7.4 and
except, in the case of clause (ii) above (with respect to the good standing of
Subsidiaries only) and clause (iii) above, to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect; and (b)
comply with all Contractual Obligations and Requirements of Law except to the
extent that failure to comply therewith could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all material
property useful and necessary in its business in good working order and
condition consistent with past practice, ordinary wear and tear excepted and (b)
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks as are
usually insured against in the same general area by companies engaged in the
same or a similar business.
49
6.6 Inspection of Property; Books and Records; Discussions. (a) Keep
proper books of records and account in which full, true and correct entries
necessary to permit the Borrower and its Subsidiaries to maintain books of
records and account in conformity on a consolidated basis with GAAP and all
Requirements of Law shall be made of all material dealings and transactions in
relation to its business and activities and (b) permit representatives of any
Lender to visit and inspect any of its properties, in each case to the extent
that, in the case of its Subsidiaries (other than Subsidiary Guarantors) and
joint ventures, the Borrower has a right to do so, and examine and make
abstracts from any of its books and records at any reasonable time upon
reasonable notice to discuss the business, operations, properties and financial
and other condition of the Group Members with officers and employees of the
Group Members and with their independent certified public accountants; provided
that (x) the Borrower shall be permitted to be present, and to have its advisors
present, during any such visit or inspection and (y) any such visits and
inspections shall be coordinated through the Administrative Agent.
6.7 Notices. Promptly give notice to the Administrative Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default of which the
Borrower has knowledge;
(b) any (i) default or event of default under any Contractual
Obligation of any Group Member of which the Borrower has knowledge or (ii)
litigation, investigation or proceeding that may exist at any time between
any Group Member and any Governmental Authority of which the Borrower has
knowledge, that in either case, if not cured or if adversely determined,
as the case may be, could reasonably be expected to have a Material
Adverse Effect;
(c) any litigation or proceeding affecting any Group Member of which
the Borrower has knowledge (i) that could reasonably be expected to have a
Material Adverse Effect or (ii) which relates to any Loan Document;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower has knowledge thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, a failure to
make any required contribution to a Plan, the creation of any Lien in
favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC
or the Borrower or any Commonly Controlled Entity or any Multiemployer
Plan that could reasonably be expected to result in the withdrawal from,
or the termination, Reorganization or Insolvency of, any Plan; and
(e) any development or event of which the Borrower has knowledge
that has had or, in the reasonable judgment of the Borrower, could
reasonably be expected to have a Material Adverse Effect (other than
matters that have been disclosed in public filings).
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth in reasonable detail the occurrence referred
to therein and stating what action the relevant Group Member proposes to take
with respect thereto.
6.8 Environmental Laws. Except to the extent that failure to do so
could not in the aggregate reasonably be expected to result in a Material
Adverse Effect:
(a) Comply in all material respects with, and take commercially
reasonable steps to ensure compliance in all material respects by all
tenants and subtenants, if any, with, all applicable Environmental Laws,
and obtain and comply in all material respects with and maintain, and take
50
commercially reasonable steps to ensure that all tenants and subtenants
obtain and comply in all material respects with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws.
6.9 Additional Collateral, etc. (a) With respect to any property
acquired after the Closing Date by any Loan Party (other than (x) any property
described in paragraph (b), (c) or (d) below, and (y) any property subject to a
Lien expressly permitted by Section 7.3(k) or 7.3(p)) that is required to become
subject to a perfected lien in favor of the Administrative Agent, for the
benefit of the Lenders, under the terms of the Guarantee and Collateral
Agreement and as to which the Administrative Agent, for the benefit of the
Lenders, does not have a perfected Lien, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
or such other documents as the Administrative Agent deems reasonably necessary
or advisable to grant to the Administrative Agent, for the benefit of the
Lenders, a security interest in such property and (ii) take all actions
reasonably necessary or advisable to grant to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest (subject to
permitted exceptions under the Guarantee and Collateral Agreement) in such
property, including the filing of Uniform Commercial Code financing statements
in such jurisdictions as may be required by the Guarantee and Collateral
Agreement or by law or as may be requested by the Administrative Agent.
(b) With respect to any fee interest in any real property having a
value (together with improvements thereof) of at least $5,000,000 acquired
after the Closing Date by any Loan Party (other than (x) any such real
property subject to a Lien expressly permitted by Section 7.3(k) or 7.3(p)
and (y) real property located in a jurisdiction that imposes material real
estate recording taxes), within 60 days of acquisition of such real
property, (i) execute and deliver a first priority Mortgage, in favor of
the Administrative Agent, for the benefit of the Lenders, covering such
real property, (ii) if reasonably requested by the Administrative Agent,
provide the Lenders with (x) title and extended coverage insurance
covering such real property in an amount at least equal to the purchase
price of such real property (or such other amount as shall be reasonably
specified by the Administrative Agent) as well as, if available, a current
ALTA survey thereof, together with a surveyor's certificate, if available
and (y) to the extent the same can be obtained by the exercise of
commercially reasonable efforts, any consents or estoppels reasonably
deemed necessary or advisable by the Administrative Agent in connection
with such Mortgage, each of the foregoing in form and substance reasonably
satisfactory to the Administrative Agent and (iii) if reasonably requested
by the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described above, which opinions shall be
in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(c) With respect to any new Subsidiary (other than an Excluded
Foreign Subsidiary, Immaterial Subsidiary or Joint Venture Subsidiary)
created or acquired after the Closing Date by any Loan Party (which, for
the purposes of this paragraph (c), shall include any existing Subsidiary
that ceases to be an Excluded Foreign Subsidiary, Immaterial Subsidiary or
Joint Venture Subsidiary), within 30 days of formation or acquisition of
such Subsidiary, (i) execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement as the Administrative
Agent deems reasonably necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in the Capital Stock of such new Subsidiary
that is owned by any Loan Party, (ii) deliver to the Administrative Agent
51
the certificates representing such Capital Stock, together with undated
stock powers, in blank, executed and delivered by a duly authorized
officer of the relevant Loan Party, (iii) cause such new Subsidiary, if
such Subsidiary is a Wholly Owned Subsidiary and is not an Excluded
Foreign Subsidiary, (A) to become a party to the Guarantee and Collateral
Agreement, (B) to take such actions necessary or advisable to grant to the
Administrative Agent for the benefit of the Lenders a perfected first
priority security interest in the Collateral described in the Guarantee
