Exhibit
10.6
EXECUTION VERSION
$650,000,000
REVOLVING CREDIT AND GUARANTY
AGREEMENT
Dated as of January 31, 2008
Among
XXXX HOLDING CORPORATION,
as Borrower
and
THE GUARANTORS PARTY HERETO,
and
CITICORP USA, INC.,
as Administrative Agent and Collateral Agent
and
CITICORP USA, INC.,
and
JPMORGAN CHASE BANK, N.A.,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Initial Issuing Banks
and
THE INITIAL LENDERS AND THE OTHER LENDERS PARTY HERETO
XXXXXX BROTHERS INC.
as Syndication Agent
and
BARCLAYS CAPITAL
as Documentation Agent
CITIGROUP GLOBAL MARKETS, INC.,
and
XXXXXX BROTHERS INC.
as Joint Lead Arrangers
and
CITIGROUP GLOBAL MARKETS, INC.,
XXXXXX BROTHERS INC.
and
BARCLAYS BANK PLC
as Joint Bookrunners
TABLE OF CONTENTS
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Page |
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ARTICLE I |
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DEFINITIONS AND ACCOUNTING TERMS |
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Section 1.01
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Certain Defined Terms
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2 |
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Section 1.02
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Computation of Time Periods
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42 |
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Section 1.03
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Accounting Terms and Financial Determinations
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42 |
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Section 1.04
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Terms Generally
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43 |
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Section 1.05
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Reserves
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43 |
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ARTICLE II |
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AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT |
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Section 2.01
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The Advances
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43 |
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Section 2.02
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Making the Advances
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44 |
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Section 2.03
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Issuance of and Drawings and Reimbursement Under Letters of Credit
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47 |
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Section 2.04
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Repayment of Advances
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53 |
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Section 2.05
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Termination or Reduction of Commitments
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54 |
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Section 2.06
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Prepayments
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54 |
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Section 2.07
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Interest
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56 |
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Section 2.08
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Fees
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57 |
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Section 2.09
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Conversion of Advances
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57 |
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Section 2.10
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Increased Costs, Etc. |
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58 |
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Section 2.11
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Payments and Computations
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59 |
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Section 2.12
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Taxes
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61 |
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Section 2.13
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Sharing of Payments, Etc. |
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63 |
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Section 2.14
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Use of Proceeds
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64 |
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Section 2.15
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Defaulting Lenders
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64 |
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Section 2.16
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Evidence of Debt
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67 |
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Section 2.17
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Cash Management
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67 |
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Section 2.18
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[Reserved]
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70 |
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Section 2.19
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[Reserved]
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70 |
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Section 2.20
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Replacement of Certain Lenders
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70 |
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ARTICLE III |
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CONDITIONS TO EFFECTIVENESS |
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Section 3.01
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Conditions Precedent to the Closing Date
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71 |
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Section 3.02
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Conditions Precedent to Each Borrowing and Each Issuance of a Letter of
Credit
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74 |
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Section 3.03
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Determinations Under Section 3.01
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75 |
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ARTICLE IV |
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REPRESENTATIONS AND WARRANTIES |
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Section 4.01
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Representations and Warranties of the Loan Parties
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75 |
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ARTICLE V |
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COVENANTS OF THE LOAN PARTIES |
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Section 5.01
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Affirmative Covenants
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80 |
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Section 5.02
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Negative Covenants
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85 |
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Section 5.03
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Reporting Requirements
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92 |
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Section 5.04
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Financial Covenant
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95 |
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Section 5.05
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Monthly Financial Statements and Minimum EBITDA During Syndication
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95 |
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ARTICLE VI |
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EVENTS OF DEFAULT |
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Section 6.01
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Events of Default
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96 |
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Section 6.02
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Actions in Respect of the Letters of Credit upon Default
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99 |
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ARTICLE VII |
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THE AGENTS |
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Section 7.01
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Appointment and Authorization of the Agents
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99 |
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Section 7.02
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Delegation of Duties
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100 |
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Section 7.03
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Liability of Agents
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101 |
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Section 7.04
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Reliance by Agents
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102 |
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Section 7.05
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Notice of Default
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102 |
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Section 7.06
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Credit Decision; Disclosure of Information by Agents
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102 |
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Section 7.07
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Indemnification of Agents
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103 |
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Section 7.08
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Agents in Their Individual Capacity
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103 |
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Section 7.09
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Successor Agent
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105 |
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Section 7.10
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Administrative Agent May File Proofs of Claim
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105 |
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Section 7.11
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Collateral and Guaranty Matters
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106 |
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Section 7.12
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Other Agents; Arrangers and Managers
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107 |
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ARTICLE VIII |
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SUBSIDIARY GUARANTY |
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Section 8.01
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Subsidiary Guaranty
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107 |
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Section 8.02
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Guaranty Absolute
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108 |
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Section 8.03
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Waivers and Acknowledgments
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109 |
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Section 8.04
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Subrogation
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109 |
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Section 8.05
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Additional Guarantors
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110 |
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Section 8.06
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Continuing Guarantee; Assignments
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110 |
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Section 8.07
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No Reliance
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111 |
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ARTICLE IX |
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[RESERVED] |
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ARTICLE X |
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MISCELLANEOUS |
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Section 10.01
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Amendments, Etc. |
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111 |
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Section 10.02
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Notices, Etc. |
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113 |
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Section 10.03
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No Waiver; Remedies
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115 |
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Section 10.04
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Costs, Fees and Expenses
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115 |
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Section 10.05
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Right of Set-off
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117 |
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Section 10.06
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Binding Effect
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117 |
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Section 10.07
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Successors and Assigns
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118 |
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Section 10.08
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Execution in Counterparts; Integration
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121 |
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Section 10.09
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Confidentiality; Press Releases, Related Matters and Treatment of
Information
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122 |
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Section 10.10
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Patriot Act Notice
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124 |
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Section 10.11
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Jurisdiction, Etc
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124 |
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Section 10.12
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Governing Law
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124 |
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Section 10.13
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Waiver of Jury Trial
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125 |
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SCHEDULES
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Schedule I
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β
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Commitments and Applicable Lending Offices |
Schedule II
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β
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Existing Accounts |
Schedule III
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β
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Affiliated Transactions |
Schedule V
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β
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Agreements with Negative Pledge Clauses |
Schedule VI
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β
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Concentration Limits |
Schedule VII
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β
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Excluded Real Property |
Schedule 1.01(a)
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β
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Existing Letters of Credit |
Schedule 1.01(b)
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β
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[Reserved] |
Schedule 1.01(c)
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β
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Surviving Debt |
Schedule 4.01
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β
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Equity Investments; Subsidiaries |
Schedule 4.01(i)
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β
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Disclosures |
Schedule 4.01(m)
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β
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Environmental Matters |
Schedule 4.01(r)
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β
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Owned Real Property |
Schedule 4.01(s)
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β
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Leased Real Property β Lessee |
Schedule 4.01(t)
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β
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Leased Real Property β Lessor |
Schedule 5.01(u)
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β
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Post-Closing Obligations |
Schedule 5.02(a)
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β
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Existing Liens |
Schedule 5.02(b)
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β
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Existing Debt |
Schedule 5.02(f)
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β
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Existing Investments |
Schedule 5.02(n)
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β
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Permitted Sales and Lease Backs |
EXHIBITS
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Exhibit A
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β
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Form of Revolving Credit Note |
Exhibit B
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β
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Form of Notice of Borrowing |
Exhibit C
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β
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Form of Assignment and Acceptance |
Exhibit D-1
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β
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Form of Opinion of Xxxxx Day |
Exhibit D-2
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β
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Form of Opinion of Xxxxxxxx, Loop & Xxxxxxxx, LLP |
Exhibit E
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β
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[Reserved] |
Exhibit F
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β
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[Reserved] |
Exhibit G
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β
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Form of Security Agreement |
Exhibit H
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β
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Form of Guaranty Supplement |
Exhibit I
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β
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Form of Borrowing Base Certificate |
Exhibit J
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β
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[Reserved] |
Exhibit K
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β
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Intercreditor Agreement |
Exhibit L
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β
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Form of Solvency Certificate |
Exhibit M
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β
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Form of Mortgage |
Exhibit N
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β
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Form of Opinion of Local Counsel |
REVOLVING CREDIT AND GUARANTY AGREEMENT (this β
Agreementβ) dated as of January 31,
2008 among XXXX HOLDING CORPORATION, a Delaware corporation (the β
Borrowerβ), and each of
the direct and indirect subsidiaries of the Borrower signatory hereto (each, a β
Guarantorβ,
and, collectively, together with any person that becomes a Guarantor hereunder pursuant to Section
8.05, the β
Guarantorsβ), the Initial Lenders (as hereinafter defined) and the other banks,
financial institutions and other institutional lenders party hereto (each, a βLenderβ, and
collectively with the Initial Lenders and any other person that becomes a Lender hereunder pursuant
to Section 10.07, the β
Lendersβ), Citicorp USA, Inc. (β
CUSAβ), as administrative
agent (or any successor appointed pursuant to Article VII, the β
Administrative Agentβ) for
the Lender Parties and the other Secured Parties (each as hereinafter defined), CUSA as collateral
agent (or any successor appointed pursuant to Article VII, the β
Collateral Agentβ) for the
Lender Parties and the other Secured Parties, Citigroup Global Markets, Inc. (β
CGMIβ) and
XXXXXX BROTHERS INC. (β
LBIβ) as joint lead arrangers (the β
Lead Arrangersβ), CGMI,
LBI and BARCLAYS CAPITAL, the investment banking division of Barclays Bank PLC
(β
Barclaysβ), as joint bookrunners (the β
Joint Bookrunnersβ), LBI, as syndication
agent (the β
Syndication Agentβ) and Barclays, as documentation agent (the
β
Documentation Agentβ).
(1) Xxxx Corporation, a Virginia corporation (β
Xxxx Corporationβ), and certain of its
subsidiaries (collectively, the β
Debtorsβ) are debtors and debtors-in-possession in jointly
administered cases, Case No. 06-10354 (BRL) (each a β
Caseβ and collectively, the
β
Casesβ) pending in the United States Bankruptcy Court for the Southern District of
New
York (the β
Bankruptcy Courtβ) under Chapter 11 of the U.S. Bankruptcy Code (11 U.S.C. §§
101 et seq.; the β
Bankruptcy Codeβ). The Debtors will be reorganized pursuant to the
Reorganization Plan (as hereinafter defined) and subject to the Confirmation Order (as hereinafter
defined).
(2) Pursuant to the Reorganization Plan, the Borrower, which is a newly formed Delaware
corporation created in accordance with the Plan Documents (as hereinafter defined), will acquire,
directly or indirectly, on the Plan Effective Date, substantially all of the assets and certain
liabilities owned by the Debtors immediately prior to the effectiveness of the Reorganization Plan
(the βXxxx Reorganizationβ). Following the consummation of the Xxxx Reorganization, Xxxx
Corporation will be merged with and into Xxxx Companies, LLC, a newly formed Virginia limited
liability company (βOld Xxxxβ) that will be owned by the Borrower, with Old Xxxx as the
surviving entity.
(3) In order to finance in part the distributions to be made under the Reorganization Plan, to
pay the fees and expenses associated therewith and for working capital and general corporate
purposes of the Borrower and its Subsidiaries (the βFinancing Requirementsβ), the Borrower
has requested that simultaneously with the consummation of the Reorganization Plan, the Lender
Parties extend credit to the Borrower under credit facilities comprising (a) a senior secured
first-lien asset based revolving credit facility in an aggregate principal amount of $650,000,000
and (b) a senior secured first-lien term facility, to be made
available to the Borrower on the date each Reorganization Plan becomes effective (the
βPlan Effective Dateβ).
(4) The Borrower intends to meet the balance of the Financing Requirements with the proceeds
of not less than $790,000,000 in preferred equity of the Borrower being issued to, among others,
Centerbridge Partners, L.P. (βCenterbridgeβ), pursuant to the Investment Agreement (the
βCenterbridge Investment Agreementβ) dated as of July 26, 2007 between Centerbridge and
Xxxx Corporation.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
βAccount Debtorβ means the Person obligated on an Account.
βAccountsβ has the meaning set forth in the UCC.
βACHβ means automated clearinghouse transfers.
βAccess Rights Agreementβ means that certain Access Rights Agreement by and between
Xxxx Corporation and General Motors Company dated on or about September 14, 2007, a copy of which
has been provided to the Administrative Agent prior to the Closing Date.
βAcquisitionβ means any transaction or series of related transactions for the purpose
of or resulting, directly or indirectly, in (i) the acquisition of all or substantially all of the
assets of any Person, or any business or division of any Person, (ii) the acquisition or ownership
of in excess of 50% of the Equity Interests in any Person, or (iii) the acquisition of another
Person by a merger, consolidation, amalgamation or any other combination with such Person.
βActivitiesβ has the meaning specified in Section 7.08.
βAdjustment Dateβ has the meaning specified in the definition of βApplicable Marginβ.
βAdministrative Agentβ has the meaning specified in the recital of parties to this
Agreement.
βAdministrative Agentβs Accountβ means the account of the Administrative Agent
maintained by the Administrative Agent with Citibank, N.A. and identified to the Borrower and the
Lender Parties from time to time.
2
βAdvanceβ means a Revolving Credit Advance, a Swing Line Advance or a Letter of Credit
Advance.
βAffiliateβ means, as to any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person or is a director or officer
of such Person. For purposes of this definition, the term βcontrolβ (including the terms
βcontrollingβ, βcontrolled byβ and βunder common control withβ) of a Person means the possession,
direct or indirect, of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of Voting Stock, by contract or otherwise.
βAffiliated Lenderβ has the meaning specified in the definition of βEligible
Assigneeβ.
βAgent Partiesβ has the meaning specified in Section 10.02(c).
βAgent-Related Personsβ means, the Agents, together with their respective Affiliates,
and the officers, directors, employees, agents and attorneys-in-fact of such Agents and Affiliates.
βAgent Concentration Accountβ has the meaning specified in Section 2.17(b).
βAgentsβ means the Administrative Agent, the Collateral Agent, the Syndication Agent,
the Documentation Agent and the Lead Arrangers.
βAgents Groupβ has the meaning specified in Section 7.08.
βAgreement Valueβ means, for each Hedge Agreement, on any date of determination, an
amount equal to: (a) in the case of a Hedge Agreement documented pursuant to the Master Agreement
(Multicurrency-Cross Border) published by the International Swap and Derivatives Association, Inc.
(the βMaster Agreementβ), the amount, if any, that would be payable by any Loan Party or any of its
Subsidiaries to its counterparty to such Hedge Agreement, as if (i) such Hedge Agreement was being
terminated early on such date of determination, (ii) such Loan Party or Subsidiary was the sole
βAffected Party,β and (iii) the Administrative Agent was the sole party determining such payment
amount (with the Administrative Agent making such determination pursuant to the provisions of the
form of Master Agreement); (b) in the case of a Hedge Agreement traded on an exchange, the
xxxx-to-market value of such Hedge Agreement, which will be the unrealized loss or gain on such
Hedge Agreement to the Loan Party or Subsidiary of a Loan Party to such Hedge Agreement based on
the settlement price of such Hedge Agreement on such date of determination; or (c) in all other
cases, the xxxx-to-market value of such Hedge Agreement, which will be the unrealized loss or gain
on such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party to such Hedge Agreement
determined as the amount, if any, by which (i) the present value of the future cash flows to be
paid by such Loan Party or Subsidiary exceeds (ii) the present value of the future cash flows to be
received by such Loan Party or Subsidiary pursuant to such Hedge Agreement; capitalized terms used
and not otherwise defined in this definition shall have the respective meanings set forth in the
above described Master Agreement.
3
βApplicable Lending Officeβ means, with respect to each Lender Party, such Lender
Partyβs Domestic Lending Office in the case of a Base Rate Advance and such Lender Partyβs
Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
βApplicable Marginβ means 2.00% per annum, in the case of Eurodollar Rate Advances,
and 1.00% per annum, in the case of Base Rate Advances; provided that on and after the
first Adjustment Date occurring after the completion of the first full Fiscal Quarter after the
Closing Date, the Applicable Margin will be the rate per annum as determined pursuant to the
pricing grid below based upon the average daily Availability for the most recently ended Fiscal
Quarter immediately preceding such Adjustment Date:
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Applicable Margin for |
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Applicable Margin for |
Availability |
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Eurodollar Advances |
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Base Rate Advances |
> $450,000,000
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2.00 |
% |
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1.00 |
% |
> $200,000,000 but
Β£ $450,000,000
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2.25 |
% |
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1.25 |
% |
Β£ $200,000,000
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2.50 |
% |
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1.50 |
% |
Any change in the Applicable Margin resulting from changes in average daily Availability shall
become effective on the date (the βAdjustment Dateβ) that is three Business Days after the
date on which the last Borrowing Base Certificate of any Fiscal Quarter is delivered to the Lenders
pursuant to Section 5.03(o) and shall remain in effect until the next change to be effected
pursuant to this paragraph. If any such Borrowing Base Certificate is not delivered within the
time period specified in Section 5.03(o), then, until the date that is three Business Days after
the date on which such Borrowing Base Certificate is delivered, the highest rate set forth in each
column of the above pricing grid shall apply.
In the event that at any time after the end of a Fiscal Quarter it is discovered that the
average daily Availability for such Fiscal Quarter used for the determination of the Applicable
Margin was less than the actual amount of the average daily Availability for such Fiscal Quarter,
the Applicable Margin for such prior Fiscal Quarter shall be adjusted to the applicable percentage
based on such actual average daily Availability for such Fiscal Quarter and any additional interest
for the applicable period payable as a result of such recalculation shall be promptly paid to
Lender Parties.
Notwithstanding the foregoing, upon the implementation of the default rate of interest
pursuant to Section 2.07(b) hereof, the Applicable Margin shall be the highest rate set forth in
each column of the above pricing grid.
The foregoing provisions of this definition of βApplicable Marginβ shall not be construed to
limit the rights of Lender Parties with respect to the amount of interest payable after a Default
or Event of Default whether based on such recalculated percentage or otherwise.
4
βAppropriate Lenderβ means, at any time, with respect to (a) the Revolving Credit
Facility, a Lender that has a Commitment or Advances outstanding, in each case with respect to or
under such Facility at such time, (b) the Letter of Credit Sublimit, (i) any Issuing Bank and (ii)
if the Revolving Credit Lenders have made Letter of Credit Advances pursuant to Section 2.03(c)
that are outstanding at such time, each such Revolving Credit Lender and (c) the Swing Line
Facility, (i) the Swing Line Lender and (ii) if the Revolving Credit Lenders have made Swing Line
Advances pursuant to Section 2.02(b) that are outstanding at such time, each Revolving Credit
Lender.
βApproved Fundβ means any Fund 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.
βAsset Saleβ means any sale, lease, transfer or other disposition of property or
series of related sales, leases, transfers or other dispositions of property, in each case,
constituting Revolving Facility Collateral by the Borrower and its Subsidiaries pursuant to clause
(ix) of Section 5.02(g) that yields Net Cash Proceeds to the Borrower and its Subsidiaries (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 $5,000,000 (provided that the aggregate amount of all net cash proceeds excluded
from the definition of βAsset Saleβ pursuant to the foregoing threshold shall not exceed an
aggregate amount of $25,000,000 in any Fiscal Year).
βAssignment and Acceptanceβ means an assignment and acceptance entered into by a
Lender Party and an Eligible Assignee, and accepted by the Administrative Agent, in accordance with
Section 10.07 and in substantially the form of Exhibit C hereto.
βAvailable Amountβ of any Letter of Credit means, at any time, the maximum amount
available to be drawn under such Letter of Credit at such time (assuming compliance at such time
with all conditions to drawing).
βAvailabilityβ means at any time the excess of (a) the Revolving Credit Availability
Amount at such time over (b) the sum of (i) the Revolving Credit Advances, Swing Line Advances and
Letter of Credit Advances outstanding at such time plus (ii) the aggregate Available Amount of all
Letters of Credit outstanding at such time.
βAvailability Deficiency Amountβ has the meaning specified in Section 2.06(b)(i).
βAvailability Threshold Amountβ means $75,000,000.
βBankruptcy Codeβ has the meaning specified in the Preliminary Statements.
β
Bankruptcy Courtβ has the meaning specified in the Preliminary Statements and means
the United States District Court for the Southern District of
New York when such court is
exercising direct jurisdiction over the Cases.
βBarclaysβ has the meaning specified in the recital of parties to this Agreement.
5
βBase Rateβ means a fluctuating interest rate per annum in effect from time to time,
which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by Citibank, N.A. in
New York,
New York, from time
to time, as Citibank N.A.βs base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no nearest 1/4 of 1%, to the
next higher 1/4 of 1%) of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by dividing (A) the
latest three week moving average of secondary market morning offering rates in the United States
for three month certificates of deposit of major United States money market banks, such three week
moving average (adjusted to the basis of a year of 360 days) being determined weekly on each Monday
(or, if such day is not a Business Day, on the next succeeding Business Day) for the three week
period ending on the previous Friday by Citibank N.A. on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve Bank of
New York or, if such
publication shall be suspended or terminated, on the basis of quotations for such rates received by
Citibank N.A. from three
New York certificate of deposit dealers of recognized standing selected by
Citibank N.A., by (B) a percentage equal to 100% minus the average of the daily percentages
specified during such three week period by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for Citibank N.A. with respect to
liabilities consisting of or including (among other liabilities) three month U.S. dollar non
personal time deposits in the United States, plus (iii) the average during such three week period
of the annual assessment rates estimated by Citibank N.A. for determining the then current annual
assessment payable by Citibank N.A. to the Federal Deposit Insurance Corporation (or any successor)
for insuring U.S. dollar deposits in the United States; and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
βBlocked Account Agreementβ has the meaning specified in Section 2.17(a)(ii).
βBorrowerβ has the meaning specified in the recital of parties to this Agreement.
βBorrowerβs Accountβ means the account of the Borrower maintained by the Borrower and
specified in writing to the Administrative Agent from time to time.
βBorrowingβ means a borrowing consisting of simultaneous Advances of the same Type
made by the Appropriate Lenders.
βBorrowing Base Certificateβ means a certificate in substantially the form of Exhibit
I hereto (with such changes therein as may be required by the Administrative Agent to reflect the
components of, and reserves against, the Borrowing Base as provided for hereunder from time to
time), executed and certified as accurate and complete by a Responsible Officer of the Borrower or
by the controller of the Borrower, which shall include detailed calculations as to the Borrowing
Base as reasonably requested by the Administrative Agent.
6
βBorrowing Base Deficiencyβ means, at any time, the failure of (a) the Borrowing Base
at such time to equal or exceed (b) the sum of (i) the aggregate principal amount of the Revolving
Credit Advances and Swing Line Advances outstanding at such time plus (ii) the aggregate Available
Amount under all Letters of Credit outstanding at such time.
β
Business Dayβ means a day of the year on which banks are not required or authorized
by law to close in
New York City and, if the applicable Business Day relates to any Eurodollar Rate
Advances, on which dealings are carried on in the London interbank market.
βCapital Expendituresβ means, for any Person for any period, the sum (without
duplication) of all expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for equipment, fixed assets, real property or improvements, or for
replacements or substitutions therefor or additions thereto, that have been or should be, in
accordance with GAAP, reflected as additions to property, plant or equipment on a Consolidated
balance sheet of such Person. For purposes of this definition, the purchase price of equipment
that is purchased simultaneously with the trade in of existing equipment or with insurance proceeds
shall be included in Capital Expenditures only to the extent of the gross amount of such purchase
price less the credit granted by the seller of such equipment for the equipment being traded in at
such time or the amount of such proceeds, as the case may be.
βCapitalized Leasesβ means all leases that have been or should be, in accordance with
GAAP, recorded as capitalized leases.
βCasesβ has the meaning specified in the Preliminary Statements.
βCash Control Trigger Eventβ means either (a) the occurrence and continuance of an
Event of Default or (b) the failure of the Loan Parties to maintain Availability of at least
$65,000,000 for five (5) consecutive Business Days. For purposes of this Agreement, the occurrence
of a Cash Control Trigger Event shall be deemed to be continuing (a) until such Event of Default
has been cured or waived and/or (b) if the Cash Control Trigger Event arises under clause (b)
above, until Availability is equal to or greater than the Availability Threshold Amount for thirty
(30) consecutive days, at which time a Cash Control Trigger Event shall no longer deemed to be
occurring for purposes of this Agreement.
βCash Equivalentsβ means any of the following, to the extent owned by any Loan Party
free and clear of all Liens other than Liens created under the Collateral Documents or claims or
Liens permitted pursuant to this Agreement and having a maturity of not greater than 12 months from
the date of issuance thereof: (a) readily marketable direct obligations of the Government of the
United States or any agency or instrumentality thereof or obligations unconditionally guaranteed by
the full faith and credit of the Government of the United States, (b) certificates of deposit of or
time deposits with any commercial bank that is a Lender Party or a member of the Federal Reserve
System that issues (or the parent of which issues) commercial paper rated as described in clause
(c), is organized under the laws of the United States or any state thereof and has combined capital
and surplus of at least $500,000,000, (c) commercial paper in an aggregate amount of no more than
$10,000,000 per issuer outstanding at any time, issued by any corporation organized under the laws
of any state of the United States and rated at least βPrime 1β (or the then equivalent grade) by
Xxxxxβx or βA 1β (or the then equivalent
7
grade) by S&P or (d) Investments, classified in accordance with GAAP, as current assets of the
Borrower or any of its Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by financial institutions that
have the highest rating obtainable from either Xxxxxβx or S&P, or (e) offshore overnight interest
bearing deposits in foreign branches of Citibank, N.A., any Lender Party or an Affiliate of a
Lender Party.
βCash Management Obligationsβ means all Obligations of any Loan Party owing to a
Lender Party (or a banking Affiliate of a Lender Party) in respect of any overdrafts and related
liabilities arising from treasury, depository and cash management services or in connection with
any ACH transfers of funds.
βCenterbridgeβ has the meaning specified in the Preliminary Statements.
βCenterbridge Investment Agreementβ has the meaning specified in the Preliminary
Statements.
βCFCβ means any (i) Foreign Subsidiary that is a βcontrolled foreign corporationβ
within the meaning of the Code section 957(a) and (ii) domestic Subsidiary the sole assets of which
consist of the Equity Interests of any Foreign Subsidiary that is a βcontrolled foreign
corporationβ within the meaning of the Code section 957(a).
βCGMIβ has the meaning specified in the recital of parties to this Agreement.
βChange of Controlβ means and shall be deemed to have occurred upon the occurrence of
any of the following events: (i) any Person or βgroupβ (within the meaning of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, and regulations promulgated thereunder), other than
Centerbridge or any of its Affiliates, shall have acquired beneficial ownership of more than 40% of
the outstanding Equity Interests in the Borrower and (ii) after the Closing Date, the occupation of
a majority of the seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were neither (A) nominated by the board of directors of the Borrower nor (B) appointed
by the directors so nominated.
βClosing Dateβ has the meaning specified in Section 3.01.
βCNAIβ means Citigroup North America, Inc.
βCollateralβ means all βCollateralβ referred to in the Collateral Documents and all
other property that is or is intended to be subject to any Lien in favor of the Administrative
Agent for the benefit of the Secured Parties.
βCollateral Agentβ has the meaning specified in the recital of parties to this
Agreement.
βCollateral Documentsβ means, collectively, the Security Agreement, the Intellectual
Property Security Agreement, the Mortgages and any other agreement that creates or purports to
create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.
8
βCommitmentβ means a Revolving Credit Commitment, a Swing Line Commitment or a Letter
of Credit Commitment.
βCommunicationsβ has the meaning specified in Section 10.02(b).
βCompany Material Adverse Effectβ means any change, effect, event or condition that
has had or could reasonably be expected to have a material adverse effect (a) on the business,
results of operations or financial condition of Xxxx Corporation and its Subsidiaries, taken as a
whole, or (b) that would prevent the Borrower from timely consummating the transactions
contemplated hereby in all material respects; provided, however, that the
definition of βCompany Material Adverse Effectβ does not include facts, circumstances, events,
changes, effects or occurrences (i) generally affecting the industry in which Xxxx Corporation and
its Subsidiaries or their customers operate, or the economy or the financial, credit or securities
markets, in the United States or other countries in which Xxxx Corporation or its Subsidiaries
operate, including effects on such industries, economy or markets resulting from any regulatory and
political conditions or developments in general, or any outbreak or escalation of hostilities,
declared or undeclared acts of war or terrorism (other than any of the foregoing that causes any
damage or destruction to or renders physically unusable or inaccessible any facility or property of
Xxxx Corporation or any of its Subsidiaries); (ii) reflecting or resulting from changes in law or
GAAP (or authoritative interpretations thereof); (iii) to the extent resulting from the
announcement of the New Equity Investment and the transactions contemplated thereby, including any
lawsuit related thereto or any loss or threatened loss of or adverse change or threatened adverse
change, in each case resulting there from, in the relationship of Xxxx Corporation or its
Subsidiaries with its customers, suppliers, employees or others; (iv) resulting from changes in the
market price or trading volume of Xxxx Corporation securities, provided that the exceptions in this
clause (iv) are strictly limited to any such change or failure in and of itself and will not
prevent or otherwise affect a determination that any fact, circumstance, event, change, effect or
occurrence underlying such change or such failure has resulted in, or contributed to a Company
Material Adverse Effect; (v) resulting from the suspension of trading in securities generally on
any U.S. national securities exchange; or (vi) resulting from changes in the pool of claims (as
such term is defined in Section 1.01(5) of the Bankruptcy Code); except to the extent that, with
respect to clauses (i) and (ii), the impact of such fact, circumstance, event, change, effect or
occurrence is disproportionately adverse to Xxxx Corporation and its Subsidiaries, taken as a
whole, as compared to other Persons engaged in the industries in which the Loan Parties compete.