and Collateral Agreement (subject to the exceptions provided therein) with
respect to such new Subsidiary, including the filing of Uniform Commercial
Code financing statements in such jurisdictions as may be required by the
Guarantee and Collateral Agreement or by law or as may be reasonably
requested by the Administrative Agent and (C) to deliver to the
Administrative Agent a certificate of such Subsidiary, substantially in
the form of Exhibit C, with appropriate insertions and attachments, (iv)
comply with the requirements of Section 6.9(b) with respect to any fee
interest in real property having a value (together with improvements
thereof) of at least $5,000,000 owned by such new Subsidiary and (v) if
reasonably requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
(d) With respect to any new first-tier Excluded Foreign Subsidiary
(other than any Immaterial Subsidiary) created or acquired after the
Closing Date by any Loan Party, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral
Agreement as the Administrative Agent deems necessary or advisable to
grant to the Administrative Agent, for the benefit of the Lenders, a
perfected first priority security interest in the Capital Stock of such
new Subsidiary that is owned by any such Loan Party (provided that in no
event shall more than 65% of the total outstanding voting Capital Stock of
any such new Subsidiary be required to be so pledged and provided further
that such grant shall not (A) be contrary to, or ineffective under,
applicable law or (B) be otherwise unduly onerous to such Loan Party in
relation to the benefits afforded to the Administrative Agent and the
Lenders thereby as reasonably determined by the Administrative Agent),
(ii) deliver to the Administrative Agent the certificates representing
such Capital Stock, together with undated stock powers, in blank, executed
and delivered by a duly authorized officer of the relevant Loan Party, and
take such other action as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the Administrative Agent's
security interest therein, and (iii) if reasonably requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form
and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(e) If the Battery Sale is not consummated by June 30, 2006, the
assets that would otherwise have been subject to such sale shall become
part of the Collateral in accordance with the requirements set forth in
this Section 6.9.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain
in effect, any Letter of Credit remains outstanding or any Loan or other amount
is owing to any Lender or the Administrative Agent hereunder, the Borrower shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
52
(a) Senior Secured Leverage Ratio. Permit the Senior Secured
Leverage Ratio as at the last day of any period of four consecutive fiscal
quarters of the Borrower ending with any fiscal quarter set forth below to
exceed the ratio set forth below opposite such fiscal quarter:
CONSOLIDATED
FISCAL QUARTER LEVERAGE RATIO
-------------------------------- --------------
June 30, 2005 2.75 to 1.00
September 30, 2005 2.75 to 1.00
December 31, 2005 2.75 to 1.00
March 31, 2006 2.75 to 1.00
June 30, 2006 2.75 to 1.00
September 30, 2006 2.50 to 1.00
December 31, 2006 2.50 to 1.00
March 31, 2007 2.50 to 1.00
June 30, 2007 2.50 to 1.00
September 30, 2007 2.50 to 1.00
December 31, 2007 and thereafter 2.25 to 1.00
7.2 Indebtedness. Create, issue, incur, assume, become liable in
respect of or suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) (i) Indebtedness of the Borrower owing to any Subsidiary and of
any Wholly Owned Subsidiary Guarantor owing to the Borrower or any other
Subsidiary, (ii) Indebtedness of any Subsidiary that is not a Loan Party
owing to any Subsidiary that is not a Loan Party and (iii) Indebtedness of
Subsidiaries that are not Loan Parties owing to Loan Parties to the extent
permitted by Sections 7.8(i), (j) or (k);
(c) Guarantee Obligations incurred in the ordinary course of
business by the Borrower or any of its Subsidiaries of obligations of any
Wholly Owned Subsidiary Guarantor;
(d) Indebtedness outstanding or committed to on the date hereof and
listed on Schedule 7.2(d) and any refinancings, refundings, renewals or
extensions thereof; provided that (i) any such refinancing of such
Indebtedness shall occur within the one-year period prior to, or
three-month period following, the maturity or initial call option date of
the applicable Indebtedness and (ii) any new Indebtedness refinancing such
Indebtedness (other than Excluded Refinanced Debt) (A) ranks pari passu
with or is subordinated to the Indebtedness being refinanced, (B) does not
exceed the principal amount of the Indebtedness being refinanced, (C) has
a longer maturity and average life than the Indebtedness being refinanced
and the Term Loans and (D) contains other customary limitations as
reasonably required by the Administrative Agent; provided further that the
amount of any such Indebtedness outstanding or committed to with respect
to (1) Permitted Receivables Financings may be up to, but shall not
exceed, the amounts set forth in the defined term "Permitted Receivables
Financings" and (2) unsecured lines of credit for Foreign Subsidiaries
shall not exceed $275,000,000;
(e) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 7.3(k) in an aggregate
principal amount not to exceed $100,000,000 at any one time outstanding;
53
(f) Indebtedness secured by all or a portion of the Collateral on a
second priority basis in an aggregate principal amount not to exceed
$500,000,000 at any one time outstanding; provided that (i) such
Indebtedness has a longer maturity and average life than the Term Loans
and, if such Indebtedness is incurred to refinance existing Indebtedness,
such existing Indebtedness, (ii) the holder of such Indebtedness enters
into an intercreditor agreement with the Administrative Agent reasonably
satisfactory to the Required Lenders (which agreement shall in any event
provide that the Obligations shall benefit from the Liens on all assets
subject to the CNTA Exception in priority to the holders of such second
priority Indebtedness, notwithstanding the relative order of incurrence of
such Indebtedness) and (iii) such Indebtedness is subject to other
customary limitations reasonably satisfactory to the Required Lenders;
(g) unsecured Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount (for the Borrower and all
Subsidiaries) not to exceed $500,000,000 at any one time outstanding;
(h) Indebtedness of a newly-acquired Subsidiary that is outstanding
on the date such Subsidiary is acquired; provided that (A) any such
Indebtedness was not created in contemplation of such purchase or other
acquisition in contravention of this Section 7.2, (B) the amount of such
Indebtedness is permitted under Section 7.8(h) and (C) if such
Indebtedness is secured by a Lien permitted under Section 7.3(p), such
Indebtedness shall not qualify for the CNTA Exception unless the total
amount of Indebtedness that may be secured by assets subject to the CNTA
Exception is not reduced by the acquisition of such Indebtedness (assuming
that such Subsidiary was acquired as of the last day of the most recently
ended fiscal year);
(i) Indebtedness or other financings in respect of synthetic leases
for, or other Indebtedness or other financings secured by, the Borrower's
world headquarters located in Troy, Michigan and manufacturing facilities
located in Gadsden, Alabama, Tuscaloosa, Alabama and Vienna Township,
Ohio, not to exceed $140,000,000 in the aggregate, and any refinancings,
refundings, renewals or extensions thereof; provided that any new
Indebtedness or other financings refinancing such Indebtedness shall not
cause the aggregate principal amount of all Indebtedness or other
financings outstanding under this paragraph to exceed $140,000,000;
(j) Non-Recourse Debt of Foreign Subsidiaries and JV Subsidiaries
under overdraft facilities, bank cash management facilities and letters of
credit issued in the ordinary course of business not to exceed
$150,000,000 at any one time outstanding; and
(k) additional Indebtedness of the Borrower or any of its
Subsidiaries, whether secured or unsecured, in an aggregate principal
amount (for the Borrower and all Subsidiaries) not to exceed $100,000,000
at any one time outstanding.
7.3 Liens. Create, incur, assume or suffer to exist any Lien upon
any of its property, whether now owned or hereafter acquired, except:
(a) Liens for taxes not yet due or that are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, lessor's or other like Liens arising in the ordinary course
of business that are not overdue for a period of more than 30 days or that
are being contested in good faith by appropriate proceedings;
54
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) (i) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and that do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries and (ii) with respect to Mortgaged
Properties for which title insurance policies in favor of the
Administrative Agent have been delivered, the Liens scheduled therein;
(f) any interest or title of a lessor under any lease entered into
by the Borrower or any Subsidiary in the ordinary course of its business
and covering only the assets so leased;
(g) Liens arising solely from precautionary filings of financing
statements under the Uniform Commercial Code of the applicable
jurisdictions in respect of consignments or operating leases entered into
by the Borrower or any of its Subsidiaries in the ordinary course of
business;
(h) customary rights of setoff and similar Liens in favor of
depositary institutions;
(i) Liens for judgments that have not yet become an Event of Default
under Section 8(h);
(j) Liens in existence on the date hereof listed on Schedule 7.3(j),
securing Indebtedness permitted by Section 7.2(d), provided that no such
Lien is spread to cover any additional property after the Closing Date and
that the amount of Indebtedness secured thereby is not increased;
(k) Liens securing Indebtedness of the Borrower or any Subsidiary
incurred pursuant to Section 7.2(e) to finance the acquisition of fixed or
capital assets, provided that (i) such Liens shall be created
substantially simultaneously with the acquisition of such fixed or capital
assets, (ii) such Liens do not at any time encumber any property other
than the property financed by such Indebtedness and (iii) the amount of
Indebtedness secured thereby is not increased;
(l) Liens securing Indebtedness of the Borrower or any Subsidiary
incurred pursuant to Section 7.2(f); provided that (i) such Lien is
provided to the holders of such Indebtedness on a second priority basis
and shall be subject to an intercreditor agreement reasonably satisfactory
to the Required Lenders and (ii) such Lien shall be granted solely on all
or a portion of the Collateral;
(m) Liens on the assets of Foreign Subsidiaries or JV Subsidiaries
securing Indebtedness permitted under Section 7.2(j);
(n) Liens securing Indebtedness of the Borrower or any Subsidiary
incurred pursuant to Section 7.2(k); provided that (i) no Lien may be
granted on the Collateral to secure such Indebtedness and (ii) the
aggregate fair market value of the assets subject to such Liens shall be
customary for asset-based financings;
(o) Liens created pursuant to the Security Documents;
55
(p) Liens upon any of the property and assets existing at the time
such property or asset is purchased or otherwise acquired by the Borrower
or any of its Subsidiaries; provided that any such Lien was not created in
contemplation of such purchase or other acquisition and does not extend to
or cover any property or assets other than the property or asset being so
purchased or otherwise acquired and the products and proceeds thereof; and
provided further that any Indebtedness or other obligations secured by
such Liens shall otherwise be permitted under Section 7.2 or this Section
7.3; and provided further still that any such Lien shall not secure any
Indebtedness that qualifies for the CNTA Exception unless the total amount
of Indebtedness that may be secured by assets subject to the CNTA
Exception is not reduced by the acquisition of such Indebtedness (assuming
that the Subsidiary was acquired as of the last day of the most recently
ended fiscal year);
(q) Liens on the Borrower's world headquarters located in Troy,
Michigan and manufacturing facilities located in Gadsden, Alabama,
Tuscaloosa, Alabama and Vienna Township, Ohio, to secure Indebtedness and
other financings permitted under Section 7.2(i);
(r) Liens on accounts receivable and other related assets in
connection with any Permitted Receivables Financing; and
(s) the modification, replacement, extension or renewal of any Lien
otherwise permitted under this Section 7.3 upon or in the same property and
assets theretofore subject thereto; provided that no such extension, renewal
or replacement shall extend to or cover any property or assets not
theretofore subject to the Lien being extended, renewed or replaced and shall
not secure any additional Indebtedness or other obligations other than (A)
after acquired property that is affixed or incorporated into the property
covered by such Lien and (B) the proceeds and products thereof; and provided
further that any Indebtedness secured by such Liens shall otherwise be
permitted under the terms of the Loan Documents.
7.4 Fundamental Changes. Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of all or substantially all of its
property or business, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any Subsidiary
Guarantor (provided that the Subsidiary Guarantor shall be the continuing
or surviving corporation and, if one of the Subsidiaries is a Wholly Owned
Subsidiary Guarantor, the Wholly Owned Subsidiary Guarantor shall be the
continuing or surviving corporation);
(b) any Subsidiary of the Borrower that is not a Subsidiary
Guarantor may be merged or consolidated with or into any other Subsidiary
of the Borrower that is not a Subsidiary Guarantor; provided that if one
Subsidiary to such merger or consolidation is a Wholly Owned Subsidiary,
the Wholly Owned Subsidiary shall be the continuing or surviving
corporation;
(c) any Subsidiary of the Borrower may Dispose of any or all of its
assets (i) to the Borrower or any Subsidiary Guarantor (upon voluntary
liquidation or otherwise); provided that any such Disposition by a Wholly
Owned Subsidiary Guarantor must be to another Wholly Owned Subsidiary
Guarantor or the Borrower, (ii) to a Subsidiary that is not a Subsidiary
Guarantor if the Subsidiary making the Disposition is not a Subsidiary
Guarantor (and provided that any such Disposition by a Wholly Owned
Subsidiary must be to a Wholly Owned Subsidiary and any such Disposition
by a first-tier Foreign Subsidiary must be to a first-tier Foreign
Subsidiary) or (iii)
56
pursuant to a Disposition permitted by Section 7.5, and upon the
occurrence of any of the foregoing events described in clauses (i), (ii),
or (iii), the disposing Subsidiary may be dissolved; and
(d) any Investment expressly permitted by Section 7.8 may be
structured as a merger, consolidation or amalgamation.
7.5 Disposition of Property. Dispose of any of its property, whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property in the ordinary
course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by clauses (i) and (ii) of Section
7.4(c);
(d) the sale or other Disposition of assets in connection with the
Battery Sale;
(e) the sales or Dispositions of assets constituting all or a
portion of the Automotive Holdings Group (but not including any related
foreign assets except for de minimis foreign assets );
(f) the contribution of assets (including Capital Stock) to
Subsidiaries and joint ventures (including newly-formed joint ventures) to
the extent the Investment in such Subsidiary or joint venture is permitted
by Sections 7.8(g), 7.8(i) or 7.8(k);
(g) the sale, issuance or contribution of any Subsidiary's Capital
Stock to the Borrower or any Wholly Owned Subsidiary Guarantor or, in the
case of a sale, issuance or contribution of Capital Stock of a Foreign
Subsidiary that is not a first-tier Foreign Subsidiary, to any Wholly
Owned Subsidiary;
(h) the Disposition of other property (which may include sales of
Automotive Holdings Group together with related foreign assets) having a
fair market value not to exceed (i) $650,000,000 in the aggregate for the
fiscal year ending December 31, 2005 and (ii) $500,000,000 for each fiscal
year thereafter; provided that (A) each such Disposition shall be for fair
market value and for consideration consisting of at least 75% cash or Cash
Equivalents, and (B) the fair market value of assets that may be Disposed
of in the fiscal year ending December 31, 2006 may be increased by an
amount, not to exceed $150,000,000, equal to the difference between
$650,000,000 and the fair market value of assets Disposed of in the fiscal
year ending December 31, 2005;
(i) Dispositions consisting of the transfer of rights in
Intellectual Property to third parties in the ordinary course of business
consistent with past practice;
(j) Dispositions of accounts receivables and other related assets in
connection with any Permitted Receivables Financing;
(k) Dispositions described on Schedule 7.5(k); and
(l) the Disposition of other property not otherwise expressly
permitted by this Section (i) having a fair market value of less than
$500,000 or (ii) having a fair market value of $500,000 or more, in which
case such Dispositions shall not exceed $10,000,000 in the aggregate for
any fiscal year of the Borrower.