βConcentration Accountβ means each deposit account, other than an Excluded Account,
maintained by a Loan Party in which funds of such Loan Party from one or more DDAs are
concentrated.
βConcentration Limitβ means, as to each Account Debtor set forth on Schedule VI, the
applicable percentage of Accounts owing from such Account Debtor.
βConfidential Informationβ means any and all material non-public information delivered
or made available by any Loan Party or any Subsidiary of a Loan Party relating to any Loan Party or
any Subsidiary thereof or their respective businesses, other than any such
XxxxβRevolving Credit and Guaranty Agreement
9
information that is or has been made available publicly by a Loan Party or any Subsidiary
thereof.
βConfidential Information Memorandumβ means the confidential information memorandum
that will be used by the Lead Arrangers in connection with the syndication of the Commitments.
βConfirmation Orderβ shall have the meaning specified in Section 3.01(a).
βConsolidatedβ refers to the consolidation of accounts in accordance with GAAP.
βConsolidated Fixed Charge Coverage Ratioβ means, as of the last day of any Fiscal
Quarter, with respect to the Borrower and its Subsidiaries for the period of four consecutive
Fiscal Quarters most recently ended on or prior to such date, taken as one accounting period, the
ratio of (a)(i) EBITDA for such period minus (ii) the unfinanced portion of all Capital
Expenditures during such period to (b) the sum of (i) Debt Service Charges payable during such
period plus (ii) the amount (positive or negative) of federal, state and foreign income
taxes payable (less taxes receivable in cash with respect to such period, plus (iii) any
payments made in cash during such period in reliance on Section 5.02(d), all as determined on a
Consolidated basis in accordance with GAAP.
βConsolidated Interest Expenseβ means, with respect to the Borrower and its
Subsidiaries for any period, total interest expense (including that attributable to Capitalized
Leases in accordance with GAAP) with respect to all outstanding Debt, including, without
limitation, the Obligations owed with respect thereto, but excluding (i) any interest not currently
payable in cash with respect to such period and (ii) any non-cash amortization or write-down of any
deferred financing fees or amortization of original issue discount of any Debt, all as determined
on a Consolidated basis in accordance with GAAP. For purposes of the foregoing, interest expense
of the Borrower and its Subsidiaries shall be determined after giving effect to any net payments
made or received by the Borrower and its Subsidiaries with respect to interest rate Hedging
Agreements.
βConversionβ, βConvertβ and βConvertedβ each refers to the conversion
of Advances from one Type to Advances of the other Type.
βCredit Card Programβ means the (i) Citibank Business Card Purchasing Card Agreement,
dated August 31, 1994, between Citibank (South Dakota), N.A. and Xxxx Corporation, (ii) Citibank
Purchasing Card Agreement, dated January 18, 2005, between Citibank International plc and Xxxx
Corporation, and (iii) Citibank Corporate Card Agreement, dated January 24, 2005, between Citibank
International plc and Xxxx Corporation, each as amended, restated, or otherwise modified from time
to time, or any replacement of any of the foregoing or any additional credit card programs for the
same or substantially similar purposes; provided that the aggregate principal amount of
Debt outstanding with respect to clauses (i), (ii) and (iii) shall not exceed $25,000,000.
βCUSAβ has the meaning specified in the recital of parties to this Agreement.
XxxxβRevolving Credit and Guaranty Agreement
10
βDana Reorganizationβ has the meaning specified in the Preliminary Statements to this
Agreement.
βDCCβ means Xxxx Credit Corporation, a Delaware corporation.
βDCC Entityβ means DCC or any of its Subsidiaries.
βDDAsβ means any checking or other demand deposit account maintained by a Loan Party.
βDebtβ of any Person means, without duplication, (a) all indebtedness of such Person
for borrowed money, (b) all indebtedness of such Person for the deferred purchase price of property
or services (other than trade payables incurred in the ordinary course of such Personβs business),
(c) all obligations of such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all indebtedness of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations of such Person as lessee
under Capitalized Leases, (f) all reimbursement obligations, whether contingent or otherwise, of
such Person under acceptance, letter of credit or similar facilities, (g) all mandatory obligations
of such Person to purchase, redeem, retire, defease or otherwise make any payment in cash in
respect of any Equity Interests in such Person or any other Person or any warrants, rights or
options to acquire such Equity Interests, valued, in the case of Redeemable Preferred Interests, at
the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends, (h) all obligations of such Person in respect of Hedge Agreements, valued at the
Agreement Value thereof, (i) all Guarantee Obligations and Synthetic Debt of such Person and (j)
all indebtedness and other payment Obligations referred to in clauses (a) through (i) above of
another Person secured by (or for which the holder of such Debt has an existing right, contingent
or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not assumed or become liable for
the payment of such indebtedness or other payment Obligations. The amount of any Debt related to
clause (j) above shall be deemed to be equal to the lesser of (a) the amount of such Debt so
secured or (b) the fair market value of the property subject to such Lien.
βDebtor Relief Lawsβ means the Bankruptcy Code and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief laws of the United States or
other applicable jurisdictions from time to time in effect and affecting the rights of creditors
generally.
βDebt Service Chargesβ means, with respect to the Borrower and its Subsidiaries for
any period, the sum of (a) Consolidated Interest Expense, for such period, plus (b) scheduled
principal payments made or required to be made (after giving effect to any prepayments paid in cash
that reduce the amount of such required payments) on account of Debt (including, without
limitation, obligations under Capitalized Leases) for such period, plus (c) scheduled mandatory
payments on account of Disqualified Capital Stock (whether in the nature of dividends,
XxxxβRevolving Credit and Guaranty Agreement
11
redemption, repurchase or otherwise) required to be made during such period, in each case
determined in accordance with GAAP; minus (d) Interest Income.
βDefaultβ means any Event of Default or any event that would constitute an Event of
Default but for the requirement that notice be given or time elapse or both.
βDefaulted Advanceβ means, with respect to any Lender at any time, the portion of any
Advance required to be made by such Lender to the Borrower pursuant to Section 2.01 or 2.02 at or
prior to such time which has not been made by such Lender or by the Administrative Agent for the
account of such Lender pursuant to Section 2.02(e) as of such time. In the event that a portion of
a Defaulted Advance shall be deemed made pursuant to Section 2.15(a), the remaining portion of such
Defaulted Advance shall be considered a Defaulted Advance originally required to be made pursuant
to Section 2.01 on the same date as the Defaulted Advance so deemed made in part.
βDefaulted Amountβ means, with respect to any Lender Party at any time, any amount
required to be paid by such Lender Party to the Administrative Agent or any other Lender Party
hereunder or under any other Loan Document at or prior to such time which has not been so paid as
of such time, including, without limitation, any amount required to be paid by such Lender Party to
(a) the Swing Line Lender pursuant to Section 2.02(b) to purchase a portion of the Swing Line
Advance made by the Swing Line Lender, (b) any Issuing Bank pursuant to Section 2.03(d) to purchase
a portion of a Letter of Credit Advance made by such Issuing Bank, (c) the Administrative Agent
pursuant to Section 2.02(e) to reimburse the Administrative Agent for the amount of any Advance
made by the Administrative Agent for the account of such Lender Party, (d) any other Lender Party
pursuant to Section 2.13 to purchase any participation in Advances owing to such other Lender Party
and (e) the Administrative Agent or any Issuing Bank pursuant to Section 7.07 to reimburse the
Administrative Agent or such Issuing Bank for such Lender Partyβs ratable share of any amount
required to be paid by the Lender Parties to the Administrative Agent or such Issuing Bank as
provided therein. In the event that a portion of a Defaulted Amount shall be deemed paid pursuant
to Section 2.15(b), the remaining portion of such Defaulted Amount shall be considered a Defaulted
Amount originally required to be paid hereunder or under any other Loan Document on the same date
as the Defaulted Amount so deemed paid in part.
βDefaulting Lenderβ means, at any time, any Lender Party that, at such time, (a) owes
a Defaulted Advance or a Defaulted Amount or (b) shall take any action or be the subject of any
action or proceeding under any Debtor Relief Law.
βDIP Credit Agreementβ means the Amended and Restated Senior Secured Superpriority
Debtor in Possession Credit Agreement dated as of April 13, 2006, as amended by Amendment No. 1
dated as of January 25, 2007, among Xxxx Corporation, as borrower, the guarantors party thereto,
Citicorp North America, Inc., as administrative agent, and the lenders party thereto.
βDisbursement Accountβ has the meaning specified in Section 2.17(e).
XxxxβRevolving Credit and Guaranty Agreement
12
βDisqualified Capital Stockβ means any Equity Interest which, by its terms (or by the
terms of any security into which it is convertible or for which it is exchangeable), or upon the
happening of any event, (a) is mandatorily redeemable in whole or in part prior to the Maturity
Date, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, (b) is convertible into or exchangeable (unless at the sole
option of the issuer thereof) for Debt or any Equity Interest referred to in (a) above prior to the
Maturity Date, or (c) contains any mandatory repurchase obligation which comes into effect prior to
the Maturity Date, provided that any Equity Interest that would not constitute Disqualified
Capital Stock but for provisions thereof giving holders thereof (or the holders of any security
into or for which such Equity Interest is convertible, exchangeable or exercisable) the right to
require the issuer thereof to redeem such Equity Interest upon the occurrence of a Change of
Control shall not constitute Disqualified Capital Stock.
βDocumentation Agentβ has the meaning specified in the recital of parties to this
Agreement.
βDollarβ means the lawful currency of the United States.
βDomestic Lending Officeβ means, with respect to any Lender Party, the office of such
Lender Party specified as its βDomestic Lending Officeβ opposite its name on Schedule I hereto or
in the Assignment and Acceptance pursuant to which it became a Lender Party, as the case may be, or
such other office of such Lender Party as such Lender Party may from time to time specify to the
Borrower and the Administrative Agent.
βXxxx Xxxxβ means Dongfeng Xxxx Axle Company Limited (Business License Registration
Number 4206001351648), a Sino-foreign joint venture enterprise with limited liability duly formed
under the laws of the Peoples Republic of China, with its legal address at 10th Floor, Torch
Building, Hi-Tech Industry Development Zone, Xiangfan Municipality, Hubei Province, PRC. Pursuant
to that certain Sale and Asset Purchase Agreement, dated as of March 10, 2005, as amended March 14,
2007, the equity of Xxxx Xxxx is owned by Dongfeng Motor Co., Ltd (75.23%), Dongfeng (Shiyan)
Industrial Company (10.96%), Dongfeng Motor Corporation (9.81%) and Xxxx Mauritius (4%).
βEarn-Out Obligationsβ means purchase price adjustments, earnouts and similar
obligations, in each case, with respect to any Permitted Acquisition.
βEBITDAβ means, for any period, without duplication (a) the sum, determined on a
Consolidated basis, of (i) net income (or net loss), (ii) interest expense and facility fees,
unused commitment fees, letter of credit fees and similar fees, (iii) income tax expense, (iv)
depreciation expense, (v) amortization expense, (vi) non recurring, transactional or unusual losses
deducted in calculating net income less non recurring, transactional or unusual gains added in
calculating net income, (vii) in each case without duplication, cash Restructuring Charges to the
extent deducted in computing net income for such period and settled or to be settled in cash during
such period in an aggregate amount not to exceed $100,000,000 in Fiscal Year 2008, an amount not to
exceed $50,000,000 in the aggregate in any other Fiscal Year and an amount not to exceed
$170,000,000 in the aggregate during the term of this Agreement, in each case of the Borrower and
its Subsidiaries, determined in accordance with GAAP for such period, (viii) non-xxxx
XxxxβRevolving Credit and Guaranty Agreement
13
Restructuring Charges and related non-cash losses or other non-cash charges resulting from the
writedown in the valuation of any assets, in each case of the Borrower and its Subsidiaries,
determined in accordance with GAAP for such period, (ix) without duplication, net losses from
discontinued operations, (x) amounts associated with stock options or restricted stock expense,
(xi) minority interest expense, (xii) losses or expenses associated with the Agreement Value of
Hedge Agreements, and (xiii) post-emergence costs associated with the continued cost of the
Reorganization Plan in an aggregate amount not to exceed $20,000,000 in Fiscal Year 2008 and not to
exceed $5,000,000 in any other Fiscal Year, (xiv) non-cash currency losses on intercompany loans or
advances, and (xv) losses of affiliates accounted for on an equity basis; minus (b) (i) net
income from discontinued operations, (ii) earnings of affiliates accounted for on an equity basis,
(iii) interest income, (iv) any income or gain associated with the Agreement Value of Hedge
Agreements, and (v) non-cash currency income or gains on intercompany loans or advances.
βEligible Assigneeβ means with respect to any Facility (other than the Letter of
Credit Facility), (i) a Lender Party; (ii) an Affiliate of a Lender Party; (iii) an Approved Fund;
and (iv) any other Person (other than an individual) approved by (x) the Administrative Agent, (y)
in the case of an assignment of a Revolving Credit Commitment, each Issuing Bank (except in the
case of an assignment by an Initial Lender during the primary syndication of the Revolving Credit
Facility) and (z) solely in the case of the Revolving Credit Facility, unless an Event of Default
has occurred and is continuing, and except in the case of an assignment by an Initial Lender during
the primary syndication of the Revolving Credit Facility, the Borrower (each such approval not to
be unreasonably withheld or delayed); provided, however, that no Loan Party (or any
Affiliate of a Loan Party) shall qualify as an Eligible Assignee under this definition.
Notwithstanding the foregoing, assignments to an Affiliate of a Loan Party shall be permitted so
long as (A) the aggregate amount of Commitments of such assignee immediately after giving effect to
such assignment is less than 10% of the then outstanding aggregate principal amount of Advances and
(B) such assignee agrees in writing not to exercise any of the rights and obligations afforded to
an Eligible Assignee pursuant to Section 10.01 (any such assignee being referred to herein as an
βAffiliated Lenderβ).
βEligible Inventoryβ means, at the time of any determination thereof, without
duplication, the Inventory Value of the Loan Parties at such time that is not ineligible for
inclusion in the calculation of the Borrowing Base pursuant to any of clauses (a) through (o)
below. Criteria and eligibility standards used in determining Eligible Inventory may be fixed and
revised from time to time by the Administrative Agent in its reasonable discretion. Unless
otherwise from time to time approved in writing by the Administrative Agent, no Inventory shall be
deemed Eligible Inventory if, without duplication:
(a) a Loan Party does not have good, valid and unencumbered title thereto, subject only to
Liens permitted under clause (i), (ii) or (iv) of the definition of Permitted Liens (βPermitted
Collateral Liensβ); or
(b) it is not located in the United States or Mexico; provided that in the case of
Inventory located in Mexico, the Borrower provides evidence satisfactory to the Administrative
Agent that there is an enforceable, perfected security interest under the laws of the applicable
foreign jurisdiction in such Inventory in favor of the Administrative Agent (or
XxxxβRevolving Credit and Guaranty Agreement
14
Collateral Agent); provided further that Availability in respect of Inventory located in
Mexico shall be limited to an aggregate amount up to $50,000,000; or
(c) it is either (i) not located on property owned by a Loan Party or (ii) located at a third
party processor or (except in the case of consigned Inventory, which is covered by clause (f)
below) in another location not owned by a Loan Party (it being understood that the Borrower will
provide its best estimate of the value of such Inventory to be agreed to by the Administrative
Agent and reflected in the Borrowing Base Certificate), and either (A) is not covered by a Landlord
Lien Waiver, (B) a Rent Reserve has not been taken with respect to such Inventory or, in the case
of any third party processor, a Reserve has not been taken by the Administrative Agent in the
exercise of its reasonable discretion or (C) is not subject to an enforceable agreement in form and
substance reasonably satisfactory to the Administrative Agent pursuant to which the relevant Loan
Party has validly assigned its access rights to such Inventory and property to the Administrative
Agent; or
(d) it is operating supplies, labels, packaging or shipping materials, cartons, repair parts,
labels or miscellaneous spare parts, nonproductive stores inventory and other such materials, in
each case not considered used for sale in the ordinary course of business of the Loan Parties by
the Administrative Agent in its reasonable discretion from time to time; or
(e) it is not subject to a valid and perfected first priority Lien in favor of the
Administrative Agent (or Collateral Agent) subject only to Permitted Collateral Liens; or
(f) it is consigned at a customer, supplier or contractor location but still accounted for in
the Loan Partyβs inventory balance; or
(g) it is Inventory that is in-transit to or from a location not leased or owned by a Loan
Party (it being understood that the Borrower will provide its best estimate of the value of all
such Inventory, which estimate is to be reflected in the Borrowing Base Certificate) other than any
such in-transit Inventory from a Foreign Subsidiary to a Loan Party that is physically in-transit
within the United States and as to which a Reserve has been taken by the Administrative Agent in
the exercise of its reasonable discretion; or
(h) it is obsolete, slow-moving, nonconforming or unmerchantable or is identified as a
write-off, overstock or excess by a Loan Party, or does not otherwise conform to the
representations and warranties contained in this Agreement and the other Loan Documents applicable
to Inventory; or
(i) it is Inventory used as a sample or prototype, display or display item; or
(j) to the extent of any portion of Inventory Value thereof attributable to intercompany
profit among Loan Parties or their Affiliates (it being understood that the Borrower will provide
its best estimate of the value of such Inventory Value to be agreed by the Administrative Agent and
reflected in the most recent Borrowing Base Certificate); or
(k) any Inventory that is damaged, defective or marked for return to vendor, has been deemed
by a Loan Party to require rework or is being held for quality control purposes; or
XxxxβRevolving Credit and Guaranty Agreement
15
(l) such Inventory does not meet all material applicable standards imposed by any Governmental
Authority having regulatory authority over it; or
(m) any Inventory consisting of tooling the costs for which are capitalized by the Borrower
and its Subsidiaries; or
(n) any Inventory as to which the Borrower takes an unrecorded book to physical inventory
reduction based on its most recent physical inventory or cycle counts to the extent of such
reduction or as otherwise determined by the Administrative Agent in its reasonable discretion; or
(o) any Inventory as to which the Borrower takes a revaluation reserve whereby favorable
variances shall be deducted from Eligible Inventory and unfavorable variances shall not be added to
Eligible Inventory.
βEligible Receivablesβ means, at the time of any determination thereof, each Account
of each Loan Party that satisfies the following criteria: such Account (i) has been invoiced to,
and represents the bona fide amounts due to a Loan Party from, the purchaser of goods or services,
in each case originated in the ordinary course of business of such Loan Party and (ii) is not
ineligible for inclusion in the calculation of the Borrowing Base pursuant to any of clauses (a)
through (s) below. In determining the amount to be so included, the face amount of an Account
shall be reduced by, without duplication, to the extent not reflected in such face amount, (A) the
amount of all accrued and actual discounts, claims, credits or credits pending, promotional program
allowances, price adjustments, finance charges or other allowances (including any amount that a
Loan Party may be obligated to rebate to a customer pursuant to the terms of any written agreement
or understanding), (B) the aggregate amount of all limits and deductions provided for in this
definition and elsewhere in this Agreement, if any, and (C) the aggregate amount of all cash
received in respect of such Account but not yet applied by a Loan Party to reduce the amount of
such Account. Criteria and eligibility standards used in determining Eligible Receivables may be
fixed and revised from time to time by the Administrative Agent in its reasonable discretion.
Unless otherwise approved from time to time in writing by the Administrative Agent, no Account
shall be an Eligible Receivable if, without duplication:
(a) (i) a Loan Party does not have sole lawful and absolute title to such Account (subject
only to Liens permitted under clause (ii) or (iv) of the definition of Permitted Liens) or (ii) the
goods sold with respect to such Account have been sold under a purchase order or pursuant to the
terms of a contract or other written agreement or understanding that indicates that any Person
other than a Loan Party has or has purported to have an ownership interest in such goods; or
(b) (i) it is unpaid more than 90 days from the original date of invoice or 60 days from the
original due date or (ii) it has been written off the books of a Loan Party or has been otherwise
designated on such books as uncollectible; or
(c) more than 50% in face amount of all Accounts of the same Account Debtor are ineligible
pursuant to clause (b) above; or
XxxxβRevolving Credit and Guaranty Agreement
16
(d) the Account Debtor is insolvent or the subject of any bankruptcy case or insolvency
proceeding of any kind (other than postpetition accounts payable of an Account Debtor that is a
debtor-in-possession under the Bankruptcy Code and reasonably acceptable to the Administrative
Agent); or
(e) (i) the Account is not payable in Dollars or Canadian Dollars or other currency as to
which a Reserve has been taken by the Administrative Agent in the exercise of its reasonable
discretion or (ii) the Account Debtor is either not organized under the laws of the United States
of America, any state thereof, or the District of Columbia, or Canada or any province thereof or is
located outside or has its principal place of business or substantially all of its assets outside
the United States or Canada, unless, in each case, either (A) such Account is supported by a letter
of credit from an institution and in form and substance satisfactory to the Administrative Agent in
its sole discretion or (B) the Borrower provides evidence satisfactory to the Administrative Agent
that there is an enforceable, perfected security interest under the laws of the applicable foreign
jurisdiction in such Account in favor of the Administrative Agent; or
(f) the Account Debtor is the United States of America or any department, agency or
instrumentality thereof, unless the relevant Loan Party duly assigns its rights to payment of such
Account to the Administrative Agent pursuant to the Assignment of Claims Act of 1940, as amended,
which assignment and related documents and filings shall be in form and substance reasonably
satisfactory to the Administrative Agent; or
(g) the Account is subject to any security deposit (to the extent received from the applicable
Account Debtor), progress payment, retainage or other similar advance made by or for the benefit of
the applicable Account Debtor, in each case to the extent thereof; or
(h) (i) it is not subject to a valid and perfected first priority Lien in favor of the
Administrative Agent (or Collateral Agent), subject to no other Liens other than Liens permitted by
this Agreement or (ii) it does not otherwise conform in all material respects to the
representations and warranties contained in this Agreement and the other Loan Documents relating to
Accounts; or
(i) (i) such Account was invoiced in advance of goods or services provided, (ii) such Account
was invoiced twice or more, or (iii) the associated revenue has not been earned; or
(j) the sale to the Account Debtor is on a xxxx-and-hold, guaranteed sale, sale-and-return,
ship-and-return, sale on approval or consignment or other similar basis or made pursuant to any
other agreement providing for repurchases or return of any merchandise which has been claimed to be
defective or otherwise unsatisfactory; or
(k) the goods giving rise to such Account have not been shipped and/or title has not been
transferred to the Account Debtor, or the Account represents a progress-billing or otherwise does
not represent a complete sale; for purposes hereof, βprogress-billingβ means any invoice for goods
sold or leased or services rendered under a contract or agreement pursuant to which the Account
Debtorβs obligation to pay such invoice is conditioned upon the completion by a Loan Party of any
further performance under the contract or agreement; or
XxxxβRevolving Credit and Guaranty Agreement
17
(l) it arises out of a sale made by a Loan Party to an employee, officer, agent, director,
Subsidiary or Affiliate of a Loan Party; or
(m) such Account was not paid in full, and a Loan Party created a new receivable for the
unpaid portion of the Account, and other Accounts constituting chargebacks, debit memos and other
adjustments for unauthorized deductions; or
(n) (A) the Account Debtor (i) has or has asserted a right of set-off, offset, deduction,
defense, dispute, or counterclaim against a Loan Party (unless such Account Debtor has entered into
a written agreement reasonably satisfactory to the Administrative Agent to waive such set-off,
offset, deduction, defense, dispute, or counterclaim rights), (ii) has disputed its liability
(whether by chargeback or otherwise) or made any claim with respect to the Account or any other
Account of a Loan Party which has not been resolved, in each case of clause (i) and (ii), without
duplication, only to the extent of the amount of such actual or asserted right of set-off, or the
amount of such dispute or claim, as the case may be or (iii) is also a creditor or supplier of the
Loan Party (but only to the extent of such Loan Partyβs obligations to such Account Debtor from
time to time) or (B) the Account is contingent in any respect or for any reason; or
(o) the Account does not comply in all material respects with the requirements of all
applicable laws and regulations, whether Federal, state or local, including without limitation, the
Federal Consumer Credit Protection Act, Federal Truth in Lending Act and Regulation Z; or
(p) as to any Account, to the extent that (i) a check, promissory note, draft, trade
acceptance or other instrument for the payment of money has been received, presented for payment
and returned uncollected for any reason or (ii) such Account is otherwise classified as a note
receivable and the obligation with respect thereto is evidenced by a promissory note or other debt
instrument or agreement; or
(q) the Account is created on cash on delivery terms, or on extended terms and is due and
payable more than 90 days from the invoice date; or
(r) the Account represents tooling receivables related to tooling that has not been completed
or received by a Loan Party and approved and accepted by the applicable customer; or
(s) Accounts designated by a Loan Party as convenience accounts.
Notwithstanding the forgoing, all Accounts of any single Account Debtor and its Affiliates
which, in the aggregate, exceed (i) in respect of any Account Debtor, 20% of all Eligible
Receivables or (ii) as to any Account Debtor set forth on Schedule VI, the Concentration Limit
(provided that the Concentration Limit with respect to Eligible Receivables owing from Ford Motor
Company shall be 33%). In addition, in determining the aggregate amount from the same Account
Debtor that is unpaid more than 90 days from the date of invoice or more than 60 days from the due
date pursuant to clause (b) above there shall be excluded the amount of any net credit balances
relating to Accounts due from an Account Debtor with invoice dates more than 90 days from the date
of invoice or more than 60 days from the due date.
XxxxβRevolving Credit and Guaranty Agreement
18
βEnvironmental Actionβ means any action, suit, written demand, demand letter, written
claim, written notice of noncompliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in any way to any
Environmental Law, any Environmental Permit, any Hazardous Material, or arising from alleged injury
or threat to public or employee health or safety, as such relates to the actual or alleged exposure
to Hazardous Material, or to the environment, including, without limitation, (a) by any
governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other
actions or damages and (b) by any governmental or regulatory authority or third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive relief.
βEnvironmental Lawβ means any applicable federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, writ, judgment, injunction or decree, or judicial or
agency interpretation, relating to pollution or protection of the environment, public or employee
health or safety, as such relates to the actual or alleged exposure to Hazardous Material, or
natural resources, including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.
βEnvironmental Permitβ means any permit, approval, identification number, license or
other authorization required under any Environmental Law.
βEquipmentβ has the meaning specified in the UCC.
βEquity Interestsβ means, with respect to any Person, shares of capital stock of (or
other ownership or profit interests in) such Person, warrants, options or other rights for the
purchase or other acquisition from such Person of shares of capital stock of (or other ownership or
profit interests in) such Person, securities convertible into or exchangeable for shares of capital
stock of (or other ownership or profit interests in) such Person or warrants, rights or options for
the purchase or other acquisition from such Person of such shares (or such other interests), and
other ownership or profit interests in such Person (including, without limitation, partnership,
member or trust interests therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized on any date of determination.
βERISAβ means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
βERISA Affiliateβ means any Person that for purposes of Title IV of ERISA is a member
of the controlled group of any Loan Party (other than an Excluded Subsidiary), or under common
control with any Loan Party (other than an Excluded Subsidiary), within the meaning of Section
414(b), (c), (m) or (o) of the Internal Revenue Code.
βERISA Eventβ means (a) (i) the occurrence of a reportable event, within the meaning
of Section 4043 of ERISA, with respect to any ERISA Plan unless the 30 day notice requirement with
respect to such event has been waived by the PBGC or (ii) the requirements of subSection (1) of
Section 4043(b) of ERISA (without regard to subSection (2) of such Section) are met with respect to
a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of an
XxxxβRevolving Credit and Guaranty Agreement
19
ERISA Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section
4043(c) of ERISA is reasonably expected to occur with respect to such ERISA Plan within the
following 30 days; (b) the application for a minimum funding waiver with respect to an ERISA Plan;
(c) the provision by the administrator of any ERISA Plan of a notice of intent to terminate such
ERISA Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a
plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a
facility of any Loan Party or any ERISA Affiliate in the circumstances described in Section 4062(e)
of ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a Multiple Employer Plan
during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (f) the conditions for imposition of a lien under Section 303(k) of ERISA shall have been
met with respect to any ERISA Plan; (g) the adoption of an amendment to an ERISA Plan requiring the
provision of security to such ERISA Plan pursuant to Section 307 of ERISA; or (h) the institution
by the PBGC of proceedings to terminate an ERISA Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds
for the termination of, or the appointment of a trustee to administer, such ERISA Plan.
βERISA Planβ means a Single Employer Plan or a Multiple Employer Plan.
βEuroβ means the single currency of Participating Member States of the European Union.
βEurodollar Lending Officeβ means, with respect to any Lender Party, the office of
such Lender Party specified as its βEurodollar Lending Officeβ opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which it became a Lender Party, as the case
may be, or such other office of such Lender Party as such Lender Party may from time to time
specify to the Borrower and the Administrative Agent.
βEurodollar Rateβ means, for any Interest Period for all Eurodollar Rate Advances
comprising part of the same Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) appearing on Reuters Screen LIBOR01 (or any successor page) as the London interbank offered
rate for deposits in U.S. dollars at 11:00 A.M. (London time) two Business Days before the first
day of such Interest Period for a period equal to such Interest Period (provided that, if
for any reason such rate is not available, the term βEurodollar Rateβ means, for any Interest
Period for all Eurodollar Rate Advances comprising part of the same Borrowing, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page
as the London interbank offered rate for deposits in Dollars at approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such Interest Period for a term comparable to
such Interest Period); provided, however, if more than one rate is specified on
Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of all such rates) by
(b) a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such Interest
Period; notwithstanding the calculation of Eurodollar Rate set forth herein, for all purposes set
forth in the Loan Documents, except for purposes of determining Consolidated Interest Expense for
the Calculation of Debt Service Charge, for the first twenty-four months immediately following the
Closing Date the applicable Eurodollar Rate shall be no less than 3.00%.