57
7.6 Restricted Payments. Declare or pay any dividend (other than
dividends payable solely in common stock of the Person making such dividend) on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any Capital Stock of any Group Member, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of any Group Member
(collectively, "Restricted Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the Borrower or
any Subsidiary of the Borrower (with, in the case of a Subsidiary that is
not a Wholly Owned Subsidiary, a corresponding and ratable Restricted
Payment to the other holders of Capital Stock in such Subsidiary);
(b) (i) during each fiscal year while the Borrower's Ratings are
lower than BB+ with S&P or lower than Ba1 with Xxxxx'x, the Borrower may
pay dividends in an aggregate amount not to exceed $100,000,000 and (ii)
during each fiscal year while the Borrower's Ratings are at least BB+ with
S&P and at least Ba1 with Xxxxx'x, the Borrower may make Restricted
Payments in an aggregate amount not to exceed the greater of (A)
$160,000,000 and (B) 15% of Consolidated Net Income for the immediately
preceding fiscal year; provided that no Default or Event of Default will
result solely from a decline in the Borrower's Ratings to below the levels
specified in this clause (ii) so long as no further Restricted Payments
are made pursuant to this Section 7.6(b) until such time as the Borrower
again achieves the Ratings levels specified in this clause (ii) ; and
(c) any JV Subsidiary may make Restricted Payments required to be
made pursuant to the terms of the joint venture arrangements of holders of
its Capital Stock in existence on the date hereof or subsequently entered
into on customary terms consistent with past practice.
7.7 Capital Expenditures. Make or commit to make any Capital
Expenditure, except Capital Expenditures of the Borrower and its Subsidiaries in
the ordinary course of business not exceeding $1,100,000,000 in any fiscal year;
provided, that (a) any such amount referred to above, if not so expended in the
fiscal year for which it is permitted, may be carried over for expenditure in
the next succeeding fiscal year and (b) Capital Expenditures made pursuant to
this Section during any fiscal year shall be deemed made, first, in respect of
amounts permitted for such fiscal year as provided above and, second, in respect
of amounts carried over from the prior fiscal year pursuant to clause (a) above.
7.8 Investments. Make any advance, loan, extension of credit (by way
of guaranty or otherwise) or capital contribution to, or purchase any Capital
Stock, bonds, notes, debentures or other debt securities of, or any assets
constituting a business unit of, or make any other investment in, any Person
(all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) to the extent constituting Investments, any Indebtedness owed to
a Group Member or any contribution of assets, issuance of Capital Stock or
Disposition to a Group Member permitted to be made under Section 7.2, 7.4
or 7.5;
(d) loans and advances to employees of any Group Member in the
ordinary course of business (including for travel, entertainment and
relocation expenses) in an aggregate amount for all Group Members not to
exceed $25,000,000 at any one time outstanding;
58
(e) Investments in assets useful in the business of the Borrower and
its Subsidiaries made by the Borrower or any of its Subsidiaries with the
proceeds of any Reinvestment Deferred Amount;
(f) intercompany Investments by any Group Member in the Borrower or
any Person that, prior to such investment, is a Wholly Owned Subsidiary
Guarantor and intercompany Investments by any Foreign Subsidiary that is
not a first-tier Foreign Subsidiary in any Wholly Owned Subsidiary;
(g) contributions of assets by Subsidiaries of the Borrower that are
not Subsidiary Guarantors to joint ventures; provided that the
Consolidated EBITDA for the four fiscal quarters most recently ended
attributable to all such assets so contributed does not exceed 15% of the
Consolidated EBITDA of all Foreign Subsidiaries for such four fiscal
quarters (it being understood that no Default or Event of Default will
result from a breach of this clause solely by virtue of a decline in such
Consolidated EBITDA following a contribution of assets otherwise in
compliance with this Section 7.8(g) at the time such contribution was
made); provided further that, unless otherwise consented to by the
Required Lenders, to the extent any assets contributed by any Mexican
Subsidiary to a joint venture constitute consigned inventory of the
Borrower or any Subsidiary Guarantor, such consigned inventory shall be
excluded from the calculation of the Borrowing Base;
(h) acquisitions of all or substantially all of the Equity Interests
in a Person, or of all or substantially all of the assets of a Person or
constituting a business unit of a Person ("Acquisitions") not exceeding
$200,000,000 (including the amount of any Indebtedness assumed in
connection with such Acquisition) in the aggregate during the term of this
Agreement if the Borrower's Ratings from S&P and Xxxxx'x are lower than
BBB- and Baa3, respectively; provided that such aggregate amount shall be
increased to $500,000,000 (including the amount of any Indebtedness
assumed in connection with such Acquisition) if the Borrower's Ratings are
raised to at least BBB- by S&P and at least Baa3 by Xxxxx'x; and provided,
further, that no Default or Event of Default will result solely from a
decline in the Borrower's Ratings to below the levels specified in the
preceding proviso, so long as no further Acquisitions are made pursuant to
this Section 7.8(h) until such time as the Borrower again achieves the
Ratings levels specified in such proviso; and provided further still that
an Acquisition by a Wholly Owned Subsidiary that is a Foreign Subsidiary
of another Foreign Subsidiary shall not utilize the baskets set forth in
this Section 7.8(h) if such Acquisition is for cash and the cash is
ultimately received (whether or not directly from such Foreign Subsidiary)
by a Loan Party as a result of a dividend or distribution promptly
following such Acquisition;
(i) Investments in Wholly-Owned Subsidiaries that are not Subsidiary
Guarantors in an aggregate amount, net of the amount of the portion of the
Investment Credit not applied to reduce the amount of Investments made
pursuant to Section 7.8(k) below), at any time not exceeding 7.5% of
Consolidated Net Tangible Assets as of the last day of the Borrower's most
recent fiscal quarter;
(j) Investments described on Schedule 7.8(j); and
(k) other Investments not otherwise expressly permitted by this
Section (including, without limitation, the contribution of assets by a
Subsidiary Guarantor to a joint venture), in an aggregate amount, net of
the amount of the portion of the Investment Credit not applied to reduce
the amount of Investments made pursuant to Section 7.8(i), at any time not
exceeding 7.5% of Consolidated Net Tangible Assets as of the last day of
the Borrower's most recent fiscal quarter.
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7.9 Restrictions Relating to Existing Indentures. (a) Make or offer
to make any optional or voluntary payment, prepayment, repurchase or redemption
of or otherwise optionally or voluntarily defease or segregate funds with
respect to the notes issued under the Existing Indentures, other than in
connection with a refinancing thereof permitted by Section 7.2(d); (b) amend,
modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of the Existing
Indentures or the notes issued thereunder (other than any such amendment,
modification, waiver or other change that (i) would extend the maturity or
reduce the amount of any payment of principal thereof or reduce the rate or
extend any date for payment of interest thereon and (ii) does not involve the
payment of a consent fee); or (c) incur any Indebtedness (other than obligations
of the Loan Parties pursuant to the Loan Documents and Indebtedness permitted
under Sections 7.2(f) and 7.2(h)) which constitutes "Debt" as defined in the
1999 Indenture or incur obligations under Sale-Leaseback Transactions (other
than Sale-Leaseback Transactions permitted pursuant to Section 7.11) which
constitute "Attributable Debt" as defined in the 1999 Indenture, that, in either
case, qualifies for the CNTA Exception.
7.10 Transactions with Affiliates. Enter into any material
transaction, including any purchase, sale, lease or exchange of property, the
rendering of any service or the payment of any management, advisory or similar
fees, with any Affiliate (other than (i) the Borrower, (ii) any Wholly Owned
Subsidiary Guarantor or (iii) so long as such transaction is on commercially
reasonable terms consistent with past practice, any other Subsidiary of the
Borrower pursuant to joint venture arrangements of such Subsidiary) unless such
transaction is (a) otherwise permitted under this Agreement, (b) in the ordinary
course of business of the relevant Group Member, and (c) upon fair and
reasonable terms no less favorable to the relevant Group Member than it would
obtain in a comparable arm's length transaction with a Person that is not an
Affiliate.
7.11 Sales and Leasebacks. Enter into any arrangement (a
"Sale-Leaseback Transaction") with any Person providing for the leasing by any
Group Member to a Person other than a Group Member (and, in the case of a Loan
Party, to a Person other than a Loan Party) of real or personal property that
has been or is to be sold or transferred by such Group Member to such Person or
to any other Person to whom funds have been or are to be advanced by such Person
on the security of such property or rental obligations of such Group Member,
except for any Sale-Leaseback Transaction in which the lease entered into in
connection therewith has a Remaining Present Value at the time it is entered
into, together with the Remaining Present Value of other leases entered into
after the Closing Date in connection with Sale-Leaseback Transactions, not
exceeding $100,000,000 in the aggregate.
7.12 Swap Agreements. Enter into any Swap Agreement, except (a) Swap
Agreements entered into to hedge or mitigate risks to which the Borrower or any
Subsidiary has actual exposure (other than those in respect of Capital Stock)
and (b) Swap Agreements entered into in order to effectively cap, collar or
exchange interest rates (from fixed to floating rates, from one floating rate to
another floating rate or otherwise) with respect to any interest-bearing
liability or investment of the Borrower or any Subsidiary.
7.13 Changes in Fiscal Periods. Permit the fiscal year of the
Borrower to end on a day other than December 31 or change the Borrower's method
of determining fiscal quarters.
7.14 Negative Pledge Clauses. Enter into or suffer to exist or
become effective, any agreement prohibiting or conditioning the creation or
assumption of any Lien upon any of its property or assets other than:
(a) any such agreement with or in favor of the Administrative Agent
or the Lenders;
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(b) in connection with (i) any Liens permitted to be incurred under
Section 7.3(j) or (p), (ii) any Indebtedness permitted to be incurred
under Section 7.2(f), so long as such restriction is subject to
intercreditor arrangements satisfactory to the Required Lenders and (iii)
any Indebtedness permitted to be incurred under Section 7.2(h);
(c) any such agreement prohibiting other encumbrances on specific
property and assets of the Borrower or any of its Subsidiaries, which
agreement secures the payment of Indebtedness incurred solely to acquire,
construct or improve such property or assets or to finance the purchase
price therefor (including, without limitation, Capitalized Lease
Obligations) and which Indebtedness is otherwise permitted to be incurred
under the terms of this Agreement;
(d) any agreement setting forth customary restrictions on the
subletting, assignment or transfer of any property or asset that is a
lease, license, conveyance or contract of similar property or assets;
(e) any restriction imposed in respect of Non-Recourse Debt of a
Subsidiary that is not a Loan Party to the extent such Indebtedness is
permitted by the terms of this Agreement;
(f) any restriction or encumbrance imposed pursuant to an agreement
that has been entered into by the Borrower or any of its Subsidiaries for
the disposition of any of its property or assets so long as such
Disposition is otherwise permitted to be made under Section 7.5;
(g) any such agreement imposed in connection with consignment
agreements entered into in the ordinary course of business; and
(h) restrictions imposed on JV Subsidiaries pursuant to the terms of
the joint venture arrangements of holders of the Capital Stock of such JV
Subsidiaries in existence on the date hereof or subsequently entered into
on customary terms consistent with past practice.
7.15 Clauses Restricting Subsidiary Distributions. Except in
connection with joint venture arrangements in effect on the date hereof or
entered into on customary terms consistent with past practice, enter into or
suffer to exist or become effective any consensual encumbrance or restriction on
the ability of any Subsidiary of the Borrower to (a) make Restricted Payments in
respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness
owed to, the Borrower or any other Subsidiary of the Borrower, (b) make loans or
advances to, or other Investments in, the Borrower or any other Subsidiary of
the Borrower or (c) transfer any of its assets to the Borrower or any other
Subsidiary of the Borrower, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the Loan
Documents and (ii) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement that has been entered into in connection with the
Disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or
the Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder or under any other Loan
Document, within five days after any such interest or other amount becomes
due in accordance with the terms hereof; or
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(b) any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it at
any time under or in connection with this Agreement or any such other Loan
Document shall prove to have been inaccurate in any material respect on or
as of the date made or deemed made; or
(c) any Loan Party shall default in the observance or performance of
any agreement contained in Section 6.2(e), clause (i) or (ii) of Section
6.4(a), Section 6.7(a) or Section 7 of this Agreement or Section 5.5 or
Section 5.7(b) of the Guarantee and Collateral Agreement; or
(d) any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section),
and such default shall continue unremedied for a period of 30 days after
the earlier of the Borrower obtaining knowledge of such default or receipt
of notice thereof from the Administrative Agent; or
(e) any Material Group Member shall (i) default in making any
required payment of any principal of any Indebtedness (including any
Guarantee Obligation, but excluding the Loans) beyond any applicable grace
period; or (ii) default in making any required payment of any interest on
any such Indebtedness beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or
(iii) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become
payable; provided, that a default, event or condition described in clause
(i), (ii) or (iii) of this paragraph (e) shall not at any time constitute
an Event of Default unless, at such time, one or more defaults, events or
conditions of the type described in clauses (i), (ii) and (iii) of this
paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds
$50,000,000; or
(f) (i) any Material Group Member shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it
or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or any Material Group Member shall make a
general assignment for the benefit of its creditors; or (ii) there shall
be commenced against any Material Group Member any case, proceeding or
other action of a nature referred to in clause (i) above that (A) results
in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed or undischarged for a period of 90
days; or (iii) there shall be commenced against any Material Group Member
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for
any such relief that shall not have been vacated, discharged, or stayed or
bonded pending appeal within 90 days from the entry thereof; or (iv) any
Material Group Member shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii),
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or (iii) above; or (v) any Material Group Member shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) (i) any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of any
Group Member or any Commonly Controlled Entity, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) any Group Member or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all
other such events or conditions, if any, could, in the sole reasonable
judgment of the Required Lenders, reasonably be expected to have a
Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against any
Material Group Member involving a liability (not paid or fully covered by
insurance as to which the relevant insurance company has acknowledged
coverage) of (i) of $40,000,000 or more in the case of any single judgment
or decree or (ii) $100,000,000 or more in the aggregate, in the case of
all such judgments and decrees, and all such judgments or decrees shall
not have been vacated, discharged, stayed or bonded pending appeal within
60 days from the entry thereof; or
(i) any of the Security Documents shall cease, for any reason, to be
in full force and effect, or any Loan Party shall so assert in writing, or
any Lien created by any of the Security Documents shall cease to be
enforceable and of the same effect and priority purported to be created
thereby; or
(j) the guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason, to be in full force and
effect or any Loan Party shall so assert in writing; or
(k) a Change of Control shall have occurred;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents (including all amounts of L/C Obligations, whether or
not the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) shall immediately become due and
payable, and (B) if such event is any other Event of Default, either or both of
the following actions may be taken: (i) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower declare the
Revolving Commitments to be terminated forthwith, whereupon the Revolving
Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have
63
presented the documents required thereunder) to be due and payable forthwith,
whereupon the same shall immediately become due and payable. With respect to all
Letters of Credit with respect to which presentment for honor shall not have
occurred at the time of an acceleration pursuant to this paragraph, the Borrower
shall at such time deposit in a cash collateral account opened by the
Administrative Agent an amount equal to the aggregate then undrawn and unexpired
amount of such Letters of Credit. Amounts held in such cash collateral account
shall be applied by the Administrative Agent to the payment of drafts drawn
under such Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any, shall be
applied to repay other obligations of the Borrower hereunder and under the other
Loan Documents. After all such Letters of Credit shall have expired or been
fully drawn upon, all Reimbursement Obligations shall have been satisfied and
all other obligations of the Borrower hereunder and under the other Loan
Documents shall have been paid in full, the balance, if any, in such cash
collateral account shall be returned to the Borrower (or such other Person as
may be lawfully entitled thereto). Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived by the Borrower.