XxxxβRevolving Credit and Guaranty Agreement
20
βEurodollar Rate Advanceβ means an Advance that bears interest as provided in Section
2.07(a)(ii).
β
Eurodollar Rate Reserve Percentageβ for any Interest Period for all Eurodollar Rate
Advances comprising part of the same Borrowing means the reserve percentage applicable two Business
Days before the first day of such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect
to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference to which the interest rate on
Eurodollar Rate Advances is determined) having a term equal to such Interest Period.
βEuropean Subsidiariesβ means the European subsidiaries of the Borrower party to the
Existing Receivables Facility, whether now existing or hereafter formed.
βEvents of Defaultβ has the meaning specified in Section 6.01.
βExcluded Accountβ means (i) any deposit or concentration accounts funded in the
ordinary course of business, the deposits in which shall not aggregate more than $5,000,000 or
exceed $1,000,000 with respect to any one account (or in each case, such greater amounts to which
the Administrative Agent may reasonably agree), (ii) any payroll, trust and tax withholding
accounts funded in the ordinary course of business or required by Applicable Law or (iii) any
Disbursement Account.
βExcluded Earn-Out Obligationsβ means Earn-Out Obligations (a) incurred in connection
with any Permitted Acquisition in an amount which, taken together with all existing Earn-Out
Obligations, does not exceed 25% of the future EBITDA attributable to such acquired Person or
Persons determined after giving effect to such Permitted Acquisition and (b) subject to terms
pursuant to which payments in respect thereof during the occurrence and continuance of an Event of
Default may accrue, but shall not be payable in cash during such period, but may be payable in cash
upon the cure or waiver of such Event of Default.
βExcluded Real Propertyβ means each parcel of real property set forth on Schedule VII.
βExcluded Subsidiariesβ means each DCC Entity and Old Xxxx and each of its
Subsidiaries following the consummation of the Xxxx Reorganization.
βExisting Accountsβ means the cash concentration accounts and other deposit accounts
of the Loan Parties set forth on Schedule II.
βExisting Debtβ means Debt of each Loan Party and its Subsidiaries outstanding
immediately before the occurrence of the Closing Date.
βExisting Letters of Creditβ means each Letter of Credit issued under the DIP Credit
Agreement prior to the Closing Date and listed on Schedule 1.01(a), which Letters of
XxxxβRevolving Credit and Guaranty Agreement
21
Credit are to be migrated from the DIP Credit Agreement to the Revolving Credit Facility and
shall be deemed to be obligations of the Borrower.
βExisting Receivables Facilityβ means the sale and securitization of certain Accounts
of the European Subsidiaries pursuant to the (a) a Receivables Loan Agreement, dated as of July 18,
2007, between Xxxx Europe Financing (Ireland) Limited, a limited liability company organized under
the laws of Ireland as a special purpose entity to purchase the transferred receivables, and GE
Leveraged Loans Limited that provides for a five-year accounts receivable securitization facility
under which β¬170 million in financing will be available to those European Subsidiaries, and (b)
receivables purchase agreements and related agreements, as applicable, pursuant to which the
European Subsidiaries, directly or indirectly, sell certain accounts receivables to Xxxx Europe
Financing (Ireland) Limited.
βFacilityβ means the Revolving Credit Facility, the Swing Line Facility or the Letter
of Credit Sublimit.
β
Federal Funds Rateβ means, for any period, a fluctuating interest rate per annum
equal for each day during such period to 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 for such day (or, if such day is not a Business Day, for the next preceding 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 such day for such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing selected by it.
βFee Letterβ means the fee letter dated November 27, 2007 among the Borrower, the
Initial Lenders and the Lead Arrangers, as amended.
βFinancial Covenant Trigger Eventβ means the failure of the Loan Parties to maintain
Availability in an amount greater than or equal to the Availability Threshold Amount for five (5)
consecutive Business Days. For purposes of this Agreement, the occurrence of a Financial Covenant
Trigger Event shall be deemed continuing until Availability is greater than or equal to the
Availability Threshold Amount for thirty (30) consecutive days, at which time a Financial Covenant
Trigger Event shall no longer be deemed to be continuing for purposes of this Agreement.
βFinancing Requirementsβ has the meaning specified in the Preliminary Statements.
βFiscal Quarterβ means any fiscal quarter of any Fiscal Year, which quarter shall end
on the last day of each March, June, September and December of such Fiscal Year in accordance with
the fiscal accounting calendar of the Borrower and its Subsidiaries.
βFiscal Yearβ means a fiscal year of the Borrower and its Subsidiaries ending on
December 31.
XxxxβRevolving Credit and Guaranty Agreement
22
βForeign Subsidiaryβ means, at any time, any of the direct or indirect Subsidiaries of
the Borrower that are organized outside of the laws of the United States, any state thereof or the
District of Columbia at such time.
βFundβ means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.
βGAAPβ has the meaning specified in Section 1.03.
βGetrag Saleβ means the option in favor of GETRAG Getriebe-und Zahnradfabrik Xxxxxxx
Xxxxxxxxxx GmbH & Cie KG, or its delegate, to acquire a share, owned by Xxxx Corporation (or its
assign), in the nominal value of EUR 1,050,000 in GETRAG XXXX Holding GmbH, a German limited
liability company with a total share capital of EUR 2,500,000, registered in the commercial
register of the local court (Amtsgericht) Stuttgart under HRB 108407, pursuant to that certain Axle
Agreement by and among GETRAG US Holding GmbH, GETRAG and Xxxx Corporation as of August 24, 2007,
as amended, as set forth in the deeds, role of deeds numbers 817/2007 and 818/2007, of the notary
Xx. Xxxx-Xxxxx Xxxxx registered in Stuttgart, Germany, as last amended by the Amendment No. 1 of
September 27, 2007, as set forth in the deed, role of deeds no 918/2007, of the notary Xx.
Xxxx-Xxxxx Xxxxx.
βGranting Lenderβ has the meaning specified in Section 10.07(k).
βGuarantee Obligationβ means, with respect to any Person, any Obligation or
arrangement of such Person to guarantee or intended to guarantee any Debt (βprimary obligationsβ)
of any other Person (the βprimary obligorβ) in any manner, whether directly or indirectly,
including, without limitation, (a) the direct or indirect guarantee, endorsement (other than for
collection or deposit in the ordinary course of business), co making, discounting with recourse or
sale with recourse by such Person of the primary obligation of a primary obligor, (b) the
Obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by
any other party or parties to an agreement or (c) any Obligation of such 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 (A) for the purchase or payment of any
such primary obligation or (B) 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, assets, 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 holder of such primary obligation
against loss in respect thereof. The amount of any Guarantee Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made (or, if less, the maximum amount of such primary obligation for
which such Person may be liable pursuant to the terms of the instrument evidencing such Guarantee
Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder), as determined by such
Person in good faith.
βGuaranteed Obligationsβ has the meaning specified in Section 8.01.
XxxxβRevolving Credit and Guaranty Agreement
23
βGuarantorβ has the meaning specified in the recital of parties to this Agreement.
βGuarantyβ has the meaning specified in Section 8.01.
βHazardous Materialsβ means (a) petroleum or petroleum products, by products or
breakdown products, radioactive materials, asbestos-containing materials, polychlorinated
biphenyls, mold and radon gas and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous, toxic or words of similar import under any Environmental Law.
βHedge Agreementsβ means interest rate swaps, cap or collar agreements, interest rate
future or option contracts, currency swap agreements, currency future or option contracts and other
hedging agreements.
βHedge Bankβ means any Lender Party or an Affiliate of a Lender Party in its capacity
as a party to a Secured Hedge Agreement; provided that in the case of any Secured Hedge
Agreement entered into pursuant to Section 5.01(t), such relevant Lender Party (or such Affiliate)
provided a Revolving Credit Commitment of at least $15,000,000 during the primary syndication of
the Facilities.
βHonor Dateβ has the meaning specified in Section 2.03(c).
βIndemnified Liabilitiesβ has the meaning specified in Section 10.04(b).
βIndemniteesβ has the meaning specified in Section 10.04(b).
βInformational Websiteβ has the meaning specified in Section 5.03.
βInitial Extension of Creditβ means the earlier to occur of the initial Borrowing and
the initial issuance of a Letter of Credit hereunder.
βInitial Issuing Banksβ means the banks listed on the signature pages hereof as an
Initial Issuing Bank.
βInitial Lendersβ means the banks, financial institutions and other institutional
lenders listed on the signature pages hereof; provided that any such bank, financial institution or
other institutional lender shall cease to be an Initial Lender on any date on which it ceases to
have a Commitment.
βInitial Swing Line Lenderβ means the banks listed on the signature pages hereof as an
Initial Swing Line Lender.
βInsufficiencyβ means, with respect to any ERISA Plan, the amount, if any, of its
unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
βIntellectual Property Security Agreementβ has the meaning specified in Section
3.01(a)(iii)(D).
XxxxβRevolving Credit and Guaranty Agreement
24
βIntercreditor Agreementβ means an Intercreditor Agreement dated as of the Closing
Date by and among the Collateral Agent, the collateral agent in respect of the Term Facility and
the Loan Parties, substantially in the form of Exhibit K hereto.
βInterest Incomeβ means, with respect to the Borrower and its Subsidiaries for any
period, total interest income receivable in cash with respect to such period, as determined on a
Consolidated basis in accordance with GAAP.
β
Interest Periodβ means, for each Eurodollar Rate Advance comprising part of the same
Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the date of the
Conversion of any Base Rate Advance into such Eurodollar Rate Advance, and ending on the last day
of the period selected by the Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately preceding Interest Period and
ending on the last day of the period selected by the Borrower pursuant to the provisions below.
The duration of each such Interest Period shall be one, two, three, six months (or, if consented to
by all Lenders, nine months or twelve months), as the Borrower may, upon notice received by the
Administrative Agent not later than 11:00 A.M. (
New York City time) on the third Business Day prior
to the first day of such Interest Period, select;
provided,
however, that:
(a) the Borrower may not select any Interest Period with respect to any Eurodollar Rate
Advance under a Facility that ends after any principal repayment installment date for such Facility
unless, after giving effect to such selection, the aggregate principal amount of Base Rate Advances
and of Eurodollar Rate Advances having Interest Periods that end on or prior to such principal
repayment installment date for such Facility shall be at least equal to the aggregate principal
amount of Advances under such Facility due and payable on or prior to such date;
(b) Interest Periods commencing on the same date for Eurodollar Rate Advances comprising part
of the same Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such extension would cause the
last day of such Interest Period to occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a day of an initial calendar month
for which there is no numerically corresponding day in the calendar month that succeeds such
initial calendar month by the number of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of such succeeding calendar month.
βInternal Revenue Codeβ means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.
βInventoryβ has the meaning specified in the UCC.
XxxxβRevolving Credit and Guaranty Agreement
25
βInventory Valueβ means with respect to any Inventory of a Loan Party at the time of
any determination thereof, the standard cost determined on a first in first out basis and carried
on the general ledger or inventory system of such Loan Party stated on a basis consistent with its
current and historical accounting practices, in Dollars, determined in accordance with the standard
cost method of accounting less, without duplication, (i) any markup on Inventory from an Affiliate
and (ii) in the event variances under the standard cost method are expensed, a Reserve reasonably
determined by the Administrative Agent as appropriate in order to adjust the standard cost of
Eligible Inventory to approximate actual cost.
βInvestmentβ means, with respect to any Person, (a) any direct or indirect purchase or
other acquisition (whether for cash, securities, property, services or otherwise) by such Person
of, or of a beneficial interest in, any Equity Interests or Debt of any other Person, (b) any
direct or indirect purchase or other acquisition (whether for cash, securities, property, services
or otherwise) by such Person of all or substantially all of the property and assets of any other
Person or of any division, branch or other unit of operation of any other Person, and (c) any
direct or indirect loan, advance, other extension of credit or capital contribution by such Person
to, or any other investment by such Person in, any other Person (including, without limitation, any
arrangement pursuant to which the investor incurs indebtedness of the types referred to in clause
(i) or (j) of the definition of βDebtβ set forth in this Section 1.01 in respect of such other
Person).
βIssuing Bankβ means each Initial Issuing Bank and any other Revolving Credit Lender
approved as an Issuing Bank by the Administrative Agent and any Eligible Assignee to which a Letter
of Credit Commitment hereunder has been assigned pursuant to Section 7.09 or 10.07.
βJoint Bookrunnersβ has the meaning specified in the recitals of parties to this
Agreement.
βLandlord Lien Waiverβ means a written agreement that is reasonably acceptable to the
Administrative Agent, pursuant to which a Person shall waive or subordinate its rights (if any,
that are or would be prior to the Liens granted to the Administrative Agent for the benefit of the
Lenders under the Loan Documents) and claims as landlord in any Inventory of a Loan Party for
unpaid rents, grant access to the Administrative Agent for the repossession and sale of such
inventory and make other agreements relative thereto.
βLBIβ has the meaning specified in the recital of parties to this Agreement.
βL/C Cash Collateral Accountβ means the account established by the Borrower in the
name of the Administrative Agent and under the sole and exclusive control of the Administrative
Agent that shall be used solely for the purposes set forth herein.
βL/C Obligationsβ means, as at any date of determination, the aggregate Available
Amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts,
including all Letter of Credit Borrowings.
βLead Arrangersβ has the meaning specified in the recital of parties to this
Agreement.
XxxxβRevolving Credit and Guaranty Agreement
26
βLender Partyβ means any Lender, any Issuing Bank or the Swing Line Lender.
βLendersβ has the meaning specified in the recital of parties to this Agreement. For
purposes of Section 10.01 (and any other provisions requiring the consent or approval of the
Lenders set forth herein), the definition of βLendersβ shall exclude Affiliated Lenders.
βLetter of Creditβ means any letter of credit issued hereunder and shall include any
Existing Letters of Credit.
βLetter of Credit Advanceβ means an advance made by any Issuing Bank or Revolving
Credit Lender pursuant to Section 2.03(c).
βLetter of Credit Applicationβ means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the applicable Issuing
Bank.
βLetter of Credit Commitmentβ means with respect to any Issuing Bank, the amount set
forth opposite such Issuing Bankβs name on Schedule I hereto under the caption βLetter of Credit
Commitmentβ or if such Issuing Bank has entered into one or more Assignment and Acceptances, set
forth (for such Issuing Bank in the Register maintained by the Administrative Agent pursuant to
Section 10.07(d) as such Issuing Bankβs Letter of Credit Commitment,β as such amount may be reduced
at or prior to such time pursuant to Section 2.05.
βLetter of Credit Expiration Dateβ means the day that is five days prior to the
Maturity Date, or such later date as the applicable Issuing Bank may, in its sole discretion,
specify.
βLetter of Credit Sublimitβ means an amount equal to the lesser of (a) the aggregate
amount of the Issuing Banksβ Letter of Credit Commitments at such time and (b) $400,000,000 as such
amount may be reduced from time to time pursuant to Section 2.05. The Letter of Credit Sublimit is
part of, and not in addition to, the Revolving Credit Commitments.
βLienβ means any lien, security interest or other charge or encumbrance of any kind,
or any other type of preferential arrangement, including, without limitation, the lien or retained
security title of a conditional vendor and any easement, right of way or other encumbrance on title
to real property.
βLoan Documentsβ means (i) this Agreement, (ii) the Notes, if any, (iii) the
Collateral Documents, (iv) the Fee Letter, (v) solely for purposes of the Collateral Documents,
each Secured Hedge Agreement, (vi) the Intercreditor Agreement and (vii) any other document,
agreement or instrument executed and delivered by a Loan Party in connection with the Facilities,
in each case as amended, supplemented or otherwise modified from time to time in accordance with
the terms thereof.
βLoan Partiesβ means, collectively, the Borrower and the Guarantors.
XxxxβRevolving Credit and Guaranty Agreement
27
βLoan Valueβ means, (a) with respect to Eligible Receivables, up to 85% of the value
of Eligible Receivables and (b) with respect to Eligible Inventory, the lesser of (i) 65% of
the value of Eligible Inventory and (ii) 85% of the Net Recovery Rate of Eligible Inventory
(based on the then most recent independent inventory appraisal) on any date of determination.
βMargin Stockβ has the meaning specified in Regulation U.
βMaterial Adverse Changeβ means any event or occurrence that has resulted in or would
reasonably be expected to result in any material adverse change in the business, financial or other
condition, operations or properties of the Borrower and its Subsidiaries, taken as a whole (other
than events publicly disclosed prior to the commencement of the Cases and the commencement and
continuation of the Cases and the consequences that would normally result therefrom);
provided that events, developments and circumstances disclosed in public filings and press
releases of the Borrower and any other events of information made available in writing to the Lead
Arrangers, in each case at least three days prior to the Closing Date, shall not be considered in
determining whether a Material Adverse Change has occurred, although subsequent events,
developments and circumstances relating thereto may be considered in determining whether or not a
Material Adverse Change has occurred.
βMaterial Adverse Effectβ means a material adverse effect on (a) the business,
financial or other condition, operations or properties of the Borrower and its Subsidiaries, taken
as a whole, (b) the rights and remedies of the Administrative Agent or any Lender Party under any
Loan Document or (c) the ability of any Loan Party to perform its Obligations under any Loan
Document to which it is or is to be a party; provided that events, developments and
circumstances disclosed in public filings and press releases of the Borrower and any other events
of information made available in writing to the Lead Arrangers, in each case at least three days
prior to the Closing Date, shall not be considered in determining whether a Material Adverse Effect
has occurred, although subsequent events, developments and circumstances relating thereto may be
considered in determining whether or not a Material Adverse Effect has occurred.
βMaterial Real Propertyβ means any (i) parcel of real property having a fair market
value in excess of $1,000,000 and (ii) leasehold properties (x) that are greater than 100,000
square feet, (y) the annual rental payments with respect to such leasehold property are greater
than $5,000,000 and (z) the term of such leasehold property expires after the Maturity Date;
provided; that real property excluded in the definition of Material Subsidiary shall not be
deemed Material Real Property. Notwithstanding the forgoing, the definition of Material Real
Property shall exclude the Excluded Real Property.
βMaterial Subsidiaryβ means, on any date of determination, any Subsidiary of the
Borrower that, on such date, has (i) assets with a book value equal to or in excess of $5,000,000,
(ii) annual net income in excess of $5,000,000 or (iii) liabilities in an aggregate amount equal to
or in excess of $5,000,000; provided, however, that in no event shall all
Subsidiaries of the Borrower that are not Material Subsidiaries have (i) in the case of all such
Subsidiaries organized under the laws of a jurisdiction located within the United States (A) assets
with an aggregate book value in excess of $5,000,000, (B) aggregate annual net income in excess of
$5,000,000 or (C) liabilities in an aggregate amount in excess of $5,000,000 and (ii) in the case
of all such Subsidiaries (A) assets with an aggregate book value in excess of $20,000,000, (B)
aggregate
XxxxβRevolving Credit and Guaranty Agreement
28
annual net income in excess of $20,000,000 or (C) liabilities in an aggregate amount in
excess of $20,000,000.
βMaturity Dateβ means the date that is five years following the Closing Date.
βMoodyβsβ means Xxxxxβx Investor Services, Inc.
βMortgagesβ shall mean deeds of trust, trust deeds, mortgages, leasehold mortgages and
leasehold deeds of trust substantially in the form of Exhibit M hereto (with such changes
as may be reasonably satisfactory to the Administrative Agent and its counsel to account for local
law matters) and otherwise in form and substance satisfactory to the Administrative Agent, pursuant
to which, among other things, a Loan Party owning or leasing real property grants a Lien on such
real property securing the Secured Obligations to the Administrative Agent (or Collateral Agent)
for its own benefit and the benefit of the other Secured Parties.
βMultiemployer Planβ means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or accrued an obligation to
make contributions.
βMultiple Employer Planβ means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate
and at least one Person other than the Loan Parties and the ERISA Affiliates or (b) was so
maintained within any of the preceding five plan years and in respect of which any Loan Party or
any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan
has been or were to be terminated.
βNet Cash Proceedsβ means, with respect to any Asset Sale or Recovery Event, the
excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Asset
Sale or Recovery Event (including any cash or Cash Equivalents received by way of deferred payment
pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so
received) over (ii) the sum of (A) the principal amount of any Debt (other than Debt under the Loan
Documents) that is secured by any such asset and that is required to be repaid in connection with
such Asset Sale or Recovery Event, (B) in the case of Net Cash Proceeds received by a Foreign
Subsidiary, the principal amount of any Debt of Foreign Subsidiaries permanently prepaid or repaid
with such proceeds, (C) the reasonable and customary out-of-pocket costs, fees (including
investment banking fees), commissions, premiums and expenses incurred by the Borrower or its
Subsidiaries, and (D) federal, state, provincial, foreign and local taxes reasonably estimated (on
a Consolidated basis) to be actually payable within the current or the immediately succeeding tax
year as a result of any gain recognized in connection therewith; provided, however,
that (x) Net Cash Proceeds shall not include the first $100,000,000 of net cash receipts received
after the Closing Date from sales, leases, transfers or other dispositions of assets by Foreign
Subsidiaries permitted by Section 5.02(g)(ix) or (y) to the extent that the distribution to any
Loan Party of any Net Cash Proceeds from any Asset Sale or Recovery Event in respect of any asset
of a Foreign Subsidiary pursuant to Section 5.02(g)(ix) would (1) result in material adverse tax
consequences, (2) result in a material breach of any agreement governing Debt of such Foreign
Subsidiary permitted to exist or to be incurred by such Foreign Subsidiary
XxxxβRevolving Credit and Guaranty Agreement
29
under the terms of this
Agreement and/or (3) be limited or prohibited under applicable local law, the application of such
Net Cash Proceeds to the prepayment of the Facilities pursuant to Section 2.06(b)(i) shall be
deferred on terms to be agreed between the Borrower and the Administrative
Agent (provided that in each case the relevant Loan Party and/or Subsidiaries of such
Loan Party shall take all commercially reasonable steps (except to the extent that any such step
results in a material cost or tax to the Borrower or any of its Subsidiaries) to minimize any such
adverse tax consequences and/or to obtain any exchange control clearance or other consents,
permits, authorizations or licenses which are required to enable the Net Cash Proceeds to be
repatriated or advanced to, and applied by, the relevant Loan Party in order to effect such a
prepayment.
βNet Orderly Liquidation Valueβ means, with respect to Inventory, as the case may be,
the orderly liquidation value with respect to such Inventory, net of expenses estimated to be
incurred in connection with such liquidation, based on the most recent third party appraisal in
form and substance, and by an independent appraisal firm, reasonably satisfactory to the
Administrative Agent.
βNet Recovery Rateβ means, with respect to Inventory at any time, the quotient
(expressed as a percentage) of (i) the Net Orderly Liquidation Value of all Inventory owned by the
Borrower and the Guarantors divided by (ii) the gross inventory cost of such Inventory, determined
on the basis of the then most recently conducted third party inventory appraisal in form and
substance, and performed by an independent appraisal firm, reasonably satisfactory to the
Administrative Agent.
βNew Equity Investmentβ means the new preferred Equity Interests to be issued in
connection with the Plan.
βNon-Consenting Lenderβ shall have the meaning specified in Section 10.01.
βNon-Loan Partyβ means any Subsidiary of a Loan Party that is not a Loan Party.
βNoteβ means a promissory note of the Borrower payable to the order of any Revolving
Credit Lender, in substantially the form of Exhibit A hereto, evidencing the aggregate indebtedness
of the Borrower to such Lender resulting from the Revolving Credit Advances made by such Lender.
βNotice of Borrowingβ has the meaning specified in Section 2.02(a).
βNotice of Defaultβ has the meaning specified in Section 7.05.
βNotice of Swing Line Borrowingβ has the meaning specified in Section 2.02(b).
βObligationβ means, with respect to any Person, any payment, performance or other
obligation of such Person of any kind, including, without limitation, any liability of such Person
on any claim, whether or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or not such claim is discharged, stayed or
otherwise affected by any proceeding under any Debtor Relief Law. Without limiting
XxxxβRevolving Credit and Guaranty Agreement
30
the generality
of the foregoing, the Obligations of the Loan Parties under the Loan Documents include (a) the
obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees,
reasonable attorneysβ fees and disbursements, indemnities and other amounts payable by any Loan
Party under any Loan Document and (b) the obligation of any Loan Party
to reimburse any amount in respect of any of the foregoing that any Lender Party, in its sole
discretion, may elect to pay or advance on behalf of such Loan Party.
βOld Xxxxβ has the meaning specified in the Preliminary Statements.
βOther Taxesβ has the meaning specified in Section 2.12(b).
βOutstanding Amountβ means (i) with respect to Advances on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments of Advances, as the case may be, occurring on such date; and (ii) with respect to any
L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to
any Letter of Credit Borrowing occurring on such date and any other changes in the aggregate amount
of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding
unpaid drawings under any Letters of Credit or any reductions in the Available Amount of any Letter
of Credit taking effect on such date.
βParticipating Member Statesβ has the meaning given to it in Council Regulation EC No.
1103/97 of 17 June 1997 made under Article 235 of the Treaty on European Union.
βPatriot Actβ means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law
October 26, 2001.
βPayment Conditionβ means, immediately before and immediately after giving effect to a
Permitted Acquisition, an Investment, Disposition, Dividend or payment of Debt pursuant to Section
5.02(o), the sum of Availability of the Borrower plus Unrestricted Cash is equal to or greater than
$150,000,000; provided that Availability shall be no less than the Availability Threshold Amount.
βPBGCβ means the Pension Benefit Guaranty Corporation (or any successor).
βPermitted Acquisitionβ means any Acquisition by the Borrower or any of its
Subsidiaries; provided that (A) such Acquisition shall be in property and assets which are part
of, or in lines of business that are, substantially the same lines of business as (or ancillary to)
one or more of the businesses of the Borrower and its Subsidiaries in the ordinary course; (B) any
determination of the amount of consideration paid in connection with such investment shall include
all cash consideration paid, including Earn-Out Obligations (other than Excluded Earn-Out
Obligations), the aggregate amounts paid or to be paid under noncompete, consulting and other
affiliated agreements with, the sellers of such investment, and the principal amount of all
assumptions of debt, liabilities and other obligations in connection therewith; and (C) immediately
before and immediately after giving effect to such Acquisition, (1) no Default or Event of Default
shall have occurred and be continuing and (2) there shall not have occurred a Financial Covenant
Trigger Event (compliance with this clause (2) shall be determined, in the case of any Permitted
Acquisition in excess of $20,000,000, on the basis of audited financial
XxxxβRevolving Credit and Guaranty Agreement
31
statements (or, if such
audited financial statements are unavailable, other historical financial information reasonably
acceptable to the Administrative Agent) for such investment as though such investment had been
consummated as of the first day of the fiscal period).
βPermitted Collateral Liensβ has the meaning specified in the definition of βEligible
Inventoryβ.
βPermitted Lienβ means (i) liens in favor of the Administrative Agent and/or the
Collateral Agent for the benefit of the Secured Parties and the other parties intended to share the
benefits of the Collateral granted pursuant to any of the Loan Documents; (ii) liens for taxes and
other obligations or requirements owing to or imposed by governmental authorities existing or
having priority, as applicable, by operation of law which in either case (A) are not yet overdue or
(B) are being contested in good faith by appropriate proceedings promptly instituted and diligently
conducted so long as appropriate reserves in accordance with GAAP shall have been made with respect
to such taxes or other obligations; (iii) statutory liens of banks and other financial institutions
(and rights of set-off), (iv) statutory liens of landlords, carriers, warehousemen, mechanics,
repairmen, workmen and materialmen, and other liens imposed by law (other than any such lien
imposed pursuant to Section 430(k) of the Internal Revenue Code or by ERISA), in each case incurred
in the ordinary course of business (A) for amounts not yet overdue or (B) for amounts that are
overdue and that (in the case of any such amounts overdue for a period in excess of five days) are
being contested in good faith by appropriate proceedings, so long as such reserves or other
appropriate provisions, if any, as shall be required by GAAP shall have been made for any such
contested amounts; (v) liens incurred in the ordinary course of business in connection with
workersβ compensation, unemployment insurance and other types of social security; (vi) liens,
pledges and deposits to secure the performance of tenders, statutory obligations, performance and
completion bonds, surety bonds, appeal bonds, bids, leases, licenses, government contracts, trade
contracts, performance and return-of-money bonds and other similar obligations; (vii) easements,
rights-of-way, zoning restrictions, licenses, encroachments, restrictions on use of real property
and other similar encumbrances incurred in the ordinary course of business, in each case that were
not incurred in connection with and do not secure Debt and do not materially and adversely affect
the use of the property encumbered thereby for its intended purposes; (viii) (A) any interest or
title of a lessor under any lease by the Borrower or any Subsidiary of the Borrower and (B) any
leases or subleases by the Borrower or any Subsidiary of the Borrower to another Person(s) in the
ordinary course of business do not materially and adversely affect the use of the property
encumbered thereby for its intended purposes; (ix) liens solely on any xxxx xxxxxxx money deposits
made by the Borrower or any of its Subsidiaries in connection with any letter of intent or purchase
agreement entered into in connection with a Permitted Acquisition or another Investment permitted
hereunder; (x) the filing of precautionary UCC financing statements relating to leases entered into
in the ordinary course of business and the filing of UCC financing statements by bailees and
consignees in the ordinary course of business; (xi) liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in connection with the
importation of goods; (xii) leases and subleases or licenses and sublicenses of patents, trademarks
and other intellectual property rights granted by the Borrower or any of its Subsidiaries in the
ordinary course of business and not interfering in any respect with the ordinary conduct of the
business of the Borrower or such Subsidiary; (xiii) liens arising out of judgments not constituting
an Event of Default hereunder; (xiv) liens securing reimbursement obligations with respect to
letters of credit
XxxxβRevolving Credit and Guaranty Agreement
32
that encumber documents and other property relating to such letters of credit and
the proceeds and products thereof; and (xv) any right of first refusal or first offer, redemption
right, or option or similar right in respect of any capital stock owned by the Borrower or any
Subsidiary of the Borrower with respect to any joint venture or other Investment, in favor of any
co-venturer or
other holder of capital stock in such investment; (xvi) Liens in favor of the Term Facility
Administrative Agent and/or the βCollateral Agentβ under the Term Facility for the benefit of the
secured parties and the other parties intended to share the benefits of the Collateral granted
pursuant to any of the Term Facility Loan Documents, and (xvii) Permitted Encumbrances (as defined
in the Mortgage).
βPermitted Refinancingβ with respect to any Person, any modification, refinancing,
refunding, renewal or extension of any Debt of such Person; provided that (a) the principal
amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted
value, if applicable) of the Debt so modified, refinanced, refunded, renewed or extended except by
an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid,
and fees and expenses reasonably incurred, in connection with such modification, refinancing,
refunding, renewal or extension and by an amount equal to any existing commitments unutilized
thereunder, (b) such modification, refinancing, refunding, renewal or extension has a final
maturity date equal to or later than the final maturity date of the Indebtedness being modified,
refinanced, refunded, renewed or extended, (c) if the Debt being modified, refinanced, refunded,
renewed or extended is subordinated in right of payment to the Obligations, such modification,
refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations
on terms at least as favorable to the Lenders as those contained in the documentation governing the
Debt being modified, refinanced, refunded, renewed or extended, taken as a whole, (d) the terms and
conditions (including, if applicable, as to Collateral) of any such modified, refinanced, refunded,
renewed or extended Debt are not materially less favorable to the Loan Parties or the Lenders than
the terms and conditions of the Debt being modified, refinanced, refunded, renewed or extended and
(e) at the time thereof, no Event of Default shall have occurred and be continuing.
βPersonβ means an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated association, joint venture or
other entity, or a government or any political subdivision or agency thereof.
βPlan Documentsβ shall have the meaning specified in Section 3.01(a).
βPlan Effective Dateβ has the meaning specified in the Preliminary Statements.
βPlatformβ has the meaning specified in Section 10.02(b).
βPreferred Interestsβ means, with respect to any Person, Equity Interests issued by
such Person that are entitled to a preference or priority over any other Equity Interests issued by
such Person upon any distribution of such Personβs property and assets, whether by dividend or upon
liquidation.
βPro Forma Transactionβ means (a) any Permitted Acquisition, together with each other
transaction relating thereto and consummated in connection therewith, including any
XxxxβRevolving Credit and Guaranty Agreement
33
incurrence or
repayment of Debt and (b) any sale, lease, transfer or other disposition made in accordance with
Section 5.2(g) hereof.
βPro Rata Shareβ of any amount means, with respect to any Lender at any time, the
product of such amount times a fraction the numerator of which is the amount of such
Lenderβs Commitment (or, if the Commitments shall have been terminated pursuant to Section
2.05 or 6.01, such Lenderβs Commitment as in effect immediately prior to such termination) under
the applicable Facility or Facilities at such time and the denominator of which is the amount of
such Facility or Facilities at such time (or, if the Commitments shall have been terminated
pursuant to Section 2.05 or 6.01, the amount of such Facility or Facilities as in effect
immediately prior to such termination).
βProjectionsβ has the meaning specified in Section 5.03(d).
βPropertiesβ means the properties listed on Schedule 4.01(r), Schedule 4.01(s) and
Schedule 4.01(t) hereto.
βReal Estate Closing Deliverablesβ means the delivery of Mortgages covering the
Properties duly executed by the appropriate Loan Party, together with:
(a) evidence, using commercially reasonable efforts that counterparts of the Mortgages have
been duly executed, acknowledged and delivered on or before the Closing Date (or such later date as
may be specified in Schedule 5.01(u)) and are in form suitable for filing or recording in all
filing or recording offices that the Administrative Agent may deem necessary or desirable in order
to create a valid first and subsisting Lien (subject to Permitted Liens) on the property described
therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing
and recording taxes and fees have been or, contemporaneous with the recording of such Mortgage,
will be, paid,
(b) fully paid American Land Title Association Lenderβs Extended Coverage title insurance
policies (the βMortgage Policiesβ) in form and substance, with endorsements (including
zoning endorsements) and in amount acceptable to the Administrative Agent, issued, coinsured and
reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be
valid first and subsisting Liens on the real property described therein, free and clear of all
defects (including, but not limited to, mechanicsβ and materialmenβs Liens) and encumbrances,
excepting only Permitted Liens, and providing for such other affirmative insurance (including
endorsements for mechanicsβ and materialmenβs Liens) and such coinsurance and direct access
reinsurance as the Administrative Agent may reasonably deem necessary or desirable and with respect
to any Property located in a state in which a zoning endorsement is not available, a zoning
compliance letter from the applicable municipality or a zoning report from Planning and Zoning
Resource Corporation in each case reasonably satisfactory to the Administrative Agent,
(c) American Land Title Association/American Congress on Surveying and Mapping form surveys,
for which all necessary fees (where applicable) have been paid, and dated a recent date reasonably
acceptable to the Administrative Agent certified to the Administrative Agent and the issuer of the
Mortgage Policies in a manner reasonably satisfactory
XxxxβRevolving Credit and Guaranty Agreement
34
to the Administrative Agent by a land
surveyor duly registered and licensed in the States in which the real property described in such
surveys is located and reasonably acceptable to the Administrative Agent, showing all buildings and
other improvements, any off-site improvements, the location of any easements, parking spaces,
rights of way, building set-back lines and other dimensional regulations and the absence of
encroachments, either by such
improvements or on to such property, and other defects, other than Permitted Encumbrances (as
defined in the Mortgage) and other defects reasonably acceptable to the Administrative Agent,
(d) estoppel and consent agreements, in form and substance satisfactory to the Administrative
Agent, executed by each of the lessors of the leased real properties listed on Schedule 4.01(t)
hereto, along with (x) a memorandum of lease in recordable form with respect to such leasehold
interest, executed and acknowledged by the owner of the affected real property, as lessor, or (y)
evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof
has been recorded in all places necessary or desirable, in the Administrative Agentβs reasonable
judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (z)
if such leasehold interest was acquired or subleased from the holder of a recorded leasehold
interest, the applicable assignment or sublease document, executed and acknowledged by such holder,
in each case in form sufficient to give such constructive notice upon recordation and otherwise in
form satisfactory to the Administrative Agent,
(e) without duplication of the opinions of counsel provided pursuant to Section 3.01(a)(xi),
favorable opinions of local counsel for the Loan Parties (i) in states in which the Material
Properties are located, with respect to the enforceability and perfection of the Mortgages and any
related fixture filings substantially in the form of Exhibit N hereto, and otherwise in form and
substance reasonably satisfactory to the Administrative Agent and (ii) in states in which the Loan
Parties party to the Mortgages are organized or formed, with respect to the valid existence,
corporate power and authority of such Loan Parties in the granting of the Mortgages, in form and
substance satisfactory to the Administrative Agent, and
(f) such other consents, agreements and confirmations of lessors and third parties as the
Administrative Agent may deem necessary or desirable and evidence that all other actions that the
Administrative Agent may deem necessary or desirable in order to create valid first and subsisting
Liens on the property described in the Mortgages has been taken.
βRecovery Eventβ means any settlement of or payment in respect of any property or
casualty insurance claim or any condemnation proceeding relating to any asset of the Borrower or
any Guarantor constituting Revolving Facility Collateral.
βRedeemableβ means, with respect to any Equity Interest, Debt or other right or
Obligation, any such right or Obligation that (a) the issuer has undertaken to redeem at a fixed or
determinable date or dates, whether by operation of a sinking fund or otherwise, or upon the
occurrence of a condition not solely within the control of the issuer or (b) is redeemable at the
option of the holder.
βRegisterβ has the meaning specified in Section 10.07(d).
XxxxβRevolving Credit and Guaranty Agreement
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βRegulation Uβ means Regulation U of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
βRent Reserveβ means, with respect to any plant, warehouse distribution center or
other operating facility where any Inventory subject to landlordsβ Liens or other Liens arising by
operation of law is located, a reserve equal to three (3) monthβs rent at such plant, warehouse
distribution center, or other operating facility, and such other reserve amounts that may be
determined by the Administrative Agent in its reasonable discretion.
βReorganization Planβ shall have the meaning specified in Section 3.01(a).
βRequired Lendersβ means, at any time, Lenders or an Affiliated Lender owed or holding
at least a majority in interest of the sum of (a) the aggregate principal amount of the Advances
outstanding at such time, (b) the aggregate Available Amount of all Letters of Credit outstanding
at such time and (c) the aggregate Unused Revolving Credit Commitment at such time;
provided, however, that if any Lender shall be a Defaulting Lender or an Affiliated
Lender at such time, there shall be excluded from the determination of Required Lenders at such
time (A) the aggregate principal amount of the Advances owing to such Lender (in its capacity as a
Lender) and outstanding at such time, (B) such Lenderβs Pro Rata Share of the aggregate Available
Amount of all Letters of Credit issued by such Lender and outstanding at such time and (C) the
Unused Revolving Credit Commitment of such Lender at such time. For purposes of this definition,
the aggregate amount of Swing Line Advances owing to any Swing Line Lender, the aggregate principal
amount of Letter of Credit Advances owing to the Issuing Banks and the Available Amount of each
Letter of Credit shall be considered to be owed to the Lenders ratably in accordance with their
respective Revolving Credit Commitments).
βReservesβ means, at any time of determination, (a) Rent Reserves, (b) Secured Hedge
Agreement Reserves (to be determined on a net basis, taking into account the Agreement Value of
each Secured Hedge Agreement), and (c) such other reserves as determined from time to time in the
reasonable discretion of the Administrative Agent to preserve and protect the value of the
Collateral.
βResponsible Officerβ means the chief executive officer, president, chief financial
officer secretary or assistant secretary or treasurer or assistant treasurer of a Loan Party. Any
document delivered hereunder or under any other Loan Document that is signed by a Responsible
Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or or other action on the part of such Loan Party and such Responsible
Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
βRestricting Informationβ has the meaning set forth in Section 10.09(c).
βRestructuringβ means the reorganization or discontinuation of the Borrowerβs or any
Subsidiaryβs business, operations and structure in respect of (a) facility closures and the
consolidation, relocation or elimination of operations and (b) related severance costs and other
costs incurred in connection with the termination, relocation and training of employees.
XxxxβRevolving Credit and Guaranty Agreement
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βRestructuring Chargesβ means non-recurring and other one-time costs incurred by the
Borrower or any Subsidiary thereof in connection with a Restructuring.
βRevolving Credit Advanceβ has the meaning specified in Section 2.01(a).
βRevolving Credit Availability Amountβ means the lesser of (i) the Borrowing Base and
(ii) the Revolving Credit Commitments at such time.
βRevolving Credit Commitmentβ means, with respect to any Lender at any time, the
amount set forth for such time opposite such Lenderβs name on Schedule I hereto under the caption
βRevolving Credit Commitmentβ or, if such Lender has entered into one or more Assignments and
Assignments, set forth for such Lender in the Register maintained by the Administrative Agent
pursuant to Section 10.07(d) as such Lenderβs βRevolving Credit Commitmentβ, as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
βRevolving Credit Facilityβ means, at any time, the aggregate amount of the Lendersβ
Revolving Credit Commitments at such time.
βRevolving Facility Collateralβ shall have the meaning given to such term in the
Intercreditor Agreement.
βRevolving Credit Lenderβ means any Lender that has a Revolving Credit Commitment.
βRevolving Facility Prepayment Amountβ has the meaning set forth in Section 2.06(b).
βS&Pβ means Standard & Poorβs, a division of The Xx-Xxxx Hill Companies, Inc.
βSECβ means the Securities and Exchange Commission or any governmental authority
succeeding to any of its principal functions.
βSecured Credit Card Obligationsβ means any Obligations arising under the Credit Card
Program.
βSecured Hedge Agreementβ means any Hedge Agreement required or permitted under
Article V that is entered into by and between any Loan Party and any Hedge Bank, in each case
solely to the extent that the obligations in respect of such Hedge Agreement are not cash
collateralized or otherwise secured (other than pursuant to the Collateral Documents).
βSecured Hedge Agreement Reservesβ means a reserve equal to the aggregate amount of
Debt outstanding in excess of $50,000,000 with respect to Secured Hedge Agreements.
βSecured Obligationβ has the meaning specified in the Security Agreement.
XxxxβRevolving Credit and Guaranty Agreement
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βSecured Partiesβ means, collectively, each Agent, the Lender Parties, the Hedge Banks
and the Affiliates of Lender Parties party to the Credit Card Program.
βSecurity Agreementβ has the meaning specified in Section 3.01(a).
βSenior Credit Facilitiesβ means, collectively, the Facilities and the Term Facility.
βSingle Employer Planβ means a single employer plan, as defined in Section 4001(a)(15)
of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or (b) was so
maintained within any of the preceding five plan years and in respect of which any Loan Party or
any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has
been or were to be terminated.
βSolventβ and βSolvencyβ mean, with respect to any Person on a particular
date, that on such date (a) the fair value of the property of such Person is greater than the total
amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b)
the present fair salable value of the assets of such Person is not less than the amount that will
be required to pay the probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Personβs ability to pay such debts and liabilities as they mature and (d)
such Person is not engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Personβs property would constitute an unreasonably small capital, in
the case of each of the foregoing, as determined in accordance with under applicable bankruptcy,
insolvency or similar laws. The amount of contingent liabilities at any time shall be computed as
the amount that, in the light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured liability.
βSPCβ has the meaning specified in Section 10.07(k).
βSpecified Representationsβ means the (a) representations and warranties set forth in
Section 4.01(a)(i), (c), (d), (e), (j)(ii), (k) and (p) and (b) the representations made in the
Loan Documents that relate to the Borrower, its Subsidiaries and their businesses, as are material
to the interests of the Lenders, but only to the extent that Centerbridge has the right to
terminate its obligations under the Centerbridge Investment Agreement as a result of a breach of
corresponding representations in the Centerbridge Investment Agreement.
βSubordinated Debtβ means Debt that is (a) subordinated to the Obligation under the
Loan Documents and under the Term Facility Loan Documents or (b) required to be subordinated to the
Obligations under the Loan Documents and under the Term Facility Loan Documents; provided that: (i)
such Subordinated Debt shall have a term to maturity no earlier than the date that is six months
after the scheduled maturity date under the Term Facility Credit Agreement; (ii) no Subordinated
Debt shall permit or require scheduled amortization, payments or prepayments of principal, sinking
fund or similar scheduled payments (other than regularly scheduled payments of interest) prior to
the date that is six months after the scheduled maturity date under the Term Facility Credit
Agreement; (iii) Obligations under any Subordinated Debt shall be subordinated in right of payment
to the prior payment in full in cash of all Obligations
XxxxβRevolving Credit and Guaranty Agreement
38
under the Loan Documents and all
Obligations under the Term Facility Loan Documents, including any Obligations incurred, created,
assumed or guaranteed after the date hereof (subject to any limitation contained in such
Subordinated Debt) on terms not be less favorable to the Lenders than subordination provisions
customarily contained in high-yield debt securities for issuers of similar creditworthiness; (v) no
Loan Party shall be permitted to make a payment in respect of any Subordinated Debt so long as an
Event of Default has occurred or is continuing, or would result therefrom; (vi) no Subordinated
Debt shall contain covenants, defaults, remedy provisions or provisions relating to mandatory
prepayment, repurchase, redemption and offers to purchase other than those that, taken as a whole,
are consistent with those customarily found in
high-yield financings for issuers of similar creditworthiness; (vii) Subordinated Debt shall
be unsecured; and (viii) after giving effect to the incurrence of such Subordinated Debt, the
Borrower shall be in pro forma compliance with the financial covenants set forth in Section 5.04 of
the Term Facility Credit Agreement.
βSubsidiaryβ of any Person means any corporation, partnership, joint venture, limited
liability company, trust or estate of which (or in which) more than 50% of (a) the issued and
outstanding capital stock having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time capital stock of any other class
or classes of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such partnership, joint venture or
limited liability company or (c) the beneficial interest in such trust or estate is at the time
directly or indirectly owned or controlled by such Person, by such Person and one or more of its
other Subsidiaries or by one or more of such Personβs other Subsidiaries; provided that,
for purposes of the Loan Documents, no Excluded Subsidiary shall be a βSubsidiaryβ of the Borrower.
βSupermajority Lendersβ means, at any time, Lenders owed or holding at least 66 2/3%
in interest of the sum of (a) the aggregate principal amount of the Advances outstanding at such
time, (b) the aggregate Available Amount of all Letters of Credit outstanding at such time and (c)
the aggregate Unused Revolving Credit Commitment at such time; provided, however,
that if any Lender shall be a Defaulting Lender at such time, there shall be excluded from the
determination of Supermajority Lenders at such time (A) the aggregate principal amount of the
Advances owing to such Lender (in its capacity as a Lender) and outstanding at such time, (B) such
Lenderβs Pro Rata Share of the aggregate Available Amount of all Letters of Credit issued by such
Lender and outstanding at such time and (C) the Unused Revolving Credit Commitment of such Lender
at such time. For purposes of this definition, the aggregate amount of Swing Line Advances owing
to any Swing Line Lender, the aggregate principal amount of Letter of Credit Advances owing to the
Issuing Banks and the Available Amount of each Letter of Credit shall be considered to be owed to
the Lenders ratably in accordance with their respective Revolving Credit Commitments. For purposes
of Section 10.01 (and any other provisions requiring the consent or approval of the Lenders set
forth herein), the definition of βSupermajority Lendersβ shall exclude Affiliated Lenders.
βSupplemental Collateral Agentβ has the meaning specified in Section 7.02.
βSurviving Debtβ means the Debt of the Borrower and its Subsidiaries set forth on
Schedule 1.01(c).
XxxxβRevolving Credit and Guaranty Agreement
39
βSwing Line Advanceβ means an advance made by (a) the Swing Line Lender pursuant to
Section 2.01(c) or (b) any Revolving Credit Lender pursuant to Section 2.02(b).
βSwing Line Borrowingβ means a borrowing consisting of a Swing Line Advance made by
the Swing Line Lender pursuant to Section 2.01(c) or the Revolving Credit Lenders pursuant to
Section 2.02(b).
βSwing Line Commitmentβ means, with respect to the Swing Line Lender, the amount set
forth opposite its name on Schedule I hereto under the caption βSwing Line
Commitmentβ or, if the Swing Line Lender has entered into an Assignment and Acceptance, set
forth for the Swing Line Lender in the Register maintained by the Administrative Agent pursuant to
Section 10.07(d) as the Swing Line Lenderβs βSwing Line Commitmentβ, as such amount may be reduced
at or prior to such time pursuant to Section 2.05.
βSwing Line Facilityβ means, at any time, an amount equal to the aggregate amount of
the Swing Line Lenderβs Swing Line Commitment at such time, as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
βSwing Line Lenderβ means the Initial Swing Line Lender and any Eligible Assignee to
which the Swing Line Commitment hereunder has been assigned pursuant to Section 10.07 so long as
such Eligible Assignee expressly agrees to perform in accordance with their terms all obligations
that by the terms of this Agreement are required to be performed by it as a Swing Line Lender and
notifies the Administrative Agent of its Applicable Lending Office and the amount of its Swing Line
Commitment (which information shall be recorded by the Administrative Agent in the Register), for
so long as such Initial Swing Line Lender or Eligible Assignee, as the case may be, shall have a
Swing Line Commitment.
βSyndication Agentβ has the meaning specified in the recital of parties to this
Agreement.
βSynthetic Debtβ means, with respect to any Person as of any date of determination
thereof, all Obligations of such Person in respect of transactions entered into by such Person that
are intended to function primarily as a borrowing of funds (including, without limitation, any
minority interest transactions that function primarily as a borrowing) but are not otherwise
included in the definition of βDebtβ or as a liability on the consolidated balance sheet of such
Person and its Subsidiaries in accordance with GAAP. For the avoidance of doubt, no operating
leases entered into by any Loan Party in the ordinary course of business shall be considered
Synthetic Debt for the purposes of this definition.
βTaxesβ has the meaning specified in Section 2.12(a).
βTerm Facilityβ means the βTerm Facilityβ as defined in the Term Facility Credit
Agreement.
βTerm Facility Administrative Agentβ means the βAdministrative Agentβ as defined in
the Term Facility Credit Agreement.
XxxxβRevolving Credit and Guaranty Agreement
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βTerm Facility Credit Agreementβ means the agreement dated the date hereof by and
among Xxxx Holding Corporation, as borrower, the guarantors party thereto, CUSA, as administrative
agent, CGMI and LBI, as arrangers, CGMI, LBI and Barclays Capital, as joint bookrunners, LBI, as
syndication agent, Barclays, as documentation agent and the lenders party thereto.
βTerm Facility Collateralβ has the meaning specified in the Intercreditor Agreement.
βTerm Facility Loan Documentsβ means the βLoan Documentsβ as defined in the Term
Facility Credit Agreement.
βTermination Dateβ means the earliest to occur of (i) the Maturity Date and (ii) the
date of termination in whole of the Commitments pursuant to Section 2.05 or 6.01.
βTooling Programβ means any program whereby tooling equipment is purchased or progress
payments are made to facilitate production customerβs products and whereby the customer will
ultimately repurchase the tooling equipment after the final approval by such customer.
βTotal Outstandingsβ means the aggregate Outstanding Amount of all Advances and all
L/C Obligations.
βTransactionsβ means, collectively, (a) the consummation of the Reorganization Plan
and the other transactions contemplated by the Plan Documents, (b) the entering into by the Loan
Parties and their applicable Subsidiaries of the Loan Documents and the Term Facility Loan
Documents to which they are or are intended to be a party, and the borrowings hereunder and
thereunder on the Closing Date and application of the proceeds as contemplated hereby and thereby,
(c) the New Equity Investment, (d) the repayment in full and termination of all Existing Debt that
is not Surviving Debt and (e) the payment of the fees and expenses incurred in connection with the
consummation of the foregoing.
βTypeβ refers to the distinction between Advances bearing interest at the Base Rate
and Advances bearing interest at the Eurodollar Rate.
βUCCβ means the Uniform Commercial Code as in effect, from time to time, in the State
of New York; provided that, if perfection or the effect of perfection or non-perfection or
the priority of any security interest in any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of New York, βUCCβ means the Uniform Commercial
Code as in effect from time to time in such other jurisdiction for purposes of the provisions
hereof relating to such perfection, effect of perfection or non-perfection or priority.
βUnreimbursed Amountβ has the meaning specified in Section 2.03(c)(i).
βUnrestricted Cashβ means any cash held by the Borrower and its Material Subsidiaries
that is (i) not being held as cash collateral or subject to any Lien, (ii) does not constitute
escrowed funds for any purpose and (iii) does not represent a minimum balance requirement.
XxxxβRevolving Credit and Guaranty Agreement
41
βUnused Revolving Credit Commitmentβ means, with respect to any Lender at any time,
(a) such Lenderβs Revolving Credit Commitment at such time minus (b) the sum of (i) the aggregate
principal amount of all Revolving Credit Advances, Swing Line Advances and Letter of Credit
Advances made by such Lender (in its capacity as a Lender) and outstanding at such time, plus (ii)
such Lenderβs Pro Rata Share of (A) the aggregate Available Amount of all Letters of Credit
outstanding at such time, (B) the aggregate principal amount of all Letter of Credit Advances made
by the Issuing Banks pursuant to Section 2.03(c) and outstanding at such
time, and (C) the aggregate principal amount of all Swing Line Advances made by the Swing Line
Lender pursuant to Section 2.01(c) at any time.
βVoting Stockβ means capital stock issued by a corporation, or equivalent interests in
any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar functions) of such Person, even
if the right so to vote has been suspended by the happening of such a contingency.
βWelfare Planβ means a welfare plan, as defined in Section 3(1) of ERISA, that is
maintained for employees of any Loan Party or in respect of which any Loan Party could have
liability.
βWithdrawal Liabilityβ has the meaning specified in Part I of Subtitle E of Title IV
of ERISA.
Section 1.02 Computation of Time Periods. In this Agreement in the computation of
periods of time from a specified date to a later specified date, the word βfromβ means βfrom and
includingβ and the words βtoβ and βuntilβ each mean βto but excludingβ.
Section 1.03 Accounting Terms and Financial Determinations.
(a) All accounting terms not specifically defined herein shall be construed in accordance with
generally accepted accounting principles in effect from time to time (βGAAPβ); provided,
however, that if the Borrower notifies the Administrative Agent and the Lenders that the Borrower
wishes to amend any covenant in Article V to eliminate the effect of any change in GAAP that occurs
after the Closing Date on the operation of such covenant (or if the Administrative Agent notifies
the Borrower that the Required Lenders wish to amend Article V for such purpose), then the
Borrowerβs compliance with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrower, the Administrative
Agent and the Required Lenders, the Borrower, the Administrative Agent and the Lenders agreeing to
enter into negotiations to amend any such covenant immediately upon receipt from any party entitled
to send such notice.
(b) All components of financial calculations made to determine compliance with Article V shall
be adjusted on a pro forma basis to include or exclude, as the case may be, without duplication,
such components of such calculations attributable to any Pro Forma Transaction consummated after
the first day of the applicable period of determination and prior to the end of such period, as
determined in good faith by the Borrower based on assumptions
XxxxβRevolving Credit and Guaranty Agreement
42
expressed therein and that were
reasonable based on the information available to Borrower at the time of preparation of such
calculations.
(c) Any financial statements or other financial information required to be provided hereunder
(including any comparison financial information to any prior period) for the Borrower or any of its
Subsidiaries that includes or references financial information for any period prior to the Closing
Date, shall, unless the context clearly requires otherwise, be deemed a reference to Xxxx
Corporation and its Subsidiaries for the applicable period.
Section 1.04 Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words βinclude,β
βincludesβ and βincludingβ shall be deemed to be followed by the phrase βwithout limitation.β The
word βwillβ shall be construed to have the same meaning and effect as the word βshall.β Unless the
context requires otherwise, (a) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, restated, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Personβs successors and assigns, (c) the
words βherein,β βhereofβ and βhereunder,β and words of similar import, shall be construed to refer
to this Agreement in its entirety and not to any particular provision hereof, (d) all references
herein to Sections, Schedules and Exhibits shall be construed to refer to Sections of, and
Schedules and Exhibits to, this Agreement, (e) the words βassetβ and βpropertyβ shall be construed
to have the same meaning and effect and to refer to any and all real property, tangible and
intangible assets and properties, including cash, securities, accounts and contract rights, and
interests in any of the foregoing, and (f) any reference to a statute, rule or regulation is to
that statute, rule or regulation as now enacted or as the same may from time to time be amended,
re-enacted or expressly replaced.
Section 1.05 Reserves. When any Reserve is to be established or a change in any
amount, percentage, reserve, eligibility criteria or other item in the definitions of the terms
βBorrowing Baseβ, βEligible Inventoryβ, βEligible Receivablesβ and βRent Reserveβ is to be
determined in each case in the Administrative Agentβs βreasonable discretionβ, such Reserve shall
be implemented or such change shall become effective on the date of delivery of a written notice
thereof to the Borrower (a βBorrowing Base Change Noticeβ), or immediately, without prior
written notice, during the continuance of an Event of Default.
ARTICLE II
Section 2.01 The Advances. (a) The Revolving Credit Advances. Each
Revolving Credit Lender severally agrees, on the terms and conditions hereinafter set forth, to
make advances (each, a βRevolving Credit Advanceβ) to the Borrower from time to time on any
Business Day during the period from the Closing Date (subject to Section 2.14) until the
Termination Date (i) in an amount for each such Advance not to exceed such Revolving Credit
XxxxβRevolving Credit and Guaranty Agreement
43
Lenderβs Unused Revolving Credit Commitment at such time and (ii) in an aggregate amount for all
such Advances not to exceed such Lenderβs ratable portion (based on the aggregate amount of the
Unused Revolving Credit Commitments at such time) of the Revolving Credit Availability Amount at
such time; provided that the sum of (x) the aggregate principal amount of all Revolving Credit
Advances, Swing Line Advances and Letter of Credit Advances outstanding at such time plus (y) the
aggregate Available Amount of all Letters of Credit outstanding at such time shall not exceed the
Revolving Credit Availability Amount at any time.
(b) Borrowings. Each Borrowing shall be in a principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof (other than a Borrowing the proceeds of which
shall be used solely to repay or prepay in full outstanding Swing Line Advances or Letter of Credit
Advances) and shall consist of Advances made simultaneously by the Lenders under the applicable
Facility ratably according to the Lendersβ Commitments under such Facility. Within the limits of
each Lenderβs Unused Revolving Credit Commitment in effect from time to time, the Borrower may
borrow under Section 2.01(a), prepay pursuant to Section 2.06, and reborrow under Section 2.01(a).
(c) The Swing Line Advances. The Swing Line Lender severally agrees on the terms and
conditions hereinafter set forth, to make Swing Line Advances to the Borrower from time to time on
any Business Day during the period from the Closing Date until the Termination Date in an aggregate
amount owing to the Swing Line Lender not to exceed at any time outstanding the lesser of (i) the
Swing Line Facility at such time and (ii) the Swing Line Lenderβs Swing Line Commitment at such
time; provided, however, that no Swing Line Borrowing shall exceed the aggregate of
the Unused Revolving Credit Commitments of the Revolving Credit Lenders at such time. No Swing
Line Advance shall be used for the purpose of funding the payment of principal of any other Swing
Line Advance. Each Swing Line Borrowing shall be in an amount of $500,000 or an integral multiple
of $100,000 in excess thereof. Within the limits of the Swing Line Facility and within the limits
referred to in the first sentence of this subSection (d), the Borrower may borrow under this
Section 2.01(c), repay pursuant to Section 2.04(b) or prepay pursuant to Section 2.06(a) and
reborrow under this Section 2.01(c). Immediately upon the making of a Swing Line Advance, each
Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Swing Line Lender a risk participation in such Swing Line Advance in an amount
equal to the product of such Lenderβs Pro Rata Share times the principal amount of such Swing Line
Advance.