SECTION 9. THE ADMINISTRATIVE AGENT
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto,
including, without limitation, the execution of intercreditor agreements in
connection with transactions permitted under this Agreement (and each Lender
hereby agrees to be bound by any such agreement). Notwithstanding any provision
to the contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except to the extent that any of the foregoing are found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the
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agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
9.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders (or, if so specified
by this Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take any
such action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, if so
specified by this Agreement, all Lenders), and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
9.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
unless the Administrative Agent has received notice from a Lender or the
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders); provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
9.6 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by the
Administrative Agent hereafter taken, including any review of the affairs of a
Loan Party or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise),
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prospects or creditworthiness of any Loan Party or any affiliate of a Loan Party
that may come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Aggregate Exposure Percentages in effect
on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the
Loans) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by such Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the
Administrative Agent's gross negligence or willful misconduct. The agreements in
this Section shall survive the payment of the Loans and all other amounts
payable hereunder.
9.8 The Administrative Agent in Its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with any Loan Party as though the
Administrative Agent were not the Administrative Agent. With respect to its
Loans made or renewed by it and with respect to any Letter of Credit issued or
participated in by it, the Administrative Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not the Administrative Agent, and the terms
"Lender" and "Lenders" shall include each Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8(a) or Section
8(f) with respect to the Borrower shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
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9.10 Syndication Agent. The Syndication Agent shall not have any
duties or responsibilities hereunder in its capacity as such.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may,
or, with the written consent of the Required Lenders, the Administrative Agent
and each Loan Party party to the relevant Loan Document may, from time to time,
(a) enter into written amendments, supplements or modifications hereto and to
the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the
final scheduled date of maturity of any Loan, extend the scheduled date of any
amortization payment in respect of any Term Loan, reduce the stated rate of any
interest or fee payable hereunder (except (x) in connection with the waiver of
applicability of any post-default increase in interest rates (which waiver shall
be effective with the consent of the Majority Facility Lenders of each adversely
affected Facility) and (y) that any amendment or modification of defined terms
used in the financial covenants in this Agreement shall not constitute a
reduction in the rate of interest or fees for purposes of this clause (i)) or
extend the scheduled date of any payment thereof, or increase the amount or
extend the expiration date of any Lender's Revolving Commitment, or amend,
modify or waive any provision of Section 10.8, in each case without the written
consent of each Lender directly affected thereby; (ii) eliminate or reduce the
voting rights of any Lender under this Section 10.1 or Section 10.2 without the
written consent of such Lender; (iii) reduce any percentage specified in the
definition of Required Lenders, consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement and the other
Loan Documents, release all or substantially all of the Collateral or release
any significant Subsidiary Guarantor from its obligations under the Guarantee
and Collateral Agreement, in each case without the written consent of all
Lenders (other than as permitted by the Guarantee and Collateral Agreement);
(iv) amend, modify or waive any provision of Section 2.10 or 2.11 without the
written consent of the Majority Facility Lenders in respect of each Facility
adversely affected thereby, (v) amend, modify or waive any provision of Section
2.17 without the written consent of all Lenders in respect of each Facility
adversely affected thereby; (vi) reduce the amount of Net Cash Proceeds or
Excess Cash Flow required to be applied to prepay Loans under this Agreement or
lengthen the period of time described in the defined term "Reinvestment
Prepayment Date" without the written consent of the Majority Facility Lenders
with respect to each Facility; (vii) reduce the percentage specified in the
definition of Majority Facility Lenders with respect to any Facility without the
written consent of all Lenders under such Facility; (viii) amend, modify or
waive any provision of Section 5.2 without the written consent of the Majority
Facility Lenders under the Revolving Facility, (ix) amend, modify or waive any
provision of Section 9 without the written consent of the Administrative Agent;
(x) amend, modify or waive any provision of Section 2.6 or 2.7 without the
written consent of the Swingline Lenders; or (xi) amend, modify or waive any
provision of Section 3 without the written consent of the Issuing Lenders. Any
such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties, the
Lenders, the Administrative Agent and all future holders of the Loans. In the
case of any waiver, the Loan Parties, the Lenders and the Administrative Agent
shall be restored to their former position and rights hereunder and under the
other Loan Documents, and any Default or Event of Default waived shall be deemed
to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
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10.2 Additional Amendment Provisions. Notwithstanding anything to
the contrary set forth herein, this Agreement may be amended (or amended and
restated) with the written consent of the Required Lenders, the Administrative
Agent and the Borrower (A) to add one or more additional credit facilities to
this Agreement and to permit the extensions of credit from time to time
outstanding thereunder and the accrued interest and fees in respect thereof to
share ratably in the benefits of this Agreement and the other Loan Documents
with the Term Loans and Revolving Extensions of Credit and the accrued interest
and fees in respect thereof and (B) to include appropriately the Lenders holding
such credit facilities in any determination of the Required Lenders and Majority
Facility Lenders. Notwithstanding anything to the contrary set forth herein, any
amendment, modification or waiver that would otherwise require the written
consent of all Lenders or all Lenders under a Facility shall be permitted with
the written consent of the Supermajority Lenders (and, in the case of any matter
requiring the written consent of all Lenders under a Facility, the Supermajority
Facility Lenders under such Facility), the Administrative Agent and the Borrower
(and to the extent applicable, the Swingline Lenders and the Issuing Lenders) if
(1) each Lender who is entitled to consent to such amendment and who has not
consented to such amendment, modification or waiver (each, a "Non-Consenting
Lender") is replaced in accordance with the terms of Section 2.22 or (2) the
Commitment of such Non-Consenting Lender is terminated upon the effectiveness of
such amendment, modification or waiver and at the time such amendment,
modification or waiver becomes effective, such Non-Consenting Lender receives
payment in full of the principal of and interest accrued on each Loan made by it
and all other amounts owing to it or accrued for its account under this
Agreement.