Section 2.02
Making the Advances. (a) Except as otherwise provided in Section
2.02(b) or 2.03, each Borrowing shall be made on notice, given not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances, or the first Business Day prior to the date of
the proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the Borrower
to the Administrative Agent, which shall give to each Lender prompt notice thereof by telex or
telecopier. Each such notice of a Borrowing (a β
Notice of Borrowingβ) shall be by
telephone, confirmed immediately in writing, or telex or telecopier, in substantially the form of
Exhibit B hereto, specifying therein the requested (i) date of such Borrowing, (ii) the Facility
under which such Borrowing is to be made, (iii) Type of Advances comprising such Borrowing, (iv)
aggregate amount of such Borrowing and (v) in the case of a Borrowing
XxxxβRevolving Credit and Guaranty Agreement
44
consisting of Eurodollar Rate
Advances, initial Interest Period for each such Advance. Each Lender shall, before 11:00 A.M. (New
York City time) on the date of such Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at the Administrative Agentβs Account, in same day
funds, such Lenderβs ratable portion of such Borrowing in accordance with the respective
Commitments of such Lender and the other Lenders. After the Administrative Agentβs receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower by crediting the Borrowerβs
Account or such other account as the
Borrower shall request; provided, however, that, in the case of Revolving
Credit Advances, the Administrative Agent shall first apply such funds to prepay ratably the
aggregate principal amount of any Swing Line Advances and Letter of Credit Advances outstanding on
the date of such Borrowing, plus interest accrued and unpaid thereon to and as of such date.
(b) (i) Each Swing Line Borrowing shall be made on notice, given not later than 11:00 A.M.
(New York City time) on the date of the proposed Swing Line Borrowing, by the Borrower to the Swing
Line Lender and the Administrative Agent. Each such notice of a Swing Line Borrowing (a
βNotice of Swing Line Borrowingβ) shall be by telephone, confirmed immediately in writing,
or telecopier, specifying therein the requested (i) date of such Borrowing, (ii) amount of such
Borrowing and (iii) maturity of such Borrowing (which maturity shall be no later than the seventh
day after the requested date of such Borrowing). The Swing Line Lender will make the amount of the
requested Swing Line Advances available to the Administrative Agent at the Administrative Agentβs
Account, in same day funds. After the Administrative Agentβs receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower by crediting the Borrowerβs Account or such other account
as the Borrower shall request.
(ii) The Swing Line Lender may, at any time in its sole and absolute discretion, request
on behalf of the Borrower (and the Borrower hereby irrevocably authorizes the Swing Line
Lender to so request on its behalf) that each Revolving Credit Lender make a Base Rate
Advance in an amount equal to such Lenderβs Pro Rata Share of the amount of Swing Line
Advances then outstanding. Such request shall be deemed to be a Notice of Borrowing for
purposes hereof and shall be made in accordance with the provisions of Section 2.02(a)
without regard solely to the minimum amounts specified therein but subject to the
satisfaction of the conditions set forth in Section 3.02 (except that the Borrower shall not
be deemed to have made any representations and warranties). The Swing Line Lender shall
furnish the Borrower with a copy of the Notice of Borrowing promptly after delivering such
notice to the Administrative Agent. Each Revolving Credit Lender shall make an amount equal
to its Pro Rata Share of the amount specified in such Notice of Borrowing available for the
account of its Applicable Lending Office to the Administrative Agent for the account of such
Swing Line Lender, by deposit to the Administrative Agentβs Account, in same date funds, not
later than 3:00 P.M. on the day specified in such Notice of Borrowing.
(iii) If for any reason any Swing Line Advance cannot be refinanced by a Revolving
Credit Borrowing as contemplated by Section 2.02(b)(ii), the request for Base Rate Advances
submitted by the Swing Line Lender as set forth in Section 2.02(b)(ii) shall be deemed to be
a request by such Swing Line Lender that each of the Revolving
XxxxβRevolving Credit and Guaranty Agreement
45
Credit Lenders fund its risk participation in the relevant Swing Line Advance and each Revolving
Credit Lenderβs payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section
2.02(b)(ii) shall be deemed payment in respect of such participation.
(iv) If and to the extent that any Revolving Credit Lender shall not have made the
amount of its Pro Rata Share of such Swing Line Advance available to the Administrative
Agent in accordance with the provisions of Section 2.02(b)(ii), such
Revolving Credit Lender agrees to pay to the Administrative Agent forthwith on demand
such amount together with interest thereon, for each day from the date of the applicable
Notice of Borrowing delivered by such Swing Line Lender until the date such amount is paid
to the Administrative Agent, at the Federal Funds Rate.
(v) Each Revolving Credit Lenderβs obligation to make Revolving Credit Advances or to
purchase and fund risk participations in a Swing Line Advance pursuant to this Section
2.02(b) shall be absolute and unconditional and shall not be affected by any circumstance,
including (A) any set-off, counterclaim, recoupment, defense or other right which such
Lender may have against the Swing Line Lender, the Borrower or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Revolving Credit Lenderβs obligation to make
Revolving Credit Advances pursuant to this Section 2.02(b) is subject to satisfaction of the
conditions set forth in Section 3.02. No funding of risk participations shall relieve or
otherwise impair the obligation of the Borrower to repay Swing Line Advances, together with
interest as provided herein.
(c) Anything in subSection (a) above to the contrary notwithstanding, (i) the Borrower may not
select Eurodollar Rate Advances for the initial Borrowing hereunder or for any Borrowing if the
aggregate amount of such Borrowing is less than $5,000,000 or if the obligation of the Lenders to
make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.09 or 2.10 and (ii) the
Revolving Credit Advances may not be outstanding as part of more than 15 separate Borrowings.
(d) Each Notice of Borrowing and each Notice of Swing Line Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on
or before the date specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any actual loss (excluding loss
of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as
part of such Borrowing when such Advance, as a result of such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from any Lender prior to the
date of any Borrowing that such Lender will not make available to the Administrative Agent such
Lenderβs ratable portion of such Borrowing, the Administrative
XxxxβRevolving Credit and Guaranty Agreement
46
Agent may assume that such Lender
has made such portion available to the Administrative Agent on the date of such Borrowing in
accordance with subSection (a) of this Section 2.02 and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a corresponding amount. If and
to the extent that such Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay or pay to the
Administrative Agent forthwith on demand such corresponding amount and to pay interest thereon, for
each day from the date such amount is made available to the Borrower until the date such amount is
repaid or paid to the Administrative
Agent, at (i) in the case of the Borrower, the interest rate applicable at such time under
Section 2.07 to Advances comprising such Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall pay to the Administrative Agent such corresponding amount, such
amount so paid shall constitute such Lenderβs Advance as part of such Borrowing for all purposes of
this Agreement.
(f) The failure of any Lender to make the Advance to be made by it shall not relieve any other
Lender of its obligation, if any, hereunder to make its Advance or make available on the date of
such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by it.
(i) Subject to the terms and conditions set forth herein, (A) each Issuing Bank agrees,
in reliance upon the agreements of the other Lenders set forth in this Section 2.03, (1)
from time to time on any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower
or any of its Subsidiaries, and to amend Letters of Credit previously issued by it, in
accordance with subSection (b) below, and (2) to honor drafts under the Letters of Credit;
and (B) the Lenders severally agree to participate in Letters of Credit issued for the
account of the Borrower or any of its Subsidiaries; provided that the Issuing Banks
shall not be obligated to issue any Letter of Credit, and no Lender shall be obligated to
participate in any Letter of Credit if as of the date of such issuance, (x) the Available
Amount for all Letters of Credit issued by such Issuing Bank would exceed the lesser of the
Letter of Credit Sublimit at such time and such Issuing Bankβs Letter of Credit Commitment
at such time, (y) the Available Amount of such Letter of Credit would exceed the Unused
Revolving Credit Commitment or (z) the sum of (1) the aggregate principal amount of all
Revolving Credit Advances plus Swing Line Advances and Letter of Credit Advances
outstanding at such time plus (2) the aggregate Available Amount of all Letters of
Credit outstanding at such time exceed the Borrowing Base at such time. Within the
foregoing limits, and subject to the terms and conditions hereof, the Borrowerβs ability to
obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during
the foregoing period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed. All Existing Letters of Credit issued
for the account of the Borrower or its Subsidiaries shall be
XxxxβRevolving Credit and Guaranty Agreement
47
deemed to have been issued
pursuant hereto, and from and after the Closing Date shall be subject to and governed by the
terms and conditions hereof.
(ii) No Issuing Bank shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any governmental authority or arbitrator shall by its
terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or
any law applicable to such Issuing Bank or any request or directive (whether or not having
the force of law) from any governmental authority with jurisdiction over such Issuing Bank
shall prohibit, or request that such Issuing Bank refrain from, the
issuance of letters of credit generally or such Letter of Credit in particular or shall
impose upon such Issuing Bank any unreimbursed loss, cost or expense which such Issuing Bank
in good xxxxx xxxxx material to it; (B) the expiry date of such requested Letter of Credit
would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit
Lenders have approved such expiry date; (C) the issuance of such Letter of Credit would
violate one or more policies of such Issuing Bank; or (D) such Letter of Credit is in an
initial amount less than $100,000 (unless such Issuing Bank agrees otherwise), or is to be
denominated in a currency other than U.S. dollars.
(iii) No Issuing Bank shall be under any obligation to amend any Letter of Credit if
(A) such Issuing Bank would have no obligation at such time to issue such Letter of Credit
in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the applicable Issuing Bank (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application, appropriately completed
and signed by a Responsible Officer of the Borrower or such Subsidiary for whose account
such Letter of Credit is to be issued. Such Letter of Credit Application must be received
by the applicable Issuing Bank and the Administrative Agent not later than 11:00 a.m. at
least two Business Days (or such later date and time as such Issuing Bank may agree in a
particular instance in its sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an initial issuance of a Letter
of Credit, such Letter of Credit Application shall specify in form and detail reasonably
satisfactory to the applicable Issuing Bank: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing thereunder; and (G)
such other matters as such Issuing Bank may reasonably require. In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter of Credit Application
shall specify in form and detail reasonably satisfactory to the applicable Issuing Bank (A)
the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall
be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as
such Issuing Bank may reasonably require.
XxxxβRevolving Credit and Guaranty Agreement
48
(ii) Promptly after receipt of any Letter of Credit Application, the applicable Issuing
Bank will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from the
Borrower and, if not, such Issuing Bank will provide the Administrative Agent with a copy
thereof. Upon receipt by such Issuing Bank of confirmation from the Administrative Agent
that the requested issuance or amendment is permitted in accordance with the terms hereof,
then, subject to the terms and conditions hereof, such Issuing Bank shall, on the requested
date, issue a Letter of Credit for the account of the
Borrower or the applicable Subsidiary or enter into the applicable amendment, as the
case may be, in each case in accordance with such Issuing Bankβs usual and customary
business practices. Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from such
Issuing Bank a risk participation in such Letter of Credit in an amount equal to the product
of such Lenderβs Pro Rata Share times the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the
applicable Issuing Bank will also deliver to the Borrower and the Administrative Agent a
true and complete copy of such Letter of Credit or amendment.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the applicable Issuing Bank shall notify the Borrower
and the Administrative Agent thereof. Not later than 11:00 a.m. on the Business Day
following any payment by the applicable Issuing Bank under a Letter of Credit, so long as
the Borrower has received notice of such drawing by 10:00 a.m. on such following Business
Day (each such date, an βHonor Dateβ), the Borrower shall reimburse such Issuing
Bank through the Administrative Agent in an amount equal to the amount of such drawing
(together with interest thereon at the rate set forth in Section 2.07 for Revolving Credit
Advances bearing interest at the Base Rate). If the Borrower fails to so reimburse the
applicable Issuing Bank by such time, the Administrative Agent shall promptly notify each
Revolving Credit Lender of the Honor Date, the amount of the unreimbursed drawing (the
βUnreimbursed Amountβ), and the amount of such Revolving Credit Lenderβs Pro Rata
Share thereof. In such event, the Borrower shall be deemed to have requested a Borrowing to
be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard
to the minimum and multiples specified in Section 2.02 for the principal amount of
Borrowings, but subject to the amount of the Unused Revolving Credit Commitments and the
conditions set forth in Section 3.02 (other than the delivery of a Notice of Borrowing).
Any notice given by an Issuing Bank or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(ii) Each Revolving Credit Lender (including a Revolving Credit Lender acting as
Issuing Bank) shall upon any notice pursuant to Section 2.03(c)(i) make funds
XxxxβRevolving Credit and Guaranty Agreement
49
available to
the Administrative Agent for the account of the applicable Issuing Bank at the
Administrative Agentβs Office in an amount equal to its Pro Rata Share of the Unreimbursed
Amount not later than 1:00 p.m. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each
Revolving Credit Lender that so makes funds available shall be deemed to have made a Letter
of Credit Advance to the Borrower in such amount. The Administrative Agent shall remit the
funds so received to the applicable Issuing Bank.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing because the conditions set forth in Section 3.02 cannot be satisfied or for any
other reason, the Borrower shall be deemed to have incurred from the applicable Issuing Bank
a Letter of Credit Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which Letter of Credit Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at the Default Rate. In such event, each Revolving
Credit Lenderβs payment to the Administrative Agent for the account of the applicable
Issuing Bank pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its
participation in such Letter of Credit Borrowing and shall constitute a Letter of Credit
Advance from such Revolving Credit Lender in satisfaction of its participation obligation
under this Section 2.03.
(iv) Until each Revolving Credit Lender funds its Revolving Credit Advance or Letter of
Credit Advance pursuant to this Section 2.03(c) to reimburse the applicable Issuing Bank for
any amount drawn under any Letter of Credit, interest in respect of such Revolving Credit
Lenderβs Pro Rata Share of such amount shall be solely for the account of such Issuing Bank.
(v) Each Revolving Credit Lenderβs obligation to make Letter of Credit Advances to
reimburse the applicable Issuing Bank for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense
or other right which such Revolving Credit Lender may have against such Issuing Bank, the
Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of
a Default, or (C) any other occurrence, event or condition, whether or not similar to any of
the foregoing. No such making of a Letter of Credit Advance shall relieve or otherwise
impair the obligation of the Borrower to reimburse the applicable Issuing Bank for the
amount of any payment made by such Issuing Bank under any Letter of Credit, together with
interest as provided herein.
(vi) If any Revolving Credit Lender fails to make available to the Administrative Agent
for the account of the applicable Issuing Bank any amount required to be paid by such
Revolving Credit Lender pursuant to the foregoing provisions of this Section 2.03(c) by the
time specified in Section 2.03(c)(ii), such Issuing Bank shall be entitled to recover from
such Revolving Credit Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the such Issuing Bank at a rate per
annum equal to the Federal Funds Rate from time to time in effect. A certificate of the
applicable Issuing Bank submitted to any Revolving Credit
XxxxβRevolving Credit and Guaranty Agreement
50
Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent
manifest error.
(i) At any time after any Issuing Bank has made a payment under any Letter of Credit
and has received from any Revolving Credit Lender such Revolving Credit Lenderβs Letter of
Credit Advance in respect of such payment in accordance with Section
2.03(c), if the Administrative Agent receives for the account of the applicable Issuing
Bank any payment in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of Cash Collateral applied
thereto by the Administrative Agent), the Administrative Agent will distribute to such
Revolving Credit Lender its Pro Rata Share thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Revolving Credit Lenderβs
Letter of Credit Advance was outstanding) in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of the
applicable Issuing Bank pursuant to Section 2.03(c)(i) is required to be returned under any
circumstances (including pursuant to any settlement entered into by such Issuing Bank in its
discretion), each Revolving Credit Lender shall pay to the Administrative Agent for the
account of such Issuing Bank its Pro Rata Share thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned by such Revolving Credit Lender, at a rate per annum equal to the Federal Funds
Rate from time to time in effect.
(e)
Obligations Absolute. The obligation of the Borrower to reimburse any Issuing
Bank for each drawing under each Letter of Credit and to repay each Letter of Credit Borrowing
shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or other right that the
Borrower may have at any time against any beneficiary or any transferee of such Letter of
Credit (or any Person for whom any such beneficiary or any such transferee may be acting),
such Issuing Bank or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;
XxxxβRevolving Credit and Guaranty Agreement
51
(iv) any payment by the Issuing Bank under such Letter of Credit against presentation
of a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by such Issuing Bank under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Borrowerβs
instructions or other irregularity, the Borrower will immediately notify the applicable Issuing
Bank. The Borrower shall be conclusively deemed to have waived any such claim against the
applicable Issuing Bank and its correspondents unless such notice is given as aforesaid.
(f)
Role of Issuing Bank. Each Revolving Credit Lender and the Borrower agree that,
in paying any drawing under a Letter of Credit, no Issuing Bank shall have any responsibility to
obtain any document (other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. None of the
Issuing Banks, any Agent-Related Person nor any of the respective correspondents, participants or
assignees of any Issuing Bank shall be liable to any Revolving Credit Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of the Revolving Credit
Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or Letter of Credit
Application. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit;
provided,
however, that
this assumption is not intended to, and shall not, preclude the Borrower from pursuing such rights
and remedies as it may have against the beneficiary or transferee at law or under any other
agreement. None of the Issuing Banks, any Agent-Related Person, nor any of the respective
correspondents, participants or assignees of any Issuing Bank, shall be liable or responsible for
any of the matters described in clauses (i) through (v) of Section 2.03(e);
provided,
however, that anything in such clauses to the contrary notwithstanding, the Borrower may
have a claim against an Issuing Bank, any related Agent-Related Person, any of their respective
correspondents, participants or assignees of such Issuing Bank or any Agent-Related Person, and
they may be liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves
were caused by such Issuing Bankβs, any such Agent-Related Personβs, or any of such respective
correspondents, participants or assignees of such Issuing Bank or of any Agent-Related Personβs
willful misconduct or gross negligence or such Issuing Bankβs willful failure to pay under any
Letter of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in
XxxxβRevolving Credit and Guaranty Agreement
52
limitation of the foregoing, the applicable Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and such Issuing Bank shall
not be responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(g)
Cash Collateral. Upon the request of the Administrative Agent, if, as of the
Letter of Credit Expiration Date, any Letter of Credit may for any reason remain outstanding and
partially or wholly undrawn, the Borrower shall immediately Cash Collateralize the then Outstanding
Amount of all L/C Obligations (in an amount equal to 105% of such Outstanding Amount determined as
of the date of such Letter of Credit Borrowing or the Letter of Credit Expiration Date, as the case
may be). For purposes hereof, βCash Collateralizeβ means to pledge and deposit with or deliver to
the Administrative Agent, for the benefit of the Issuing Banks and the Revolving Credit Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in
form and substance reasonably satisfactory to the Administrative Agent and the Issuing Banks (which
documents are hereby consented to by the Revolving Credit Lenders). Derivatives of such term have
corresponding meanings. The Borrower hereby grants to the Administrative Agent, for the benefit of
the Issuing Banks and the Revolving Credit Lenders, a security interest in all such cash, deposit
accounts and all balances therein and all proceeds of the foregoing. Such cash collateral shall be
maintained in the L/C Cash Collateral Account.
(h)
Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the
applicable Issuing Bank and the Borrower when a Letter of Credit is issued, (i) the rules of the
βInternational Standby Practices 1998β published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to
each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of Commerce (the
β
ICCβ) at the time of issuance (including the ICC decision published by the Commission on
Banking Technique and Practice on April 6, 1998 regarding the European single currency (euro))
shall apply to each commercial Letter of Credit.
(j)
Initial Issuing Banks. Until such time as an Initial Issuing Bank shall become a
Revolving Credit Lender hereunder such Initial Issuing Bank shall have no obligations under the
Loan Documents other than with respect to Existing Letters of Credit issued by such Initial Issuing
Bank.
Section 2.04
Repayment of Advances. (a)
Revolving Credit Advances. The
Borrower shall repay to the Administrative Agent for the ratable account of the Revolving Credit
Lenders on the Termination Date the aggregate outstanding principal amount of the Revolving Credit
Advances then outstanding.
XxxxβRevolving Credit and Guaranty Agreement
53
(b)
Swing Line Advances. The Borrower shall repay to the Administrative Agent for the
account of the Swing Line Lender and each other Revolving Credit Lender that has made a Swing Line
Advance the outstanding principal amount of each Swing Line Advance made by each of them on the
earlier of the maturity date specified in the applicable Notice of Swing Line Borrowing (which
maturity shall be no later than the seventh day after the requested date of such Borrowing) and the
Termination Date.
(c)
Letter of Credit Advances. The Borrower shall repay to the Administrative Agent
for the account of the Issuing Banks and each Revolving Credit Lender that has made a Letter of
Credit Advance the outstanding principal amount of each Letter of Credit Advance made by each of
them on the earlier of (i) the date of demand therefor and (ii) the Termination Date.
Section 2.05
Termination or Reduction of Commitments. (a)
Optional. The
Borrower may, upon at least two Business Daysβ notice to the Administrative Agent, terminate in
whole or reduce in part the unused portions of the Swing Line Facility and the Letter of Credit
Sublimit and the Unused Revolving Credit Commitments;
provided,
however, that each
partial reduction shall be in an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(i) The Letter of Credit Sublimit shall be automatically and permanently reduced from
time to time on the date of each reduction in the Revolving Credit Facility by the amount,
if any, by which the amount of the Letter of Credit Sublimit exceeds the Revolving Credit
Facility after giving effect to such reduction of the Revolving Credit Facility.
(ii) The Swing Line Facility shall be permanently reduced from time to time on the date
of each reduction in the Revolving Credit Facility by the amount, if any, by which the
amount of the Swing Line Facility exceeds the Revolving Credit Facility after giving effect
to such reduction of the Revolving Credit Facility.
(c)
Application of Commitment Reductions. Upon each reduction of the Revolving Credit
Facility pursuant to this Section 2.05, the Commitment of each of the Revolving Credit Lenders
shall be reduced by such Revolving Credit Lenderβs Pro Rata Share of the amount by which the
Revolving Credit Facility is reduced in accordance with the Lendersβ respective Revolving Credit
Commitments.
Section 2.06
Prepayments. (a)
Optional. The Borrower may, upon at least one
Business Dayβs notice to the Administrative Agent received not later than 11:00 A.M. (New York, New
York time) stating the proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding aggregate principal amount of Advances,
in whole or ratably in part, together with accrued interest to the date of such prepayment on the
aggregate principal amount prepaid;
provided,
however, that (i) each partial
prepayment shall be in an aggregate principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof or, if less, the aggregate outstanding principal amount of
XxxxβRevolving Credit and Guaranty Agreement
54
any Advance
and (ii) that no prepayment of Eurodollar Loans shall be permitted pursuant to this Section 2.06
other than on the last day of the Interest Period applicable thereto unless such prepayment is
accompanied by the payment of the amounts required by Section 10.04(c) if the applicable Lender has
provided the Borrower with adequate notice of the amount of the same.
(i) If at any time any Loan Party or any of its Subsidiaries shall receive Net Cash
Proceeds from (x) any Asset Sale or (y) any Recovery Event and, on a pro forma basis after
giving effect to such Asset Sale or Recovery Event, Availability is less than the
Availability Threshold Amount (the difference between such Availability and the Availability
Threshold Amount being the βAvailability Deficiency Amountβ), the Borrower shall,
within five Business Days after the date of receipt of such Net Cash Proceeds by such Loan
Party or any of its Subsidiaries, prepay an aggregate principal amount of outstanding
Advances (with no corresponding commitment reduction) equal to the lesser of (x) such Net
Cash Proceeds and (y) the Availability Deficiency Amount (such amount, the βRevolving
Facility Prepayment Amountβ).
(ii) The Borrower shall, on each Business Day, if applicable, prepay (with no
corresponding commitment reduction) an aggregate principal amount of the Revolving Credit
Advances comprising part of the same Borrowings, the Letter of Credit Advances and the Swing
Line Advances or deposit an amount in the Collateral Account in an amount equal to the
amount by which (A) the sum of (x) the aggregate principal amount of the Revolving Credit
Advances, the Letter of Credit Advances and the Swing Line Advances then outstanding
plus (y) the aggregate Available Amount of all Letters of Credit then outstanding
exceeds (B) the Revolving Credit Availability Amount; provided, however, so long as a
payment is made, in no event shall the Borrower be required to use the Net Cash Proceeds
received by a Foreign Subsidiary from an Asset Sale or Recovery Event to make such payment.
(iii) The Borrower shall, on each Business Day, if applicable, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an amount sufficient to
cause the aggregate amount on deposit in such L/C Cash Collateral Account to equal the
amount by which the aggregate Available Amount of all Letters of Credit then outstanding
exceeds the Letter of Credit Sublimit on such Business Day.
(iv) Prepayments of the Revolving Credit Facility made pursuant to clause (i) and (ii)
above shall be first applied to prepay Letter of Credit Advances then outstanding,
if any, until such Advances are paid in full, second applied to prepay Swing Line
Advances then outstanding until such Advances are paid in full, third applied
ratably to prepay Revolving Credit Advances then outstanding, if any, comprising part of the
same Borrowings until such Advances are paid in full and third, if required under Section
2.03(g), deposited in the L/C Cash Collateral Account; and, in the case of any prepayment of
the Revolving Credit Facility pursuant to clause (i) above, the amount remaining, if any,
from the Revolving Credit Facilityβs ratable portion of such Net Cash Proceeds after the
prepayment of the Letter of Credit Advances and the Revolving Credit Advances then
outstanding and any required cash collateralization of Letters of Credit
XxxxβRevolving Credit and Guaranty Agreement
55
then outstanding
may be retained by the Borrower for use in its business and operations in the ordinary
course. Upon the drawing of any Letter of Credit for which funds are on deposit in the L/C
Cash Collateral Account, such funds shall be applied to reimburse the applicable Issuing
Bank or Revolving Credit Lenders, as applicable.
(v) All prepayments under this subSection (b) shall be made together with accrued
interest to the date of such prepayment on the principal amount prepaid, and, if
any such prepayment is made on a day other than on the last day of the Interest Period
applicable thereto, such prepayment shall be accompanied by the payment of the amounts
required by Section 10.04(c) if the applicable Lender has provided the Borrower with
adequate notice of the amount of the same.
Section 2.07
Interest. (a)
Scheduled Interest. The Borrower shall pay
interest on each Revolving Credit Advance owing to each Lender from the date of such Revolving
Credit Advance until such principal amount shall be paid in full, at the following rates per annum:
(i)
Base Rate Advances. During such periods as such Advance is a Base Rate
Advance, a rate per annum equal at all times to the sum of (A) the Base Rate in effect from
time to time
plus (B) the Applicable Margin in effect from time to time, payable
quarterly in arrears on the first Business Day following each Fiscal Quarter during such
periods and upon repayment of such Advance.
(ii)
Eurodollar Rate Advances. During such periods as such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for
such Advance to the sum of (A) the Eurodollar Rate for such Interest Period for such Advance
plus (B) the Applicable Margin in effect from time to time, payable in arrears on the last
Business Day of such Interest Period and, if such Interest Period has a duration of more
than 90 days, every 90 days from the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
(b)
Default Interest. The Borrower shall pay interest, (i) upon the occurrence and
during the continuance of an Event of Default, on the unpaid principal amount of each Advance owing
to each Lender, payable in arrears on the dates referred to in clause (a) above and on demand, at a
rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on
such Advance pursuant to clause (a) and (ii) to the fullest extent permitted by law, on the amount
of any interest, fee or other amount payable hereunder that is not paid when due, from the date
such amount shall be due until such amount shall be paid in full, payable in arrears on the date
such amount shall be paid in full and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid on Advances pursuant to clause (a)(i) above.
(c)
Notice of Interest Rate. Promptly after receipt of a Notice of Borrowing pursuant
to Section 2.02(a), the Administrative Agent shall give notice to the Borrower and each Lender of
the interest rate determined by the Administrative Agent for purposes of clause (a) above.
XxxxβRevolving Credit and Guaranty Agreement
56
Section 2.08
Fees. (a)
Commitment Fees. The Borrower shall pay to the
Administrative Agent for the account of the Revolving Credit Lenders a commitment fee, from the
date hereof in the case of each such Initial Lender and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case of each other such
Lender until the Termination Date, payable in quarterly in arrears on the first Business Day
following each Fiscal Quarter and on the Termination Date, at the rate of 0.375% per annum on the
average daily unused portion of the Unused Revolving Credit Commitment of such Lender;
provided, however, that no commitment fee shall accrue on any of the Commitments of a
Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(i) The Borrower shall pay to the Administrative Agent for the account of each
Revolving Credit Lender a commission, payable quarterly in arrears on the first Business Day
of each Fiscal Quarter, on the earliest to occur of the full drawing, expiration,
termination or cancellation of any such Letter of Credit and on the Termination Date, on
such Revolving Credit Lenderβs Pro Rata Share of the average daily aggregate Available
Amount during such quarter of all Letters of Credit outstanding from time to time at a rate
per annum equal to the Applicable Margin for Eurodollar Rate Advances under the Revolving
Credit Facility.
(ii) The Borrower shall pay to the Issuing Banks, for their own account, (A) ratably, a
fronting fee, payable quarterly in arrears on the first Business Day following each Fiscal
Quarter and on the Termination Date, on the average daily Available Amount during such
quarter of all Letters of Credit, from the Closing Date until the Termination Date, at the
rate of 0.25% per annum and (B) the customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the Issuing Banks.
(c)
Initial Lender Fees. The Borrower shall pay to the Administrative Agent for the
account of the Initial Lenders (and their respective Affiliates) such other fees as may be from
time to time agreed among the Borrower and the Initial Lenders (and their respective Affiliates).
Section 2.09
Conversion of Advances. (a)
Optional. The Borrower may on any
Business Day, upon notice given to the Administrative Agent not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the date of the proposed Conversion and subject to
the provisions of Section 2.10, Convert all or any portion of the Advances of one Type comprising
the same Borrowing into Advances of the other Type;
provided,
however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made only on the last day
of an Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum amount specified in
Section 2.02(c), no Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(c) and each Conversion of Advances comprising part of the same
Borrowing shall be made ratably among the Lenders in accordance with their Commitments. Each such
notice of Conversion shall, within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Advances to be Converted and (iii) if such
XxxxβRevolving Credit and Guaranty Agreement
57
Conversion is into Eurodollar Rate
Advances, the duration of the initial Interest Period for such Advances. Each notice of Conversion
shall be irrevocable and binding on the Borrower.
(i) On the date on which the aggregate unpaid principal amount of Eurodollar Rate
Advances comprising any Borrowing shall be reduced, by payment or prepayment
or otherwise, to less than $5,000,000, such Advances shall, at the end of the
applicable Interest Period, automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the definition of
βInterest Periodβ in Section 1.01, the Administrative Agent will forthwith so notify the
Borrower and the Lenders, whereupon each such Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance.
(iii) Upon the occurrence and during the continuance of any Event of Default, (x) each
Eurodollar Rate Advance will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (y) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
Section 2.10
Increased Costs, Etc. (a) If, due to either (i) the introduction of or
any change in or in the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority (whether or not having
the force of law), there shall be any increase in the cost to any Lender Party of agreeing to make
or of making, funding or maintaining Eurodollar Rate Advances or of agreeing to issue or of issuing
or maintaining or participating in Letters of Credit or of agreeing to make or of making or
maintaining Letter of Credit Advances (excluding, for purposes of this Section 2.10, any such
increased costs resulting from (x) Taxes or Other Taxes (as to which Section 2.12 shall govern) and
(y) changes in the basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such Lender Party is
organized or has its Applicable Lending Office or any political subdivision thereof), then the
Borrower shall from time to time, upon demand by such Lender Party (with a copy of such demand to
the Administrative Agent), pay to the Administrative Agent for the account of such Lender Party
additional amounts sufficient to compensate such Lender Party for such increased cost;
provided,
however, that a Lender Party claiming additional amounts under this
Section 2.10(a) agrees to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office if the making of such a
designation would avoid the need for, or reduce the amount of, such increased cost that may
thereafter accrue and would not, in the reasonable judgment of such Lender Party, be otherwise
disadvantageous to such Lender Party. A certificate as to the amount of such increased cost,
submitted to the Borrower by such Lender Party, shall be conclusive and binding for all purposes,
absent manifest error.
XxxxβRevolving Credit and Guaranty Agreement
58
(b) If any Lender Party determines that compliance with any law or regulation or any guideline
or request from any central bank or other governmental authority (whether or not having the force
of law) affects or would affect the amount of capital required or expected to be maintained by such
Lender Party or any corporation controlling such Lender Party and that the amount of such capital
is increased by or based upon the existence of such Lender Partyβs commitment to lend or to issue
or participate in Letters of Credit hereunder and other commitments of such type or the issuance or
maintenance of or participation in the Letters of Credit (or similar contingent obligations), then,
upon demand by such Lender Party or such
corporation (with a copy of such demand to the Administrative Agent), the Borrower shall pay
to the Administrative Agent for the account of such Lender Party, from time to time as specified by
such Lender Party, additional amounts sufficient to compensate such Lender Party in the light of
such circumstances, to the extent that such Lender Party reasonably determines such increase in
capital to be allocable to the existence of such Lender Partyβs commitment to lend or to issue or
participate in Letters of Credit hereunder or to the issuance or maintenance of or participation in
any Letters of Credit. A certificate as to such amounts submitted to the Borrower by such Lender
Party shall be conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances, the Required Lenders notify the
Administrative Agent that the Eurodollar Rate for any Interest Period for such Advances will not
adequately reflect the cost to such Lenders of making, funding or maintaining their Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall forthwith so notify the Borrower
and the Lenders, whereupon (i) each such Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the Borrower that such Lenders have
determined that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the introduction of or any
change in or in the interpretation of any law or regulation shall make it unlawful, or any central
bank or other governmental authority shall assert that it is unlawful, for any Lender or its
Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to continue to fund or maintain Eurodollar Rate Advances hereunder, then, on notice thereof and
demand therefor by such Lender to the Borrower through the Administrative Agent, (i) each
Eurodollar Rate Advance will automatically, upon such demand, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances
shall be suspended until the Administrative Agent shall notify the Borrower that such Lender has
determined that the circumstances causing such suspension no longer exist; provided,
however, that, before making any such demand, such Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to designate a
different Eurodollar Lending Office if the making of such a designation would allow such Lender or
its Eurodollar Lending Office to continue to perform its obligations to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances and would not, in the judgment
of such Lender, be otherwise disadvantageous to such Lender.
XxxxβRevolving Credit and Guaranty Agreement
59
(a) The Borrower shall make each payment hereunder and under the Notes, irrespective of any
right of counterclaim or set-off (except as otherwise provided in Section 2.15), not later than
11:00 A.M. (New York, New York time) on the day when due (or, in the case of payments made by a
Guarantor pursuant to Section 8.01, on the date of demand therefor) in U.S. dollars to the
Administrative Agent at the Administrative Agentβs Account in same day funds. The Administrative
Agent will promptly thereafter cause like funds to be distributed (i) if such payment by the
Borrower is in respect of principal, interest, commitment fees or any other Obligation then payable
hereunder and under the Notes to more than one Lender Party, to such
Lender Parties for the account of their respective Applicable Lending Offices ratably in
accordance with the amounts of such respective Obligations then payable to such Lender Parties and
(ii) if such payment by the Borrower is in respect of any Obligation then payable hereunder to one
Lender Party, to such Lender Party for the account of its Applicable Lending Office, in each case
to be applied in accordance with the terms of this Agreement. Upon its acceptance of an Assignment
and Acceptance and recording of the information contained therein in the Register pursuant to
Section 10.07(d), from and after the effective date of such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder and under the Notes in respect of the
interest assigned thereby to the Lender Party assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such payments for periods prior
to such effective date directly between themselves.
(b) If the Administrative Agent receives funds for application to the Obligations under the
Loan Documents under circumstances for which the Loan Documents do not specify the Advances to
which, or the manner in which, such funds are to be applied, the Administrative Agent may, but
shall not be obligated to, elect to distribute such funds to each Lender Party ratably in
accordance with such Lender Partyβs proportionate share of the principal amount of all outstanding
Advances and the Available Amount of all Letters of Credit then outstanding, in repayment or
prepayment of such of the outstanding Advances or other Obligations owed to such Lender Party, and
for application to such principal installments, as the Administrative Agent shall direct.
(c) The Borrower hereby authorizes each Lender Party, if and to the extent payment owed to
such Lender Party is not made when due hereunder or, in the case of a Lender, under the Note held
by such Lender, to charge from time to time against any or all of the Borrowerβs accounts with such
Lender Party any amount so due. Each of the Lender Parties hereby agrees to notify the Borrower
promptly after any such setoff and application shall be made by such Lender Party;
provided, however, that the failure to give such notice shall not affect the
validity of such charge.
(d) All computations of interest based on the Base Rate, of fees and Letter of Credit
commissions shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurodollar Rate or the Federal Funds
Rate shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day) occurring in the
period for which such interest, fees or commissions are payable. Each determination by the
Administrative Agent of an interest rate, fee or commission hereunder shall be conclusive and
binding for all purposes, absent manifest error.
XxxxβRevolving Credit and Guaranty Agreement
60
(e) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest or
commitment fee, as the case may be; provided, however, that, if such extension
would cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding Business Day.
(f) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to any Lender Party hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon
such assumption, cause to be distributed to each such Lender Party on such due date an amount equal
to the amount then due such Lender Party. If and to the extent the Borrower shall not have so made
such payment in full to the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender Party together with
interest thereon, for each day from the date such amount is distributed to such Lender Party until
the date such Lender Party repays such amount to the Administrative Agent, at the Federal Funds
Rate.
Section 2.12
Taxes. (a) Except as otherwise provided herein, any and all payments by
any Loan Party to or for the account of any Lender Party or any Agent hereunder or under any other
Loan Document shall be made, in accordance with Section 2.11 or the applicable provisions of such
other Loan Document, if any, free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender Party and each Agent, (x) taxes, levies,
imposts, deductions, charges or withholdings that are imposed on or measured by its overall net
income and franchise taxes imposed in lieu thereof by the United States of America or by the state
or foreign jurisdiction or any political subdivision thereof under the laws of which such Lender
Party or such Agent, as the case may be, is organized or, in the case of each Lender Party, such
Lender Partyβs Applicable Lending Office is located or (y) any branch profit taxes imposed by the
United States of America or any similar tax imposed by any other jurisdiction in which such
Applicable Lending Office is located (all such non excluded taxes, levies, imposts, deductions,
charges, withholdings being hereinafter referred to as β
Taxesβ). If any Loan Party shall
be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any
other Loan Document to any Lender Party or any Agent, subject to Section 2.12(f), (i) the sum
payable by such Loan Party shall be increased as may be necessary so that after such Loan Party and
the Administrative Agent have made all required deductions (including deductions applicable to
additional sums payable under this Section 2.12) such Lender Party or such Agent, as the case may
be, receives an amount equal to the sum it would have received had no such deductions been made,
(ii) such Loan Party shall make all such deductions and (iii) such Loan Party shall pay the full
amount deducted to the relevant taxing authority or other authority in accordance with applicable
law.
(b) In addition, each Loan Party shall pay any present or future stamp, documentary, excise,
property, intangible, mortgage recording or similar taxes, charges or levies that arise from any
payment made by such Loan Party hereunder or under any other Loan
XxxxβRevolving Credit and Guaranty Agreement
61
Documents or from the execution, delivery or registration of, performance under, or otherwise
with respect to, this Agreement or the other Loan Documents (hereinafter referred to as βOther
Taxesβ).
(c) Except as otherwise provided herein, the Loan Parties shall indemnify each Lender Party
and each Agent for and hold them harmless against the full amount of Taxes and Other Taxes imposed
on or paid by such Lender Party or such Agent (as the case may be) and any liability (including
penalties, additions to tax, interest and reasonable expenses) arising therefrom or with respect
thereto, but excluding penalties, interest or other expenses to the extent attributable to the
gross negligence or willful misconduct of the Person claiming such indemnity. This indemnification
shall be made within 30 days from the date such Lender Party or such Agent (as the case may be)
makes written demand therefor, which written demand shall be accompanied by copies of the
applicable documentation evidencing the amount of such taxes.
(d) Within 30 days after the date of any payment of Taxes, the appropriate Loan Party shall
furnish to the Administrative Agent, at its address referred to in Section 10.02, the original or a
certified copy of a receipt evidencing such payment, to the extent such a receipt is issued
therefor, or other written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent. In the case of any payment hereunder or under the other Loan Documents by or
on behalf of a Loan Party through an account or branch outside the United States or by or on behalf
of a Loan Party by a payor that is not a United States person, if such Loan Party determines that
no Taxes are payable in respect thereof, such Loan Party shall furnish, or shall cause such payor
to furnish, to the Administrative Agent, at such address, an opinion of counsel acceptable to the
Administrative Agent stating that such payment is exempt from Taxes. For purposes of subsections
(d) and (e) of this Section 2.12, the terms βUnited States personβ shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction outside the United States
shall, on or prior to the date of its execution and delivery of this Agreement in the case of each
Initial Lender Party, on the date of the Assignment and Acceptance pursuant to which it becomes a
Lender Party in the case of each other Lender Party, and at the time or times prescribed by
applicable law, or from time to time thereafter as reasonably requested in writing by the Borrower
(but only so long thereafter as such Lender Party remains lawfully able to do so), provide each of
the Administrative Agent and Borrower with two original properly completed Internal Revenue Service
Forms W-8BEN, W-8IMY or W-8ECI as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender Party is exempt from or entitled to a reduced
rate of United States withholding tax on payments pursuant to this Agreement or the other Loan
Documents or, in the case of a Lender Party that is relying on the portfolio interest exemption,
certifying that such Lender Party is a foreign corporation, partnership, estate or trust. If the
forms provided by a Lender Party at the time such Lender Party first becomes a party to this
Agreement indicate a United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes unless and until such Lender Party provides
the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at such
lesser rate only shall be considered excluded from Taxes for periods governed by such forms;
provided, however, that if, at the effective date of the Assignment and Acceptance pursuant to
which a Lender Party becomes a party to this Agreement, the Lender Party assignor was entitled to
payments under subSection (a)
XxxxβRevolving Credit and Guaranty Agreement
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of this Section 2.12 in respect of United States withholding tax with respect to interest paid
at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in Taxes) United States
withholding tax, if any, applicable with respect to the Lender Party assignee on such date. If any
form or document referred to in this subSection (e) requires the disclosure of information, other
than information necessary to compute the tax payable and information required on the date hereof
by Internal Revenue Service Form X-0XXX, X-0XXX, X-0XXX or any successor, or the related
certificate described above, that the applicable Lender Party reasonably considers to be
confidential, such Lender Party shall give notice thereof to the Borrower and shall not be
obligated to include in such form or document such confidential information.
(f) For any period with respect to which a Lender Party has failed to provide the Borrower
with the appropriate form, certificate or other document described in subsection (e) above (other
than if such failure is due to a change in law, or in the interpretation or application thereof,
occurring after the date on which a form, certificate or other document originally was required to
be provided or if such form, certificate or other document otherwise is not required under
subsection (e) above), such Lender Party shall not be entitled to increased payment or
indemnification under subsection (a) or (c) of this Section 2.12 with respect to taxes imposed by
the United States by reason of such failure; provided, however, that should a Lender Party become
subject to taxes because of its failure to deliver a form, certificate or other document required
hereunder, the Loan Parties shall take such steps as such Lender Party shall reasonably request to
assist such Lender Party to recover such taxes.
(g) If any Lender Party determines, in its sole discretion, that it has actually and finally
realized by reason of the refund of or credit against any Taxes paid or reimbursed by any Loan
Party pursuant to subsection (a) or (c) above in respect of payments under the Loan Documents, a
current monetary benefit that it would otherwise not have obtained, and that would result in the
total payments under this Section 2.12 exceeding the amount needed to make such Lender Party whole,
such Lender Party shall pay to the Borrower or other Loan Party, as the case may be, with
reasonable promptness following the date on which it actually realizes such benefit, an amount
equal to the lesser of the amount of such benefit or the amount of such excess, net of all
out-of-pocket expenses in securing such refund.
Section 2.13
Sharing of Payments, Etc. If any Lender Party shall obtain at any time
any payment, whether voluntary, involuntary, through the exercise of any right of set off, or
otherwise (other than pursuant to Section 2.10, 2.12, 10.04 or 10.07), (a) on account of
Obligations due and payable to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of such Obligations due
and payable to such Lender Party at such time (other than pursuant to Section 2.10, 2.12, 10.04 or
10.07) to (ii) the aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the Obligations due and
payable to all Lender Parties hereunder and under the Notes at such time obtained by all the Lender
Parties at such time or (b) on account of Obligations owing (but not due and payable) to such
Lender Party hereunder and under the Notes at such time (other than pursuant to Section 2.10, 2.12,
10.04 or 10.07) in excess of its ratable share (according to the proportion of (i) the amount of
such Obligations owing to such Lender Party at such time (other than pursuant to Section 2.10,
2.12, 10.04 or 10.07) to (ii) the aggregate amount of the Obligations owing (but
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not due and payable) to all Lender Parties hereunder and under the Notes at such time) of payments
on account of the Obligations owing (but not due and payable) to all Lender Parties hereunder and
under the Notes at such time obtained by all of the Lender Parties at such time, such Lender Party
shall forthwith purchase from the other Lender Parties such participations in the Obligations due
and payable or owing to them, as the case may be, as shall be necessary to cause such purchasing
Lender Party to share the excess payment ratably with each of them; provided, however, that, if all
or any portion of such excess payment is thereafter recovered from such purchasing Lender Party,
such purchase from each other Lender Party shall be rescinded and such other Lender Party shall
repay to the purchasing Lender Party the purchase price to the extent of such Lender Partyβs
ratable share (according to the proportion of (i) the purchase price paid to such Lender Party to
(ii) the aggregate purchase price paid to all Lender Parties) of such recovery together with an
amount equal to such Lender Partyβs ratable share (according to the proportion of (i) the amount of
such other Lender Partyβs required repayment to (ii) the total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable by the purchasing Lender
Party in respect of the total amount so recovered. The Borrower agrees that any Lender Party so
purchasing a participation from another Lender Party pursuant to this Section 2.13 may, to the
fullest extent permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender Party were the direct
creditor of the Borrower in the amount of such participation.
(a) The proceeds of the Revolving Credit Advances, the Swing Line Advances and the Letters of
Credit shall only be utilized to provide financing for working capital, letters of credit, capital
expenditures and other general corporate purposes of the Borrower and the Guarantors. Subject to
Availability, Revolving Credit Advances made after the Closing Date may only be used, (i) (x) to
replace or backstop letters of credit issued and outstanding under the DIP Credit Agreement or (y)
to migrate the Existing Letters of Credit from the DIP Credit Agreement to the Revolving Credit
Facility and (ii) at the Borrowerβs discretion, up to an amount equal to any financing shortfall
reflecting upfront fees or original issue discount in respect of the gross cash proceeds expected
to be received from the Term Facility on the Closing Date.
(b)
Transactions with CNAI. Borrower will not use any of the proceeds of the
Revolving Credit Advances, the Swing Line Advances and the Letters of Credit, directly or
indirectly, for the purpose of (i) purchasing an asset from a CNAI as principal, (ii) purchasing a
security underwritten by CNAI, (iii) repaying principal of, or interest or fees on, any extension
of credit made by CNAI, (iv) posting collateral to secure its obligations under any transaction
with CNAI or (v) making any payment for services provided by CNAI.
Section 2.15
Defaulting Lenders. (a) In the event that, at any time, (i) any Lender
Party shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Advance to
the Borrower and (iii) the Borrower shall be required to make any payment hereunder or under any
other Loan Document to or for the account of such Defaulting Lender, then the Borrower may, to the
fullest extent permitted by applicable law, set off and otherwise apply the Obligation of the
Borrower to make such payment to or for the account of such Defaulting Lender against the
obligation of such Defaulting Lender to make such Defaulted
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Advance. In the event that, on any date, the Borrower shall so set off and otherwise apply
its obligation to make any such payment against the obligation of such Defaulting Lender to make
any such Defaulted Advance on or prior to such date, the amount so set off and otherwise applied by
the Borrower shall constitute for all purposes of this Agreement and the other Loan Documents an
Advance by such Defaulting Lender made on the date under the Facility pursuant to which such
Defaulted Advance was originally required to have been made pursuant to Section 2.01. Such Advance
shall be considered, for all purposes of this Agreement, to comprise part of the Borrowing in
connection with which such Defaulted Advance was originally required to have been made pursuant to
Section 2.01, even if the other Advances comprising such Borrowing shall be Eurodollar Rate
Advances on the date such Advance is deemed to be made pursuant to this subSection (a). The
Borrower shall notify the Administrative Agent at any time the Borrower exercises its right of
set-off pursuant to this subSection (a) and shall set forth in such notice (A) the name of the
Defaulting Lender and the Defaulted Advance required to be made by such Defaulting Lender and (B)
the amount set off and otherwise applied in respect of such Defaulted Advance pursuant to this
subSection (a). Any portion of such payment otherwise required to be made by the Borrower to or
for the account of such Defaulting Lender which is paid by the Borrower, after giving effect to the
amount set off and otherwise applied by the Borrower pursuant to this subSection (a), shall be
applied by the Administrative Agent as specified in subSection (b) or (c) of this Section 2.15.
(b) In the event that, at any time, (i) any Lender Party shall be a Defaulting Lender, (ii)
such Defaulting Lender shall owe a Defaulted Amount to the Administrative Agent or any of the other
Lender Parties and (iii) the Borrower shall make any payment hereunder or under any other Loan
Document to the Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lender Parties and to the
fullest extent permitted by applicable law, apply at such time the amount so paid by the Borrower
to or for the account of such Defaulting Lender to the payment of each such Defaulted Amount to the
extent required to pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date, the amount so
applied by the Administrative Agent shall constitute for all purposes of this Agreement and the
other Loan Documents payment, to such extent, of such Defaulted Amount on such date. Any such
amount so applied by the Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Lender Parties, ratably in accordance with
the respective portions of such Defaulted Amounts payable at such time to the Administrative Agent
and such other Lender Parties and, if the amount of such payment made by the Borrower shall at such
time be insufficient to pay all Defaulted Amounts owing at such time to the Administrative Agent
and the other Lender Parties, in the following order of priority:
(i) first, to the Administrative Agent for any Defaulted Amount then owing to the
Administrative Agent in its capacity as Administrative Agent; and
(ii) second, to the Issuing Banks and the Swing Line Lender for any Defaulted Amounts
then owing to them, in their capacities as such, ratably in accordance with such respective
Defaulted Amounts then owing to the Issuing Banks and the Swing Line Lender; and
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(iii) third, to any other Lender Parties for any Defaulted Amounts then owing to such
other Lender Parties, ratably in accordance with such respective Defaulted Amounts then
owing to such other Lender Parties.
Any portion of such amount paid by the Borrower for the account of such Defaulting Lender
remaining, after giving effect to the amount applied by the Administrative Agent pursuant to this
subSection (b), shall be applied by the Administrative Agent as specified in subSection (c) of this
Section 2.15.
(c) In the event that, at any time, (i) any Lender Party shall be a Defaulting Lender, (ii)
such Defaulting Lender shall not owe a Defaulted Advance or a Defaulted Amount and (iii) the
Borrower, the Administrative Agent or any other Lender Party shall be required to pay or distribute
any amount hereunder or under any other Loan Document to or for the account of such Defaulting
Lender, then the Borrower or such other Lender Party shall pay such amount to the Administrative
Agent to be held by the Administrative Agent, to the fullest extent permitted by applicable law, in
escrow or the Administrative Agent shall, to the fullest extent permitted by applicable law, hold
in escrow such amount otherwise held by it. Any funds held by the Administrative Agent in escrow
under this subSection (c) shall be deposited by the Administrative Agent in an account with
Citibank, N.A., in the name and under the control of the Administrative Agent, but subject to the
provisions of this subSection (c). The terms applicable to such account, including the rate of
interest payable with respect to the credit balance of such account from time to time, shall be
Citibank, N.A.βs standard terms applicable to escrow accounts maintained with it. Any interest
credited to such account from time to time shall be held by the Administrative Agent in escrow
under, and applied by the Administrative Agent from time to time in accordance with the provisions
of, this subSection (c). The Administrative Agent shall, to the fullest extent permitted by
applicable law, apply all funds so held in escrow from time to time to the extent necessary to make
any Advances required to be made by such Defaulting Lender and to pay any amount payable by such
Defaulting Lender hereunder and under the other Loan Documents to the Administrative Agent or any
other Lender Party, as and when such Advances or amounts are required to be made or paid and, if
the amount so held in escrow shall at any time be insufficient to make and pay all such Advances
and amounts required to be made or paid at such time, in the following order of priority:
(i) first, to the Administrative Agent for any amount then due and payable by such
Defaulting Lender to the Administrative Agent hereunder in its capacity as Administrative
Agent;
(ii) second, to the Issuing Banks and the Swing Line Lender for any amounts then due
and payable to them hereunder, in their capacities as such, by such Defaulting Lender,
ratably in accordance with such respective amounts then due and payable to the Issuing Banks
and the Swing Line Lender;
(iii) third, to any other Lender Parties for any amount then due and payable by such
Defaulting Lender to such other Lender Parties hereunder, ratably in accordance with such
respective amounts then due and payable to such other Lender Parties; and
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(iv) fourth, to the Borrower for any Advance then required to be made by such
Defaulting Lender pursuant to a Commitment of such Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any time, cease to be
a Defaulting Lender, any funds held by the Administrative Agent in escrow at such time with respect
to such Lender Party shall be distributed by the Administrative Agent to such Lender Party and
applied by such Lender Party to the Obligations owing to such Lender Party at such time under this
Agreement and the other Loan Documents ratably in accordance with the respective amounts of such
Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this Section 2.15 are in
addition to other rights and remedies that the Borrower may have against such Defaulting Lender
with respect to any Defaulted Advance and that the Administrative Agent or any Lender Party may
have against such Defaulting Lender with respect to any Defaulted Amount.
Section 2.16
Evidence of Debt. (a) The Advances made by each Lender shall be
evidenced by one or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be conclusive absent manifest error of the amount of the Advances made
by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or
any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lenderβs Advances in addition to such
accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date,
amount and maturity of its Advances and payments with respect thereto.
(b) In addition to the accounts and records referred to in subSection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters of Credit. In the
event of any conflict between the accounts and records maintained by the Administrative Agent and
the accounts and records of any Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.
(a) On or prior to the Closing Date, the Borrower shall
(i) deliver to the Administrative Agent a schedule of all DDAs maintained by the Loan
Parties, which schedule includes, with respect to each depository (A) the name
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and address of such depository, (B) the account number(s) maintained with such
depository and (C) a contact person at such depository; and
(ii) enter into a blocked account agreement (each, a βBlocked Account
Agreementβ), satisfactory in form and substance to the Administrative Agent in its
reasonable discretion, with respect to each Concentration Account existing as of the Closing
Date (other than any Concentration Account maintained with the Collateral Agent);
provided that to the extent that the Collateral Agent has been granted control, as
determined by the Collateral Agent in its sole discretion, with respect to the Existing Accounts,
the Loan Parties are not required to comply with the foregoing clause (a).
(b) Each Blocked Account Agreement or such other account control agreement, if applicable, for
each Concentration Account shall require, during the continuance of a Cash Control Trigger Event
(and delivery of notice thereof from the Collateral Agent), the ACH or wire transfer on each
Business Day of all available cash receipts held in the Concentration Account to a concentration
account maintained by the Administrative Agent at Citibank, N.A. (the βAgent Concentration
Accountβ).
(c) If (i) at any time during the continuance of a Cash Control Trigger Event, any cash or
Cash Equivalents owned by a Loan Party are deposited in any account (other than an Excluded
Account), or held or invested in any manner (other than (x) in the Concentration Account that is
subject to the Blocked Account Agreement, (y) in a Concentration Account that is maintained with
the Collateral Agent or (z) a DDA which is swept daily to a Concentration Account subject to a
Blocked Account Agreement), or (ii) at any time, a Concentration Account shall cease to be subject
to a Blocked Account Agreement, the applicable Loan Party shall as soon as practicable furnish the
Collateral Agent with written notice thereof and the Administrative Agent may require such Loan
Party to close such account and have any such funds transferred to a Concentration Account which is
subject to a Blocked Account Agreement. In addition to the foregoing, during the continuance of a
Cash Control Trigger Event, the Loan Parties shall, upon the request of the Administrative Agent,
provide such Agent with an accounting of the contents of the Concentration Accounts, which shall
identify, to the extent practicable, any proceeds from Term Facility Collateral which were
deposited into any Loan Party Concentration Account and swept to the Agent Concentration Account.
Upon the receipt of (x) the contents of such Loan Party Concentration Accounts and (y) such
accounting, the Administrative Agent agrees to promptly remit to the Collateral Agent such proceeds
of Term Facility Collateral received by the Administrative Agent for application in accordance with
the Intercreditor Agreement.
(d) A Loan Party may close DDAs or a Concentration Account, maintain existing DDAs or
Concentration Accounts and/or open new DDAs or Concentration Accounts, subject to the execution and
delivery to the Collateral Agent of appropriate Blocked Account Agreements with respect to each
Concentration Account (except with respect to any Concentration Account maintained with the
Collateral Agent) consistent with the provisions of this Section 2.17 and otherwise reasonably
satisfactory to the Administrative Agent. The applicable Loan Party shall furnish the
Administrative Agent with prior written notice of its
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intention to open or close a Concentration Account and the Administrative Agent shall promptly
notify such Loan Party as to whether the Administrative Agent shall require a Blocked Account
Agreement with the Person with whom such account will be maintained.
(e) The Loan Parties may also maintain one or more disbursement accounts which shall be used
by the Loan Parties solely for disbursements and payments (including payroll) in the ordinary
course of business or as otherwise permitted hereunder (any account so used, a βDisbursement
Accountβ).
(f) The Agent Concentration Account shall at all times be under the sole dominion and control
of the Administrative Agent. Each Loan Party hereby acknowledges and agrees that (i) it has no
right of withdrawal from the Agent Concentration Account, (ii) the funds on deposit in the Agent
Concentration Account shall at all times continue to be collateral security for all of the Secured
Obligations, and (iii) the funds on deposit in the Agent Concentration Account shall be applied as
provided in this Agreement. In the event that, notwithstanding the provisions of this Section
2.17, during the continuance of a Cash Control Trigger Event, a Loan Party receives or otherwise
has dominion and control of any such proceeds or collections, such proceeds and collections shall
be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with any
of such Loan Partyβs other funds or deposited in any account of such Loan Party and shall promptly
be deposited into a Concentration Account or dealt with in such other fashion as such Loan Party
may be instructed by the Administrative Agent.