10.3 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
Borrower: Delphi Corporation
0000 Xxxxxx Xxxxx
Xxxx, XX 00000
Attention: Treasurer
Telecopy: 000-000-0000
Telephone: 000-000-0000
With a copy to:
Assistant General Counsel, Commercial and
Transactional
Telecopy: 000-000-0000
Telephone: 000-000-0000
Administrative Agent: JPMorgan Chase Bank, N.A.
Agent Bank Services Group
0000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Khuyen Ta
Telecopy: 000-000-0000
Telephone: 000-000-0000
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With a copy to:
JPMorgan Chase Bank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy: 212-270-5484
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Section 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
10.4 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
10.5 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans and other extensions of credit hereunder.
10.6 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
or reimburse the Administrative Agent and the Arrangers for all their respective
out-of-pocket costs and expenses incurred in connection with the development,
preparation, syndication and execution of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby, including
the reasonable fees and disbursements of counsel to the Administrative Agent and
the Arrangers and filing and recording fees and expenses, with statements with
respect to the foregoing to be submitted to the Borrower prior to the Closing
Date (in the case of amounts to be paid on the Closing Date) and from time to
time thereafter on a quarterly basis or such other periodic basis as the
Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender
and the Administrative Agent for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents or in
connection with any refinancing or restructuring of the credit arrangements
under this Agreement in the nature of a "work-out" arising out of an Event of
Default under Section 8(a) or pursuant to any insolvency or bankruptcy
proceeding, including the fees and disbursements of counsel (including the
allocated fees and expenses of in-house counsel) to each Lender and of counsel
to the Administrative Agent, (c) to pay, indemnify, and hold each Lender, the
Administrative Agent and the Arrangers harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other taxes, if any, that may be payable or
69
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender, the Administrative
Agent and the Arrangers and their respective officers, directors, employees,
affiliates, agents and controlling persons (each, an "Indemnitee") harmless from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and
any such other documents, including any of the foregoing relating to the use of
proceeds of the Loans or the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of any Group Member or
any of the Properties and the reasonable fees and expenses of legal counsel in
connection with claims, actions or proceedings by any Indemnitee against any
Loan Party under any Loan Document (all the foregoing in this clause (d),
collectively, the "Indemnified Liabilities"), provided, that the Borrower shall
have no obligation hereunder to any Indemnitee with respect to Indemnified
Liabilities to the extent such Indemnified Liabilities are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such Indemnitee (and its
respective officers, directors, employees, affiliates, agents and controlling
persons). Without limiting the foregoing, and to the extent permitted by
applicable law, the Borrower agrees not to assert and to cause its Subsidiaries
not to assert, and hereby waives and agrees to cause its Subsidiaries to waive,
all rights for contribution or any other rights of recovery with respect to all
claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature, under or related to Environmental Laws,
that any of them might have by statute or otherwise against any Indemnitee. All
amounts due under this Section 10.6 shall be payable not later than 10 days
after written demand therefor. Statements payable by the Borrower pursuant to
this Section 10.5 shall be submitted to the Treasurer (Telephone No.
000-000-0000) (Telecopy No. 248-813-2649), at the address of the Borrower set
forth in Section 10.3, or to such other Person or address as may be hereafter
designated by the Borrower in a written notice to the Administrative Agent. The
agreements in this Section 10.6 shall survive repayment of the Loans and all
other amounts payable hereunder.
10.7 Successors and Assigns; Participations and Assignments. (a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby
(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.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees (each, an
"Assignee") all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans at
the time owing to it) with the prior written consent of:
(A) the Borrower (such consent not to be unreasonably withheld
or delayed), provided that no consent of the Borrower shall be
required for (1) an assignment to a Lender or an affiliate of a
Lender, (2) an assignment of all or any portion of a Term Loan to an
Approved Fund (as defined below) or (3) if an Event of Default has
occurred and is continuing, an assignment to any other Person;
(B) the Administrative Agent (such consent not to be
unreasonably withheld or delayed), provided that no consent of the
Administrative Agent shall be required for an
70
assignment of all or any portion of a Term Loan to a Lender, an
affiliate of a Lender or an Approved Fund; and
(C) each Issuing Lender and each Swingline Lender (such
consents, in each case, not to be unreasonably withheld or delayed),
provided that no consent of the Issuing Lenders or the Swingline
Lenders shall be required for an assignment of all or any portion of
a Term Loan.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an
affiliate of a Lender or an Approved Fund or an assignment of the
entire remaining amount of the assigning Lender's Commitments or
Loans under any Facility, the amount of the Commitments or Loans of
the assigning Lender subject to each such assignment (determined as
of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be
less than $10,000,000 (or, in the case of the Term Facility,
$1,000,000) unless each of the Borrower and the Administrative Agent
otherwise consent, provided that (1) no such consent of the Borrower
shall be required if an Event of Default has occurred and is
continuing and (2) such amounts shall be aggregated in respect of
each Lender and its affiliates or Approved Funds, if any;
(B) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500 (which shall in no
event be for the account of the Borrower), provided that multiple
contemporaneous assignments may be aggregated in respect of each
Lender and its affiliates or Approved Funds, if any, to permit
payment of a single fee; and
(C) the Assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an administrative questionnaire.
For the purposes of this Section 10.7, "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 or advises
a Lender in a managerial capacity pursuant to formal arrangements with
such Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified in
each Assignment and Assumption the Assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Assumption, be released
from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Sections 2.18, 2.19, 2.20 and 10.6). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not
comply with this Section 10.7 shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (c) of this Section.
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(iv) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans and L/C Obligations
owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"), which Register shall be made available by the
Administrative Agent to any Lender upon such Lender's prior written
request. The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent, the Issuing Lenders and the Lenders
may treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an Assignee, the
Assignee's completed administrative questionnaire (unless the Assignee
shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section,
the Administrative Agent shall accept such Assignment and Assumption
and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it
has been recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it); provided that (A) such Lender's
obligations under this Agreement shall remain unchanged, (B) such Lender
shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Borrower, the Administrative
Agent, the Issuing Lender and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement pursuant to
which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement;
provided that such agreement may provide that such Lender will not,
without the consent of the Participant, agree to any amendment,
modification or waiver that (1) requires the consent of each Lender
directly affected thereby pursuant to the proviso to the second sentence
of Section 10.1 and (2) directly affects such Participant. Subject to
paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.18, 2.19 and
2.20 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 10.8(b) as though it were a Lender, provided such
Participant shall be subject to Section 10.8(a) as though it were a
Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.18 or 2.19 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. Any
Participant that is a Non-U.S. Lender shall not be entitled to the
benefits of Section 2.19 unless such Participant complies with Section
2.19(d).
(d) Any Lender may at any time (i) pledge or assign a security
interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank or (ii) transfer its rights
to receive payments under this Agreement to one or more of its Affiliates,
and this Section shall not
72
apply to any such pledge or assignment of a security interest or such
transfer of rights; provided that no such pledge or assignment of a
security interest or transfer of rights shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or Assignee or
such transferee for such Lender as a party hereto; provided further that
no such transferee shall be entitled to receive any greater payment under
Section 2.18, 2.19 or 2.20 than the applicable Lender would have been
entitled to receive.