(g) Any amounts remaining in the Agent Concentration Account at any time when all of the
Advances (whether then due or not) and all of the other Obligations under the Loan Documents then
due have been and remain fully repaid shall, subject to the requirements under the Term Facility
Loan Documents, be remitted to the primary Concentration Account of the Borrower maintained with
the Administrative Agent.
(h) The Collateral Agent shall promptly (but in any event within two (2) Business Days)
furnish written notice to each Person with whom a Concentration Account is maintained when a Cash
Control Trigger Event is no longer continuing for purposes of this Agreement.
(i) Subject to Section 2.17(c), any amounts received in the Agent Concentration Account shall
be applied to the payment (without a corresponding reduction of Commitments) of all of the Advances
(whether then due or not) and all of the other Obligations under the Loan Documents (other than
contingent obligations) (whether then due or not) in the order provided in Section 21(b) of the
Revolving Facility Security Agreement (with all Advances deemed due for purposes thereof).
(j) The following shall apply to deposits and payments under and pursuant to this Agreement:
(i) funds shall be deemed to have been deposited to the Agent Concentration Account on
the Business Day on which deposited, provided that such deposit is available to the
Administrative Agent by 4:00 p.m. on that Business Day (except that if the Obligations are
being paid in full, by 2:00 p.m. on that Business Day);
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69
(ii) funds paid to the Administrative Agent, other than by deposit to the Agent
Concentration Account, shall be deemed to have been received on the Business Day when they
are good and collected funds, provided that such payment is available to the Administrative
Agent by 4:00 p.m. on that Business Day (except that if the Obligations are being paid in
full, by 2:00 p.m. on that Business Day); and
(iii) if a deposit to the Agent Concentration Account or payment is not available to
the Administrative Agent until after 4:00 p.m. on a Business Day, such deposit or payment
shall be deemed to have been made at 9:00 a.m. on the then next Business Day.
Section 2.18 [Reserved].
Section 2.19 [Reserved].
Section 2.20
Replacement of Certain Lenders. In the event a Lender (β
Affected
Lenderβ) shall have (i) become a Defaulting Lender under Section 2.15, (ii) requested
compensation from the Borrowers under Section 2.12 with respect to Taxes or Other Taxes or with
respect to increased costs or capital or under Section 2.10 or other additional costs incurred by
such Lender which, in any case, are not being incurred generally by the other Lenders, or (iii)
delivered a notice pursuant to Section 2.10(d) claiming that such Lender is unable to extend
Eurodollar Rate Advances to the Borrower for reasons not generally applicable to the other Lenders,
then, in any case, the Borrower or the Administrative Agent may make written demand on such
Affected Lender (with a copy to the Administrative Agent in the case of a demand by the Borrower
and a copy to the Borrower in the case of a demand by the Administrative Agent) for the Affected
Lender to assign, and such Affected Lender shall use commercially reasonable efforts to assign
pursuant to one or more duly executed Assignments and Acceptances 5 Business Days after the date of
such demand, to one or more financial institutions that comply with the provisions of Section 10.07
which the Borrower or the Administrative Agent, as the case may be, shall have engaged for such
purpose (β
Replacement Lenderβ), all of such Affected Lenderβs rights and obligations under
this Agreement and the other Loan Documents (including, without limitation, its Commitment, all
Advances owing to it, all of its participation interests in existing Letters of Credit, and its
obligation to participate in additional Letters of Credit hereunder) in accordance with Section
10.07. The Administrative Agent is authorized to execute one or more of such Assignments and
Acceptances as attorney-in-fact for any Affected Lender failing to execute and deliver the same
within 5 Business Days after the date of such demand. Further, with respect to such assignment,
the Affected Lender shall have concurrently received, in cash, all amounts due and owing to the
Affected Lender hereunder or under any other Loan Document; provided that upon such Affected
Lenderβs replacement, such Affected Lender shall cease to be a party hereto but shall continue to
be entitled to the benefits of Sections 2.10 and 10.04, as well as to any fees accrued for its
account hereunder and not yet paid, and shall continue to be obligated under Section 7.07 with
respect to losses, obligations, liabilities, damages, penalties, actions, judgments, costs,
expenses or disbursements for matters which occurred prior to the date the Affected Lender is
replaced.
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ARTICLE III
Section 3.01
Conditions Precedent to the Closing Date. This Agreement shall become
effective on and as of the first date (the β
Closing Dateβ) on which the following
conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or
of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit
hereunder is subject to the satisfaction of such conditions precedent before or concurrently with
the Closing Date):
(a) The Administrative Agent shall have received on or before the Closing Date the following,
each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to
the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies
for each Initial Lender:
(i) Duly executed counterparts of this Agreement and the Intercreditor Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested in
accordance with Section 2.16(a).
(iii) A security agreement in substantially the form of Exhibit G hereto (the
βSecurity Agreementβ), duly executed by each Loan Party, together with:
(A) certificates representing the Initial Pledged Equity referred to therein
accompanied by undated stock powers executed in blank and instruments evidencing the
Initial Pledged Debt referred to therein, indorsed in blank (except to the extent
pledged to the βCollateral Agentβ under the Term Facility pursuant to the Term
Facility Loan Documents),
(B) proper financing statements in form appropriate for filing under the
Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem
necessary in order to perfect and protect the first priority liens and security
interests created under the Security Agreement, covering the Collateral described in
the Security Agreement, in each case completed in a manner in conformance with the
UCC,
(C) completed requests for information, dated on or before the Closing Date
listing all effective financing statements filed in the jurisdictions referred to in
clause (B) above that name any Loan Party as debtor, together with copies of such
other financing statements,
(D) an intellectual property security agreement (as amended, supplemented or
otherwise modified from time to time in accordance with its terms, the
βIntellectual Property Security Agreementβ), duly executed by each Loan
Party,
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71
(E) evidence of the insurance required by the terms of the Security Agreement,
and
(F) evidence that all other action that the Administrative Agent may deem
reasonably necessary to establish that the Collateral Agent has perfected first
priority (subject to Permitted Liens) security interests in the Revolving Facility
Collateral and perfected second priority (subject to Permitted Liens) security
interests in the Term Facility Collateral shall have been taken (including, without
limitation, receipt of duly executed payoff letters, UCC-3 termination statements
and landlordsβ and baileesβ waiver and consent agreements), and, in connection with
real estate collateral, the Collateral Agent shall have received all Real Estate
Closing Deliverables with respect to each parcel of Material Real Property, except
with respect to any Mortgage or Real Estate Closing Deliverable that is not required
to be delivered until after the Closing Date in accordance with Section 5.01(u)
hereof.
(iv) Certified copies of the resolutions of the boards of directors of each of the
Borrower and each Guarantor approving the execution and delivery of this Agreement and each
other Loan Document to which it is, or is intended to be a party, and of all documents
evidencing other necessary constitutive action and, if any, material governmental and other
third party approvals and consents, if any, with respect to the Reorganization Plan, this
Agreement, the other Transactions and each other Loan Document.
(v) A copy of the charter or other constitutive document of each Loan Party and each
amendment thereto, certified (as of a date reasonably acceptable to the Administrative
Agent) by the Secretary of State of the jurisdiction of its incorporation or organization,
as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a
Responsible Officer, dated the Closing Date (the statements made in which certificate shall
be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness
of the charter (or other applicable formation document) of such Loan Party and the absence
of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable
organizational document) of such Loan Party as in effect on the date on which the
resolutions of the board of directors (or persons performing similar functions) of such
Person referred to in Section 3.01(a)(iii) were adopted and the absence of any changes
thereto (a copy of which shall be attached to such certificate); (C) the absence of any
proceeding known to be pending for the dissolution, liquidation or other termination of the
existence of such Loan Party; (D) the accuracy in all material respects of the Specified
Representations made by such Loan Party in the Loan Documents to which it is or is to be a
party as though made on and as of the Closing Date, before and after giving effect to all of
the Borrowings and the issuance of all of the Letters of Credit to be made on such date
(including the migration of any Existing Letters of Credit) and to the application of
proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or
resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be
made on the Closing Date (including the migration of any Existing Letters
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72
of Credit) or the application of proceeds, if any, therefrom, that would constitute a
Default; and (F) the absence of a Company Material Adverse Effect since July 26, 2007.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party
certifying the names and true signatures of the officers of such Loan Party authorized to
sign this Agreement and the other documents to be delivered hereunder.
(viii) Certificates, in substantially the form of Exhibit L attesting to the Solvency
of the Borrower and each Guarantor, on a consolidated basis (after giving effect to the
Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) unaudited financial statements for the month of October 2007 and
each month thereafter at least 30 days after the end of any such month (other than December
or January) until the Closing Date occurs; and (ii) customary unaudited pro forma financial
statements, in each case prepared in a manner consistent with the projections in the
presentation provided by the Borrower dated November 6, 2007 (it being acknowledged that
such pro forma financial statements have been received as of the date hereof and are
satisfactory).
(x) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of
Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to
be issued, on the Closing Date.
(xi) A favorable opinion of (A) Xxxxx Day, counsel to the Loan Parties, in
substantially the form of Exhibit D-1 hereto, and addressing such other matters as the
Initial Lenders may reasonably request (including as to Delaware corporate law matters), and
(B) Xxxxxxxx, Loop & Xxxxxxxx, LLP, Michigan counsel to the Loan Parties, in substantially
the form of Exhibit D-2 hereto and addressing such other matters as the Initial Lenders may
reasonably request.
(xii) The Bankruptcy Court shall have entered a final non-appealable order (other than
with respect to any material appeals reasonably consented to by the Initial Lenders and the
Agents) (the βConfirmation Orderβ) confirming a Chapter 11 plan of reorganization
(the βReorganization Planβ) in respect of any Cases of any Loan Parties in
accordance with Section 1129 of the Bankruptcy Code, which Reorganization Plan shall be
substantially as set forth in the Third Amended Plan dated October 23, 2007 (together with
all exhibits and other attachments thereto, as any of the foregoing shall be amended,
modified or supplemented from time to time or any of the terms or conditions thereof waived
(with the consent of the Initial Lenders and the Agents with respect to any amendment,
modification, supplement or waiver that is adverse to the Lenders, as reasonably determined
by the Initial Lenders and the Agents), the βPlan Documentsβ), or otherwise
reasonably satisfactory to the Initial Lenders and the Agents.
(b) The Reorganization Plan shall have, or contemporaneous with the effectiveness of the
Senior Credit Facilities and the making of the initial loans thereunder will, become effective as
of the Plan Effective Date. The Confirmation Order shall be in form and substance satisfactory to
the Initial Lenders and the Agents, shall have been entered on the
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73
docket of the Bankruptcy Court in full force and effect, shall not have been stayed, reversed,
vacated or otherwise modified in any manner that is materially adverse to the rights or interests
of the Lenders (unless otherwise reasonably satisfactory to the Initial Lenders and the Agents).
(c) After giving effect to all borrowings and issuances of Letters of Credit on the Closing
Date, and to all other Transactions, Availability of the Borrower shall be no less than
$200,000,000.
(d) The transactions contemplated by the Plan Documents shall have been consummated
substantially contemporaneously with the effectiveness and initial funding of the Senior Credit
Facilities on the Closing Date.
(e) The Lender Parties shall be satisfied that all Existing Debt (that is not Surviving Debt),
has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished, all
commitments relating thereto terminated and all liens or security interests related thereto shall
have been terminated.
(f) Since July 26, 2007, there shall not have occurred a Company Material Adverse Effect.
(g) [Reserved].
(h) All costs, fees and expenses (including, without limitation, legal fees and expenses,
title premiums, survey charges and recording taxes and fees for which the Borrower has received an
invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the
Commitment Letter and the Fee Letter and payable to the Agents or the Lender Parties shall have
been paid in full in cash to the extent due and payable.
(i) The Lenders shall have received, at least ten (10) days prior to the Closing Date, all
documentation and other information required by bank regulatory authorities under applicable
βknow your customerβ and anti-money laundering rules and regulations, including without
limitation, the Patriot Act.
Section 3.02
Conditions Precedent to Each Borrowing and Each Issuance of a Letter of
Credit. Each of (a) the obligation of each Appropriate Lender to make an Advance (other than a
Letter of Credit Advance to be made by the Issuing Banks or a Lender pursuant to Section 2.03(c)
and as set forth in Section 2.02(b) with respect to the Swing Line Advances made by a Lender) on
the occasion of each Borrowing, and (b) the obligation of the Issuing Banks to issue a Letter of
Credit (including the initial issuance of a Letter of Credit hereunder) or to renew a Letter of
Credit and the right of the Borrower to request a Swing Line Borrowing, shall be subject to the
further conditions precedent that on the date of such Borrowing, issuance or renewal:
(a) the following statements shall be true (and each of the giving of the applicable Notice of
Borrowing or Letter of Credit Application and the acceptance by the Borrower of the proceeds of
such Borrowing or the issuance or renewal of such Letter of Credit, as the case may be, shall
constitute a representation and warranty by the Borrower that both on
XxxxβRevolving Credit and Guaranty Agreement
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the date of such notice and on the date of such Borrowing, issuance or renewal such statements
are true):
(i) the representations and warranties contained in each Loan Document, are correct in
all material respects, only to the extent that such representation and warranty is not
otherwise qualified by materiality or Material Adverse Effect on and as of such date, before
and after giving effect to such Borrowing, issuance or renewal and to the application of the
proceeds therefrom, as though made on and as of such date, other than any such
representations or warranties that, by their terms, refer to a specific date other than the
date of such Borrowing, issuance or renewal, in which case as of such specific date;
provided that, solely in the case of any Advance made on the Closing Date, only the
Specified Representations shall be correct in all material respects, on and as of the
Closing Date, before and after giving effect to such Borrowing, issuance or renewal and to
the application of the proceeds therefrom, as though made on and as of the Closing Date;
(ii) no event has occurred and is continuing, or would result from such Borrowing,
issuance or renewal or from the application of the proceeds, if any, therefrom, that
constitutes a Default; and
(iii) no Borrowing Base Deficiency will exist after giving effect to such Borrowing,
issuance or renewal and to the application of the proceeds therefrom; and
(b) the Lenders shall have received the Borrowing Base Certificate most recently required to
be delivered pursuant to Section 5.03(o), the calculations contained in which shall be reasonably
satisfactory to the Administrative Agent.
Section 3.03
Determinations Under Section 3.01. For purposes of determining
compliance with the conditions specified in Section 3.01, each Lender Party shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to the Lender Parties
unless an officer of the Administrative Agent responsible for the transactions contemplated by the
Loan Documents shall have received notice from such Lender Party prior to the Closing Date
specifying its objection thereto, and if a Borrowing occurs on the Closing Date, such Lender Party
shall not have made available to the Administrative Agent such Lender Partyβs ratable portion of
such Borrowing.
ARTICLE IV
(a) Each of the Borrower and its Material Subsidiaries (i) is a corporation, partnership,
limited liability company or other organization duly organized, validly existing and in good
standing (or to the extent such concept is applicable to a non-U.S. entity, the functional
XxxxβRevolving Credit and Guaranty Agreement
75
equivalent thereof) under the laws of the jurisdiction of its incorporation or formation
except where the failure to be in good standing (or the functional equivalent), individually or in
the aggregate, would not have a Material Adverse Effect, (ii) is duly qualified as a foreign
corporation (or other entity) and in good standing (or the functional equivalent thereof, if
applicable) in each other jurisdiction in which it owns or leases property or in which the conduct
of its business requires it to so qualify or be licensed, except where the failure to so qualify or
be licensed and in good standing (or the functional equivalent thereof, if applicable),
individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect, and (iii) has all requisite power and authority (including, without limitation, all
governmental licenses, permits and other approvals) to own or lease and operate its properties and
to carry on its business as now conducted and as proposed to be conducted, except where the failure
to have such power or authority, individually or in the aggregate, would not reasonably be expected
to result in a Material Adverse Effect. As of the Closing Date, all of the outstanding capital
stock of each Loan Party (other than the Borrower) has been validly issued, is fully paid and non
assessable and is owned by the Persons listed on Schedule 4.01 hereto in the percentages specified
on Schedule 4.01 hereto free and clear of all Liens, except those created under the Collateral
Documents or otherwise permitted under Section 5.02(a) hereof.
(b) Set forth on Schedule 4.01 hereto is a complete and accurate list as of the Closing Date
of all Subsidiaries of the Borrower, showing as of the Closing Date (as to each such Subsidiary)
the jurisdiction of its incorporation or organization, as the case may be, and the percentage of
the Equity Interests owned (directly or indirectly) by the Borrower or its Subsidiaries.
(c) The execution, delivery and performance by each Loan Party of this Agreement, the Notes
and each other Loan Document to which it is or is to be a party, and the consummation of each
aspect of the transactions contemplated hereby, are within such Loan Partyβs constitutive powers,
have been duly authorized by all necessary constitutive action, and do not (i) contravene such Loan
Partyβs constitutive documents, (ii) violate any applicable law (including, without limitation, the
Securities Exchange Act of 1934), rule, regulation (including, without limitation, Regulation X of
the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach of, or constitute a default
under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument
binding on or affecting any Loan Party, or any of their properties entered into by such Loan Party
after the date hereof except, in each case, other than any conflict, breach or violation which,
individually or in the aggregate would not reasonably be expected to have a Material Adverse
Effect or (iv) except for the Liens created under the Loan Documents, result in or require the
creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party
or any of its Subsidiaries.
(d) Except for the Confirmation Order, filing or recordings of Collateral Documents, filings
or recordings already made or to be made pursuant to any federal law, rule or regulation or filings
or recordings to be made in any jurisdiction outside of the United States, no authorization,
approval or other action by, and no notice to or filing with, any governmental authority or
regulatory body or any other third party is required for (i) the due execution, delivery,
recordation, filing or performance by any Loan Party of this Agreement, the Notes or any other Loan
Document to which it is or is to be a party, or for the consummation of each
XxxxβRevolving Credit and Guaranty Agreement
76
aspect of the transactions contemplated hereby, (ii) the grant by any Loan Party of the Liens
granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the
Liens created under the Collateral Documents or (iv) the exercise by the Administrative Agent or
any Lender Party of its rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Collateral Documents.
(e) This Agreement has been, and each of the Notes, if any, and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by each Loan Party thereto. This
Agreement is, and each of the Notes and each other Loan Document when delivered hereunder will be
the legal, valid and binding obligation of each Loan Party thereto, enforceable against such Loan
Party in accordance with its terms, subject in each case to Debtor Relief Laws.
(f) The Consolidated balance sheet of Xxxx Corporation and its Subsidiaries as at December 31,
2006, and the related Consolidated statements of income and cash flows of Xxxx Corporation and its
Subsidiaries for the Fiscal Year then ended, and the interim Consolidated balance sheets of Xxxx
Corporation and its Subsidiaries as at October 31, 2007 and November 30, 2007 and the related
Consolidated statements of income and cash flows of Xxxx Corporation and its Subsidiaries for the
respective months then ended, which have been furnished to each Lender Party present fairly the
financial condition and results of operations of Xxxx Corporation and its Subsidiaries as of such
dates and for such periods all in accordance with GAAP consistently applied (subject to year-end
adjustments and in the case of unaudited financial statements, except for the absence of footnote
disclosure).
(g) Since September 30, 2007, there has not occurred a Material Adverse Change.
(h) All projected Consolidated balance sheets, income statements and cash flow statements of
the Borrower and its Subsidiaries delivered to the Lender Parties pursuant to Section 5.03(d) were
prepared and will be prepared, as applicable, in good faith on the basis of the assumptions stated
therein, which assumptions were fair and will be fair in the light of conditions existing at the
time of delivery of such projections, and represented and will represent, at the time of delivery,
the Borrowerβs reasonable estimate of its future financial performance.
(i) Neither the Confidential Information Memorandum nor any other written information,
exhibits and reports furnished by or on behalf of any Loan Party to the Administrative Agent or any
Lender Party on or after November 6, 2007 in connection with any Loan Document (other than to the
extent that any such information, exhibits and reports constitute projections described in Section
4.01(g) above and any historical financial information delivered prior to the restatement thereof
by Xxxx Corporation and its auditors) taken as a whole and in light of the circumstances in which
made, contained any untrue statement of a material fact or omitted to state a material fact
necessary to make the statements made therein, in light of the circumstances in which any such
statements were made, not misleading.
(j) Except as set forth on Schedule 4.01(i) or as disclosed in any SEC filings, there is no
action, suit, or proceeding affecting the Borrower or any of its Material Subsidiaries pending or,
to the best knowledge of the Loan Parties, threatened before any court, governmental
XxxxβRevolving Credit and Guaranty Agreement
77
agency or arbitrator that (i) is reasonably expected to be determined adversely to the Loan
Party and, if so adversely determined, would reasonably be expected to have a Material Adverse
Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement, any
Note or any other Loan Document.
(k) The Borrower is not engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock, and no proceeds of any Advance or any drawing under any Letter
of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock.
(l) No ERISA Event has occurred or is reasonably expected to occur with respect to any ERISA
Plan that has resulted in or is reasonably expected to result in a Material Adverse Effect.
(m) The present value of all accumulated benefit obligations under each ERISA Plan (based on
the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not,
as of the date of the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of such ERISA Plan by an amount which, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect. The present value of all
accumulated benefit obligations of all underfunded ERISA Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market value of the assets of
all such underfunded ERISA Plans by an amount which would reasonably be expected to have a Material
Adverse Effect. Neither the Borrower, its Material Subsidiaries, nor any ERISA Affiliates has
incurred within the previous five years or is reasonably expected to incur any material Withdrawal
Liability.
(n) Except as set forth in Schedule 4.01(m) hereto, the operations and properties of each Loan
Party and each of its Material Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non compliance with such Environmental Laws
and Environmental Permits has been resolved in a manner that could not be reasonably likely to
result in a material liability, and, to the knowledge of the Loan Parties after reasonable inquiry,
no circumstances exist that would be reasonably likely to (i) form the basis of an Environmental
Action against any Loan Party or any of its Material Subsidiaries or any of their properties that
could be reasonably likely to have a material impact on any Loan Party or any Material Real
Property or (ii) cause any such property to be subject to any restrictions on ownership, occupancy,
use or transferability under any Environmental Law.
(o) Once executed, the Collateral Documents create a valid and perfected security interest or
Lien, as applicable in the Collateral having the priority set forth therein securing the payment of
the Secured Obligations, and all filings and other actions necessary (except with respect to any
action that is not required to be taken on the Closing Date in accordance with Section 5.1(u)
hereof) to perfect such security interest have been duly taken, except that the execution and
delivery of local law governed pledge or analogous documentation with respect to Equity Interests
in Subsidiaries of the Borrower organized in jurisdictions outside the United States, and the
filing, notarization, registration or other publication thereof, and the
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78
taking of other actions, if any, required under local law of the relevant jurisdictions of
organization for the effective grant and perfection of a Lien on such Equity Interests under laws
of such jurisdictions of organization outside the United States, may be required in order to fully
grant, perfect and protect such security interest under such local laws. The Loan Parties are the
legal and beneficial owners of the Collateral free and clear of any Lien, except for the liens and
security interests created or permitted under the Loan Documents.
(p) Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the
application of the proceeds or repayment thereof by the Borrowers, nor the consummation of the
other transactions contemplated by the Loan Documents, will violate any provision of the Investment
Company Act of 1940, as amended, or any rule, regulation or order of the Securities and Exchange
Commission thereunder.
(q) Each Loan Party and each of its Subsidiaries has filed or caused to be filed all returns
and reports (federal, state, local and foreign) which are required to have been filed and has paid
or caused to be paid all taxes required to have been paid by it, together with applicable interest
and penalties, except (a) taxes that are being contested in good faith by appropriate proceedings
and for which such Borrower or such Subsidiary, as applicable, has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could not reasonably be expected to result
in a Material Adverse Effect.
(r) Set forth on Schedule 4.01(r) hereto is a complete and accurate list of all domestic real
property owned by any Loan Party, showing as of the date hereof the street address, county or other
relevant jurisdiction, state, record owner and book and estimated fair value thereof. Each Loan
Party or such Subsidiary has good and insurable fee simple title to such real property, free and
clear of all Liens, other than Permitted Liens.
(s) Set forth on Schedule 4.01(s) hereto is a complete and accurate list of all leases of
Material Real Property under which any Loan Party is the lessee, showing as of the date hereof the
street address, county or other relevant jurisdiction, state, lessor, lessee, expiration date and
annual rental cost thereof. To the best of the Borrowerβs knowledge, each such lease is the legal,
valid and binding obligation of the lessee thereof, enforceable in accordance with its terms.
(t) Set forth on Schedule 4.01(t) hereto is a complete and accurate list of all leases of
domestic real property under which any Loan Party is the lessor, showing as of the date hereof the
street address, county or other relevant jurisdiction, state, lessor, lessee, expiration date and
annual rental cost thereof.
(u) Each Loan Party and each of its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property necessary, in the aggregate, for
the conduct of its business as currently conducted, and the use thereof by the Borrower and the
Guarantors does not infringe upon the rights of any other Person, except for any such infringement
that, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
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79
(v) The Borrower and it Subsidiaries, on a consolidated basis, will be Solvent on and as of
the Closing Date.
(w) To each Loan Partyβs knowledge, each Loan Party and its Subsidiaries do not have any
material contingent liability in connection with any release of any Hazardous Materials into the
environment.
(x) To each Loan Partyβs knowledge, none of the Loan Parties or their Subsidiaries are in
violation of any law, rule or regulation, or in default with respect to any judgment, writ,
injunction or decree of any Governmental Authority, except for any such violation or default that
would not reasonably be expected to result in a Material Adverse Effect.
(y) Other than as disclosed in the Reorganization Plan, no broker, finder or investment banker
is entitled to any brokerage, finderβs or other fee or commission in connection with this Agreement
or the Loan Documents or the Transactions or the transactions contemplated hereby or thereby based
upon arrangements made by or on behalf of the Borrower.
(z) To the extent applicable, each Loan Party is in compliance, in all material respects, with
the Patriot Act.
ARTICLE V
Section 5.01 Affirmative Covenants. So long as any Advance shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any Commitment hereunder, each
Loan Party will:
(a) Corporate Existence. Preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and franchises necessary or
desirable in the normal conduct of its business except (i)(A) if in the reasonable business
judgment of the Borrower or such Guarantor, as the case may be, it is in its best economic interest
not to preserve and maintain such rights, privileges, qualifications, permits, licenses and
franchises and the loss thereof is not materially disadvantageous to the Loan Parties, taken as a
whole, and (B) such failure to preserve the same could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect, and (ii) as otherwise permitted by Section 5.02(g).
(b) Compliance with Laws. Comply with all laws, rules, regulations and orders of any
governmental authority applicable to it or its property, such compliance to include without
limitation, ERISA, Environmental Laws and The Racketeer Influenced and Corrupt Organizations
Chapter of The Organized Crime Control Act of 1970, except where the failure to do so, individually
or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
(c) Environmental Matters. Comply, and cause each of its Subsidiaries and all lessees
and other Persons operating or occupying its properties to comply, in all material respects, with
all applicable Environmental Laws and Environmental Permits; obtain and renew,
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and cause each of its Subsidiaries to obtain and renew, all Environmental Permits necessary
for its operations and properties and conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other
action necessary to remove and clean up all Hazardous Materials from any of its properties, in
accordance with the requirements of all Environmental Laws, in each case to the extent the failure
to do so would result in a material loss or liability; provided, however, that
neither the Borrower nor any of its Subsidiaries shall be required to undertake any such cleanup,
removal, remedial or other action to the extent that its obligation to do so is being contested in
good faith and by proper proceedings and appropriate reserves are being maintained with respect to
such circumstances.
(d) Insurance. (i) Keep its insurable properties insured at all times, against such
risks, including fire and other risks insured against by extended coverage, as is customary with
companies of the same or similar size in the same or similar businesses (subject to deductibles and
including provisions for self-insurance); and maintain in full force and effect public liability
insurance against claims for personal injury or death or property damage occurring upon, in, about
or in connection with the use of any properties owned, occupied or controlled by the Borrower or
any Guarantor, as the case may be, in such amounts and with such deductibles as are customary with
companies of the same or similar size in the same or similar businesses and in the same geographic
area and in each case with financially sound and reputable insurance companies (subject to
provisions for self-insurance) and (ii) with respect to each parcel of Material Real Property that
is subject to a Mortgage, obtain flood insurance in such total amounts as are required pursuant to
applicable law or otherwise customary with companies of the same or similar size, if at any time
the area in which any improvements are located is designated as a βflood hazard areaβ in any Flood
Insurance Rate Map established by the Federal Emergency Management Agency (or any successor
agency), and otherwise comply with the National Flood Insurance Program set forth in the Flood
Disaster Protection Act of 1973, as amended from time to time.
(e) Obligations and Taxes. Pay all its material obligations promptly and in
accordance with their terms and pay and discharge and cause each of its Subsidiaries to pay and
discharge promptly all material taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits or in respect of its property, before the same shall become in
default, as well as all lawful claims for labor, materials and supplies or otherwise which, if
unpaid, would become a Lien or charge upon such properties or any part thereof; provided,
however, that the Borrower and each Guarantor shall not be required to pay and discharge or
to cause to be paid and discharged any such tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith by appropriate proceedings, in each
case, if the Borrower and the Guarantors shall have set aside on their books adequate reserves
therefor in conformity with GAAP.
(f) Access to Books and Records.
(i) Maintain or cause to be maintained at all times true and complete books and records
in accordance with GAAP of the financial operations of the Borrower and the Guarantors; and
provide the Lender Parties and their representatives (which shall coordinate through the
Administrative Agent) access to all such books and records during
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81
regular business hours upon reasonable advance notice, in order that the Lender Parties
may examine and make abstracts from such books, accounts, records and other papers for the
purpose of verifying the accuracy of the various reports delivered by the Borrower or the
Guarantors to any Agent or the Lenders pursuant to this Agreement or for otherwise
ascertaining compliance with this Agreement and to discuss the affairs, finances and
condition of the Borrower and the Guarantors with the officers and independent accountants
of the Borrower; provided that the Borrower shall have the right to be present at any such
visit or inspection.