(e) The Borrower, upon receipt of written notice from the relevant
Lender, agrees to issue Notes to any Lender requiring Notes to facilitate
transactions of the type described in paragraph (d) above.
(f) Notwithstanding the foregoing, any Conduit Lender may assign any
or all of the Loans it may have funded hereunder to its designating Lender
without the consent of the Borrower or the Administrative Agent and
without regard to the limitations set forth in Section 10.7(b). Each of
the Borrower, each Lender and the Administrative Agent hereby confirms
that it will not institute against a Conduit Lender or join any other
Person in instituting against a Conduit Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under
any state bankruptcy or similar law, for one year and one day after the
payment in full of the latest maturing commercial paper note issued by
such Conduit Lender; provided, however, that each Lender designating any
Conduit Lender hereby agrees to indemnify, save and hold harmless each
other party hereto for any loss, cost, damage or expense arising out of
its inability to institute such a proceeding against such Conduit Lender
during such period of forbearance.
10.8 Adjustments; Set-off. (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular Lender
or to the Lenders under a particular Facility, if any Lender (a "Benefitted
Lender") shall receive any payment of all or part of the Obligations owing to
it, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of the Obligations owing to such other Lender, such Benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of the Obligations owing to each such other Lender, or shall provide
such other Lenders with the benefits of any such collateral, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the
extent permitted by applicable law, upon any amount becoming due and
payable by the Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise), to set off and appropriate and apply against
such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held
or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower, as the case may be. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after
any such setoff and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such
setoff and application.
10.9 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall
73
be deemed to constitute one and the same instrument. Delivery of an executed
signature page of this Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
10.10 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.11 Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents. This Agreement
amends and restates the Existing Credit Agreement and supersedes and replaces
the terms thereof in their entirety.
10.12 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.13 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts
of the State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower, as the case may be at its address set forth in Section 10.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential
damages.
10.14 Acknowledgements. The Borrower hereby acknowledges that:
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(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
10.15 Releases of Guarantees and Liens. (a) Notwithstanding anything
to the contrary contained herein or in any other Loan Document, the
Administrative Agent is hereby irrevocably authorized by each Lender (without
requirement of notice to or consent of any Lender except as expressly required
by Section 10.1) to take, and the Administrative Agent hereby agrees to take,
any action requested by the Borrower having the effect of releasing any
Collateral or guarantee obligations (i) to the extent necessary to permit
consummation of any transaction not prohibited by any Loan Document or that has
been consented to in accordance with Section 10.1 or (ii) under the
circumstances described in paragraphs (b) and (c) below.
(b) All collateral will be released at the Borrower's request upon
the satisfaction of the following conditions: (i) the Borrower shall have
received a Rating of BBB- by S&P or a Rating of Baa3 by Xxxxx'x and (ii)
the Term Loans shall have been repaid in full (the date of such release,
the "Release Date"). If, following the Release Date, the Borrower's
Ratings shall cease to be at least BBB- by S&P or Baa3 by Xxxxx'x, the
Borrower shall promptly, and in any event within 30 days, enter into
documentation reasonably requested by the Administrative Agent so as to
cause the Loans to be secured on the same basis as such Loans were secured
prior to the Release Date.
(c) At such time as the Loans, the Reimbursement Obligations and the
other obligations under the Loan Documents (other than obligations under
or in respect of Swap Agreements or contingent obligations for which no
demand has been made) shall have been paid in full, the Commitments have
been terminated and no Letters of Credit shall be outstanding, the
Collateral shall be released from the Liens created by the Security
Documents, and the Security Documents and all obligations (other than
those expressly stated to survive such termination) of the Administrative
Agent and each Loan Party under the Security Documents shall terminate,
all without delivery of any instrument or performance of any act by any
Person.
10.16 Confidentiality. Each of the Administrative Agent and each
Lender agrees to keep confidential all non-public information provided to it by
any Loan Party, the Administrative Agent or any Lender pursuant to or in
connection with this Agreement that is designated by the provider thereof as
confidential; provided that nothing herein shall prevent the Administrative
Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender or any affiliate thereof, (b) subject to
an agreement to comply with the provisions of this Section, to any actual or
prospective Transferee or any direct or indirect counterparty to any Swap
Agreement (or any professional advisor to such counterparty), (c) to its
employees, directors, agents, attorneys, accountants and other professional
advisors or those of any of its affiliates, (d) upon the request or demand of
any Governmental Authority, (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection with any
litigation or similar proceeding, (g) that has been publicly disclosed, (h) to
the National Association of
75
Insurance Commissioners or any similar organization or any nationally recognized
rating agency that requires access to information about a Lender's investment
portfolio in connection with ratings issued with respect to such Lender, or (i)
in connection with the exercise of any remedy hereunder or under any other Loan
Document.
10.17 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.18 USA PATRIOT ACT. Each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender to identify the Borrower in accordance with the Act.
10.19 Administrative Agent's Discretion in Dealing with Collateral.
Notwithstanding anything to the contrary elsewhere in the Loan Documents, the
Administrative Agent shall have full and complete authority and discretion (a)
to determine the order in which it shall exercise remedies against any of the
Collateral and (b) to alter the order set forth in any Security Document of the
application to the Obligations of any proceeds realized upon the exercise of any
such remedies in respect of the Collateral (including to provide for the holding
of any such proceeds in any collateral account pending the consummation of any
realization of or upon any other Collateral) as it shall determine, in each case
with the objective of assuring that the ultimate realizations by the Lenders on
account of all the Collateral are as ratable as is reasonably practicable.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
DELPHI CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Print Name: Xxxx X. Xxxxxxx
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Its: Acting Chief Financial Officer
-----------------------------------------
JPMORGAN CHASE BANK, N.A. as
Administrative Agent and as a Lender
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxxxxx
----------------------------------------
Title: Vice President
---------------------------------------
CITICORP USA, INC., as
Syndication Agent and as a Lender
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxxxx
----------------------------------------
Title: Vice President
---------------------------------------
DEUTSCHE BANK AG NEW YORK BRANCH, as
Co-Documentation Agent for the Revolving Facility,
Documentation Agent for the Term Facility, and as
a Lender
By: /s/ Xxxxxxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxxxxxx Xxxxxx
---------------------------------------
Title: Director
---------------------------------------
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxx
---------------------------------------
Title: Director
---------------------------------------
CREDIT SUISSE, Cayman Islands Branch, as
Co-Documentation Agent for the Revolving Facility
and as a Lender
By: /s/ Xxxx Xxxxxxx
---------------------------------------------
Name: Xxxx Xxxxxxx
---------------------------------------
Title: Director
---------------------------------------
By: /s/Xxxxxxx Xxxxxxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
---------------------------------------
Title: Associate
---------------------------------------
Signature Page to Credit Agreement
HSBC Bank USA, National Association as
Co-Documentation Agent for the Revolving Facility
and as a Lender
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxx
---------------------------------------
Title: Managing Director
--------------------------------------
Signature page for the 5-Year Third Amended
and Restated Credit Agreement, dated as of
June 14, 2005 among Delphi Corporation and
the lenders party thereto
[Name of Lender]
By:
---------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Signature Page to Credit Agreement