(ii) Grant the Lender Parties (which shall coordinate through the Administrative Agent)
access to and the right to inspect all reports, audits and other internal information of the
Borrower and the Guarantors relating to environmental matters upon reasonable advance
notice, but subject to appropriate limitations so as to preserve attorney-client privilege.
(iii) At any reasonable time and from time to time during regular business hours, upon
reasonable notice by the Administrative Agent or the Collateral Agent, permit such Agent or
any Lenders and/or any representatives designated by such Agent or such Lender (it being
understood that all such visits by Lenders shall be coordinated through the Administrative
Agent) (including any internal and third party consultants, accountants, lawyers and
appraisers retained by such Agent or Lender) to visit the properties of the Borrower and the
Guarantors to conduct evaluations, appraisals, environmental assessments and ongoing
maintenance and monitoring in connection with the Borrowerβs computation of the Borrowing
Base and the assets included in the Borrowing Base and such other assets and properties of
the Borrower or its Subsidiaries as such Agent or Lender may require, and to monitor the
Collateral and all related systems, and pay the reasonable fees and expenses in connection
therewith (including the reasonable and customary fees and expenses of such Agents and
Lenders, as forth in Section 10.04); provided that the Borrower shall have the
right to be present at any such visit and, unless (a) a Default has occurred and is
continuing or (b) the Availability is less than or equal to the Availability Threshold
Amount, such visits permitted under this clause (iii) shall be coordinated through the
Administrative Agent or the Collateral Agent and shall be made no more frequently than twice
in any fiscal year. In connection with any collateral monitoring or review and appraisal
relating to the computation of the Borrowing Base, the Borrower shall make such
modifications and adjustments to the Borrowing Base or the computation thereof as the
Administrative Agent shall reasonably require upon at least ten (10) days written notice (it
being understood that no such notice is required during the continuance of an Event of
Default or in the event that Availability is less than or equal to the Availability
Threshold Amount) based upon the terms of this Agreement and results of such collateral
monitoring, review or appraisal (which modifications and adjustments may include maintaining
additional Reserves, modifying the advance rates or modifying the eligibility criteria for
components of the Borrowing Base to the extent reasonably required by the Administrative
Agent).
(iv) Permit third-party appraisals of Inventory; provided that such third-party
appraisals may be conducted (i) no more than once per year or (ii) at any time upon the
occurrence and continuance of an Event of Default.
XxxxβRevolving Credit and Guaranty Agreement
82
(g) [Reserved].
(h) Maintenance of Credit Ratings. Use commercially reasonable efforts to maintain,
in respect of the Borrower, corporate ratings and corporate family ratings of S&P and Xxxxxβx,
respectively.
(i) Use of Proceeds. Use the proceeds of the Advances solely for the purposes, and
subject to the restrictions, set forth in Section 2.14.
(j) Validity of Loan Documents. Use its best efforts to object to any application
made on behalf of any Loan Party or by any Person to the validity of any Loan Document or the
applicability or enforceability of any Loan Document or which seeks to void, avoid, limit, or
otherwise adversely affect the security interest created by or in any Loan Document or any payment
made pursuant thereto.
(k) Maintenance of Cash Management System. Maintain a cash management system on terms
reasonably acceptable to the Initial Lenders (it being acknowledged that the Cash Management System
of the Borrower as in effect on the Closing Date is reasonably acceptable to the Lenders) in
accordance with Section 2.17 of this Agreement. Continue to maintain one or more Concentration
Accounts to be used by the Borrower as its principal concentration account for day-to-day
operations conducted by the Borrower.
(l) [Reserved].
(m) Additional Domestic Subsidiaries. If any Loan Party shall form or directly
acquire all or substantially all of the outstanding Equity Interests of a Material Subsidiary after
the Closing Date, or a Subsidiary becomes a domestic Material Subsidiary after the Closing Date,
the Borrower will notify the Administrative Agent and the Collateral Agent thereof and such Loan
Party will cause such Subsidiary to become a Loan Party hereunder and under each applicable
Collateral Document within fifteen (15) Business Days after such Subsidiary is formed or acquired
and promptly take such actions to create and perfect Liens on such Subsidiaryβs assets to secure
the Secured Obligations as the Administrative Agent or the Collateral Agent shall reasonably
request in accordance with and subject to the Collateral Documents; provided that (i)
Mortgages shall only be required in respect of Material Real Property and (ii) notwithstanding the
foregoing, no Subsidiary will be required to become or remain a Guarantor or provide or maintain a
Lien on any of its assets as security for any of the Obligations (A) if such Subsidiary is not a
wholly-owned Subsidiary; (B) to the extent doing so would (1) in the case of any CFC or any assets
of a CFC, result in any materially adverse tax consequences or (2) be prohibited by any applicable
law; (C) such Person is an Excluded Subsidiary, or (D) if, in the reasonable judgment of the
Administrative Agent and the Borrower, the cost of providing a Guarantee Obligation hereunder is
excessive in relation to the benefits to be obtained by the Lender Parties therefrom. If any
certificated shares of Equity Interests of any such Subsidiary, or any Debt of any such Subsidiary
exceeding $1,000,000, are owned by or on behalf of any Loan Party, such Loan Party will cause such
shares and promissory notes evidencing such Debt to be pledged to secure the Secured Obligations
within fifteen (15) Business Days after such Subsidiary is formed or such shares of Equity
Interests or Debt are acquired (except that, if such Subsidiary is a Foreign Subsidiary, shares of
Equity Interests of
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83
such Subsidiary to be pledged shall be limited to 65% of the outstanding shares of Equity
Interests of such Subsidiary).
(n) [Reserved]
(o) [Reserved]
(p) Further Assurances.
(i) Promptly upon reasonable request by any Agent, correct, and cause each of its
Subsidiaries promptly to correct, any material defect or error that may be discovered in any
Loan Document or in the execution, acknowledgment, filing or recordation thereof.
(ii) Promptly upon reasonable request by any Agent, do, execute, acknowledge, deliver,
record, re-record, file, re-file, register and re-register any and all such further acts,
deeds, conveyances, pledge agreements, mortgages, deeds of trust, trust deeds, assignments,
financing statements and continuations thereof, termination statements, notices of
assignment, transfers, certificates, landlordsβ and baileesβ waiver and consent agreements,
assurances and other instruments as any Agent may reasonably require from time to time in
order to (A) carry out more effectively the purposes of the Loan Documents, (B) to the
fullest extent permitted by applicable law, subject any Loan Partyβs properties, assets,
rights or interests to the Liens now or hereafter required to be covered by any of the
Collateral Documents, (C) perfect and maintain the validity, effectiveness and priority of
any of the Collateral Documents and any of the Liens required to be created thereunder and
(D) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively
unto the Secured Parties the rights granted or now or hereafter intended to be granted to
the Secured Parties under any Loan Document or under any other instrument executed in
connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or
is to be a party, and cause each of its Subsidiaries to do so.
(q) Maintenance of Properties, Etc. Maintain and preserve all of its properties that
are used or useful in the conduct of its business in good working order and condition, ordinary
wear and tear excepted, and will from time to time make or cause to be made all appropriate
repairs, renewals and replacements thereof except where failure to do so would not have a Material
Adverse Effect; provided that, this subSection (q) shall not prohibit the sale, transfer or
other disposition of any such property consummated in accordance with the other terms of this
Agreement.
(r) Reserved.
(s) Disposition of Excluded Real Property. Within 180 days immediately following the
Closing Date, enter into a definitive agreement, or agreements, providing for the Disposition of
each of the parcels of Excluded Real Property (such Dispositions to be consummated no later than 90
days after execution of such definitive agreement); provided that in the event the Borrower fails
to consummate such Dispositions within the time periods set forth herein, then the Borrower shall
deliver (no later than the 270th day immediately following the
XxxxβRevolving Credit and Guaranty Agreement
84
Closing Date) to the Collateral Agent each of the Real Estate Closing Deliverables with
respect to each parcel of Excluded Real Property but only to the extent that such parcel of
Excluded Real Property would be considered Material Real Property but for the exclusion set forth
in the definition thereof.
(t) Interest Rate Protection. Enter into within 120 days after the Closing Date and
maintain at all times thereafter, interest rate Hedge Agreements reasonably satisfactory to the
Term Facility Administrative Agent with any Lender or any Affiliates thereof, covering a notional
amount of not less than 50% of the aggregate loans outstanding under the Term Facility and
providing for such Lenders to make payments thereunder for a period of no less than three years.
(u) Post-Closing Obligations. Take each action set forth on Schedule 5.01(u) within
the time period set forth on Schedule 5.01(u) for such action; provided that in each case, the
Administrative Agent may, in its sole discretion, grant extensions of the time periods set forth in
this Section 5.01(u).
Section 5.02
Negative Covenants. So long as any Advance shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any Commitment hereunder, no
Loan Party will, at any time:
(a)
Liens. Incur, create, assume or suffer to exist any Lien on any asset of the
Borrower or any of its Material Subsidiaries now owned or hereafter acquired by any of the Borrower
or any such Material Subsidiary, other than: (i) Liens existing on the Closing Date and set forth
on Schedule 5.02(a), (ii) Permitted Liens, (iii) Liens on assets of Foreign Subsidiaries to secure
Debt permitted by Section 5.02(b)(vii), (iv) Liens in favor of the Administrative Agent and the
Secured Parties, (v) Liens in connection with Debt permitted to be incurred pursuant to Section
5.02(b)(viii) so long as such Liens extend solely to the property (and improvements and proceeds of
such property) acquired or financed with the proceeds of such Debt or subject to the applicable
Capitalized Lease, (vi) Liens (x) in the form of cash collateral deposited to secure Obligations
under Hedge Agreements, Credit Card Programs and Cash Management Obligations (in each case, not
secured as set forth in clauses (y) or (z)); provided that such cash is not in excess of
$75,000,000, (y) on the Revolving Facility Collateral to secure (A) Obligations under Hedge
Agreements (not secured as set forth in clauses (x) or (z)) up to an amount not to exceed
$100,000,000, (B) Cash Management Obligations (not secured as set forth in clauses (x) or (z)) up
to an amount not to exceed $25,000,000 and (C) Obligations under Credit Card Programs (not secured
as set forth in clauses (x) or (z)), and (z) on the Term Facility Collateral to secure (A)
Obligations under Hedge Agreements not secured as set forth in clauses (x) or (y), (B) Cash
Management Obligations not secured as set forth in clauses (x) or (y) and (C) Obligations under
Credit Card Programs not secured as set forth in clauses (x) or (y), (vii) Liens arising pursuant
to the Tooling Program, (viii) Liens on cash or Cash Equivalents to secure cash management
obligations to Keybank National Association provided that such cash or cash equivalents are not in
excess of $1,000,000; (ix) Liens arising in connection with the access rights granted pursuant to
the Access Rights Agreement; and (x) the Getrag Sale.
(b)
Debt. Contract, create, incur, assume or suffer to exist any Debt, or permit any
of its Material Subsidiaries to contract, create, incur, assume or suffer to exist any Debt,
XxxxβRevolving Credit and Guaranty Agreement
85
except for (i) Debt under this Agreement and the other Loan Documents, (ii) Debt under the
Term Facility Credit Agreement and other Term Facility Loan Documents, (iii) Surviving Debt
(including the Existing Receivables Facility) and any Permitted Refinancing thereof (it being
understood that in the case of a Permitted Refinancing of the Existing Receivables Facility, the
aggregate principal amount of such Debt being refinanced in connection therewith shall be deemed to
be β¬170,000,000 (or the equivalent amount in Dollars)) as of the Closing Date, (iv) Debt arising
from Investments among the Borrower and its Subsidiaries that are permitted hereunder, (v) Debt in
respect of any overdrafts and related liabilities arising from treasury, depository and cash
management services or in connection with any automated clearing house transfers of funds; (vi)
Debt consisting of guaranties (x) permitted by Section 5.02(c) and (y) non-recourse Debt in respect
of Investments in joint ventures permitted under Section 5.02(f)(ix) or Section 5.02(f)(xvii) in an
aggregate amount not to exceed $100,000,000 plus any non-recourse Debt directly associated with
Xxxx Xxxx at any time outstanding; (vii) Debt of Foreign Subsidiaries owing to third parties in an
aggregate outstanding principal amount (together with the aggregate outstanding principal amount of
all other Debt of Foreign Subsidiaries permitted under this subSection (b)) not in excess of
$500,000,000 at any time outstanding, (viii) Debt constituting purchase money debt and Capitalized
Lease obligations (not otherwise included in subclause (iii) above and including any such Debt or
Capitalized Lease obligations assumed in connection with a Permitted Acquisition) in an aggregate
outstanding amount not in excess of $75,000,000, (ix)(x) Debt in respect of Hedge Agreements
entered into in the ordinary course of business to protect against fluctuations in interest rates,
foreign exchange rates and commodity prices and (y) Debt arising under the Credit Card Program;
provided that Hedge Agreements and Credit Card Programs subject to Liens permitted under Section
5.02(a)(vi)(x) shall not exceed $75,000,000 at any time outstanding, (x) indebtedness which may be
deemed to exist pursuant to any surety bonds, appeal bonds or similar obligations incurred in
connection with any judgment not constituting an Event of Default, (xi) indebtedness in respect of
netting services, customary overdraft protections and otherwise in connection with deposit accounts
in the ordinary course of business, (xii) payables owing to suppliers in connection with the
Tooling Program, (xiii) Debt representing deferred compensation to employees of the Borrower or any
other Loan Party incurred in the ordinary course of business; (xiv) Debt incurred by the Borrower
or any of its Subsidiaries in a Permitted Acquisition, any other Investment expressly permitted
hereunder or any Disposition, in each case limited to indemnification obligations or obligations in
respect of purchase price, including Earn-Out Obligations or similar adjustments, (xv) Debt
consisting of the financing of insurance premiums in each case, in the ordinary course of business,
(xvi) Debt supported by a Letter of Credit in a principal amount not to exceed the face amount of
such Letter of Credit, (xvii) Subordinated Debt of the Loan Parties in an aggregate principal
amount not to exceed $250,000,000 at any time outstanding, and (xviii) Debt not otherwise permitted
hereunder in an aggregate outstanding principal amount of $20,000,000.
(c)
Guarantees and Other Liabilities. Contract, create, incur, assume or permit to
exist, or permit any Material Subsidiary to contract, create, assume or permit to exist, any
Guarantee Obligations, except (i) for any guaranty of Debt or other obligations of the Borrower or
any Guarantor if the Borrower or such Guarantor could have incurred such Debt or obligations under
this Agreement; provided that, if the Debt being guaranteed is subordinated to the Obligations
under this Agreement, such Guarantee Obligation shall be subordinated to the Guarantee of the
Obligations on terms at least as favorable to the Lenders as those contained in
XxxxβRevolving Credit and Guaranty Agreement
86
the subordination
of such Debt, (ii) by endorsement of negotiable instruments for deposit or collection in the ordinary course of business and (iii) Guarantee Obligations constituting
Investments of the Borrower and its Subsidiaries permitted hereunder (provided that Guarantee
Obligations in respect of Investments in joint ventures permitted under Section 5.02(f)(i) shall
not exceed an aggregate amount of $50,000,000 at any time outstanding).
(d)
Dividends; Capital Stock. Declare or pay, directly or indirectly, any dividends
or make any other distribution, or payment, whether in cash, property, securities or a combination
thereof, with respect to (whether by reduction of capital or otherwise) any shares of capital stock
(or any options, warrants, rights or other equity securities or agreements relating to any capital
stock) of the Borrower, or set apart any sum for the aforesaid purposes (collectively,
β
Restricted Paymentsβ), except that:
(i) So long as (x) no Default or Event of Default shall have occurred and be continuing
or would result therefrom and (y) the Payment Condition is satisfied, the Borrower may
declare and pay dividends in respect of its Preferred Interests; provided that the
aggregate amount of dividends paid in any Fiscal Year shall not exceed $32,000,000;
provided further that if the terms of this Section 5.02(d)(i) prevent the
Borrower from declaring such dividends in any Fiscal Year, the aggregate amount of dividends
paid in the immediately succeeding Fiscal Year (subject to this Agreement) may include the
unused amount permitted hereunder for the prior year;
(ii) to the extent constituting Restricted Payments, the Borrower may enter into and
consummate any transactions permitted under Section 5.02(e), (f) and (j); and
(iii) repurchases of Equity Interests in the ordinary course of business in the
Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries deemed to
occur upon exercise of stock options or warrants if such Equity Interests represent a
portion of the exercise price of such options or warrants.
(e)
Transactions with Affiliates. Enter into or permit any of its Material
Subsidiaries to enter into any transaction with any of its Affiliates, other than on terms and
conditions at least as favorable to the Borrower or such Subsidiary as would reasonably be obtained
at that time in a comparable armβs-length transaction with a Person other than an Affiliate, except
for the following: (i) any transaction between any Loan Party and any other Loan Party or between
any Non-Loan Party and any other Non-Loan Party; (ii) any transaction between any Loan Party and
any Non-Loan Party that is at least as favorable to such Loan Party as would reasonably be obtained
at that time in a comparable armβs-length transaction with a Person other than an Affiliate; (iii)
any transaction individually or of a type expressly permitted pursuant to the terms of the Loan
Documents; or (iv) reasonable and customary director, officer and employee compensation (including
bonuses) and other benefits (including retirement, health, stock option and other benefit plans)
and indemnification arrangements, in each case approved by the relevant Board of Directors or (v)
transactions in existence on the Closing Date and set forth on Schedule III and any renewal or
replacement thereof on substantially identical terms.
(f)
Investments. Make or hold, or permit any of its Material Subsidiaries to make,
any Investment in any Person, except for (i) (A) ownership by the Borrower or the
XxxxβRevolving Credit and Guaranty Agreement
87
Guarantors of the
capital stock of each of the Subsidiaries listed on Schedule 4.01 and (B) Investments consisting of intercompany loans or advances existing as of the Closing Date and
other Investments existing as of the Closing Date and set forth on Schedule 5.02(f), together with
any increase in the value of thereof, in each case as extended, renewed or refinanced from time to
time so long as the aggregate thereof is not increased above the amount as of the Closing Date plus
the increase in the value thereof unless otherwise permitted pursuant to another exception in this
Section 5.02(f) and any Permitted Refinancing thereof; (ii) Investments in Cash Equivalents and
Investments by Foreign Subsidiaries in securities and deposits similar in nature to Cash
Equivalents and customary in the applicable jurisdiction; (iii) Investments or intercompany loans
or advances (A) by any Loan Party to or in any other Loan Party, (B) by any Non-Loan Party to or in
any Loan Party or (C) by any Non-Loan Party to or in any other Non-Loan Party; (iv) investments (A)
received in satisfaction or partial satisfaction thereof from financially troubled account debtors
or in connection with the settlement of delinquent accounts and disputes with customers and
suppliers, or (B) received in settlement of debts created in the ordinary course of business and
owing to the Borrower or any of its Subsidiaries or in satisfaction of judgments; (v) Investments
(A) in the form of deposits, prepayments and other credits to suppliers made in the ordinary course
of business consistent with current market practices, (B) in the form of extensions of trade credit
in the ordinary course of business, or (C) in the form of prepaid expenses and deposits to other
Persons in the ordinary course of business; (vi) Investments made in any Person to the extent such
investment represents the non-cash portion of consideration received for an asset sale permitted
under the terms of the Loan Documents; (vii) loans or advance to directors, officers and employees
for bona fide business purposes and in the ordinary course of business in an aggregate principal
amount not to exceed $10,000,000 at any time outstanding; (viii) investments constituting
guaranties permitted pursuant to Section 5.02(c)(i) or (ii) above and guaranties of leases and
trade payables and other similar obligations entered into in the ordinary course of business; (ix)
Permitted Acquisitions by Loan Parties in an amount not to exceed $75,000,000 in any Fiscal Year so
long as the Payment Condition is satisfied; provided that to the extent that such Permitted
Acquisition would result in such Person not becoming a Loan Party in accordance with Section 5.02,
such amount may not exceed $10,000,000 during any Fiscal Year; (x) Investments in connection with
the Tooling Program in an aggregate amount (together with any Investments in connection with the
Tooling Program permitted under sub-clause (i)(B) above) not in excess of $135,000,000; (xi)
Investments in Mexico in connection with Maquiladora or similar arrangements in an aggregate amount
not to exceed $20,000,000; (xii) Investments by Loan Parties in Non-Loan Parties (A) in an
aggregate amount not to exceed an amount equal to $50,000,000 plus, with respect to any such Loan
Party, the aggregate amount of dividends, distributions and loan repayments received by such Loan
Party after the Closing Date from Non-Loan Parties at any time outstanding and (B) to the extent
that Letters of Credit are permitted to be issued hereunder to provide credit support for
third-party Debt of Foreign Subsidiaries; (xiii) Investments by Foreign Subsidiaries in other
Foreign Subsidiaries and in the Loan Parties; (xiv) proposed Investments disclosed in writing to
the Administrative Agent at least 5 Business Days prior
to the Closing Date and satisfactory to the
Administrative Agent; (xv) loans or advances made by any Foreign Subsidiary to the purchaser of
receivables and receivables related assets or any interest therein to fund part of the purchase
price of such receivables and receivables related assets or any interest therein in connection with
the factoring or sale of such receivables pursuant to a transaction permitted pursuant to Section
5.02(b)(iii) or (vi); (xvi) Permitted Acquisitions by Foreign Subsidiaries not
XxxxβRevolving Credit and Guaranty Agreement
88
to exceed $100,000,000 in any Fiscal Year; and (xvii) other Investments to the extent not permitted pursuant
to any other subpart of this Section in an amount not to exceed $25,000,000 in any Fiscal Year.
Notwithstanding the forgoing, in the case of Investments permitted by clauses (ix), (xii), (xiv)
and (xvii) above, no such Investment may be made by any Loan Party unless the Payment Condition is
satisfied.
(g)
Disposition of Assets. Sell or otherwise dispose of, or permit any of its
Material Subsidiaries to sell or otherwise dispose of, any assets (including, without limitation,
the capital stock of any Subsidiary of the Borrower or a Material Subsidiary) except for (i)
proposed divestitures publicly disclosed or otherwise disclosed in writing to the Administrative
Agent, in each case at least 5 Business Days prior to the Closing Date and satisfactory to the
Administrative Agent and the Lenders; (ii) (x) sales of inventory or obsolete or worn-out property
by the Borrower or any of its Subsidiaries in the ordinary course of business, (y) sales, leases or
transfers of property by the Borrower or any of its Subsidiaries to the Borrower or a Subsidiary or
to a third party in connection with the asset value recovery program, or (z) sales by Non-Loan
Parties of property no longer used or useful; (iii) the sale, lease, transfer or other disposition
of any assets (A) by any Loan Party to any other Loan Party, (B) by any Non-Loan Party to any Loan
Party, (C) by any Non-Loan Party to any other Non-Loan Party or (D) so long as (1) no Default has
occurred and is continuing and (2) the Payment Condition is satisfied, by any Loan Party to any
Non-Loan Party, so long as the fair market value of any asset disposed under this Section
5.02(g)(iii)(D) does not exceed (x) $20,000,000 in any single transaction or series of related
transactions, (y) $75,000,000 in the aggregate during any Fiscal Year and (z) $200,000,000 in the
aggregate during the term of this Agreement; (iv) sales, transfers or other dispositions of assets
in connection with the Tooling Program; (v) any sale, lease, transfer or other disposition made in
connection with any Investment permitted under Sections 5.02(f)(ii), (iv), (v) or (viii) hereof;
(vi) licenses, sublicenses or similar transactions of intellectual property in the ordinary course
of business and the abandonment of intellectual property, in accordance with Section 13 of the
Security Agreement, deemed no longer useful; (vii) equity issuances by any Subsidiary to the
Borrower or any other Subsidiary of the Borrower to the extent such equity issuance constitutes an
Investment permitted pursuant to Section 5.02(f)(iii); (viii) transfers of receivables and
receivables related assets or any interest therein by any Foreign Subsidiary in connection with
any factoring or similar arrangement permitted pursuant to Section 5.02(b); and (ix) other sales,
leases, transfers or dispositions of assets for fair value at the time of such sale (as reasonably
determined by Borrower) so long as (A) in the case of any sale or other disposition, in any single
transaction or series of related transactions, in which the fair value of the assets being sold,
leased, transferred or disposed of exceed $5,000,000 in any Fiscal Year and $50,000,000 during the
term of this Agreement, not less than 75% of the consideration is cash, (B) no Default or Event of
Default exists immediately before or after giving effect to any such sale, lease, transfer or other
disposition, (C) in the case of any sale, lease transfer or other disposition by any Loan Party,
the fair value of all such assets sold, leased, transferred or otherwise disposed of in any Fiscal
Year does not exceed an amount equal to $50,000,000 and (D) in the case of any sale, lease transfer
or other disposition by any Foreign Subsidiaries, the fair value of all such assets sold, leased,
transferred or otherwise disposed of (x) in any Fiscal Year does not exceed an amount equal to
$50,000,000 and (y) during the term of this Agreement does not exceed an amount equal to
$250,000,000.
XxxxβRevolving Credit and Guaranty Agreement
89
(h)
Nature of Business. Modify or alter, or permit any of its Material Subsidiaries
to modify or alter, in any material manner the nature and type of its business as conducted at or prior to the Closing Date or the manner in which such business is currently
conducted, it being understood that neither sales permitted by Section 5.02(g) nor Permitted
Acquisitions shall constitute such a material modification or alteration.
(i)
Capital Expenditures. Make, or permit any of its Subsidiaries to make, any
Capital Expenditures that would cause the aggregate of all such Capital Expenditures made by the
Borrower and its Subsidiaries during any fiscal year to exceed $375,000,000;
provided,
however, that if, for any year, the aggregate amount of capital expenditures made by the
Borrower and its Subsidiaries is less than $375,000,000 (the difference between $375,000,000 and
the amount of Capital Expenditures in such year (the β
Excess Amountβ)), the Borrower and
its Subsidiaries shall be entitled to make additional Capital Expenditures in the immediately
succeeding year in an amount equal to the Excess Amount, it being understood that the Excess Amount
for any Fiscal Year shall be deemed the first amount used in any succeeding Fiscal Year.
(j)
Mergers. Merge into or consolidate with any Person or permit any Person to merge
into it, 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 (i) for mergers or
consolidation constituting permitted Investments under Section 5.02(f) or asset dispositions
permitted pursuant to Section 5.02(g), (ii) mergers, consolidations, liquidations or dissolutions
(A) by any Loan Party (other than the Borrower) with or into any other Loan Party, (B) by any
Non-Loan Party (other than an Excluded Subsidiary) with or into any Loan Party or (C) by any
Non-Loan Party (other than an Excluded Subsidiary) with or into any other Non-Loan Party (other
than an Excluded Subsidiary);
provided that, in the case of any such merger or
consolidation, the person formed by such merger or consolidation shall be a wholly owned Subsidiary
of the Borrower, and
provided further that in the case of any such merger or
consolidation (x) to which the Borrower is a party, the Person formed by such merger or
consolidation shall be the Borrower and (y) to which a Loan Party (other than the Borrower) is a
party (other than a merger or consolidation made in accordance with subclause (B) above), the
Person formed by such merger or consolidation shall be a Loan Party on the same terms; and (iii)
the dissolution, liquidation or winding up of any subsidiary of the Borrower, provided that such
dissolution, liquidation or winding up would not reasonably be expected to have a Material Adverse
Effect and the assets of the Person so dissolved, liquidated or wound-up are distributed to the
Borrower or to another Loan Party.
(k)
Amendments of Constitutive Documents. Amend its constitutive documents, except
for amendments that would not reasonably be expected to materially affect the interests of the
Lenders.
(l)
Accounting Changes. Make or permit any changes in (i) accounting policies or
reporting practices, except as permitted or required by generally accepted accounting principles,
or (ii) its Fiscal Year.
XxxxβRevolving Credit and Guaranty Agreement
90
prohibiting or conditioning the ability of the Borrower or any such Subsidiary to (i) create any
Lien upon any of its property or assets, (ii) make dividends to,
or pay any indebtedness owed to, any Loan Party, (iii) make loans or advances to, or other investments in, any Loan Party, or
(iv) transfer any of its assets to any Loan Party other than (A) any such agreement with or in
favor of the Administrative Agent, the Collateral Agent or the Lenders or the Term Facility
Administrative Agent or the collateral agent and any lenders in respect of the Term Facility Credit
Agreement; (B) in connection with (1) any agreement evidencing any Liens permitted pursuant to
Section 5.02(a)(iii), (v), (vii), (ix) or (x) (so long as (x) in the case of agreements evidencing
Liens permitted under Section 5.02(a)(iii), such prohibitions or conditions are customary for such
Liens and the obligations they secure and (y) in the case of agreements evidencing Liens permitted
under Section 5.02(a)(v), (vii), (ix) and (x) such prohibitions or conditions relate solely to the
assets that are the subject of such Liens) or (2) any Debt permitted to be incurred under Sections
5.02(b)(iii), (vii), (viii), or (xii) above (so long as (x) in the case of agreements evidencing
Debt permitted under Section 5.02(b)(vii), such prohibitions or conditions are customary for such
Debt and (y) in the case of agreements evidencing Debt permitted under Section 5.02(b)(viii) or
(ix), such prohibitions or conditions are limited to the assets securing such Debt; (C) 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;
(D) any restriction or encumbrance imposed pursuant to an agreement that has been entered into by
the Borrower or any Subsidiary of the Borrower for the disposition of any of its property or assets
so long as such disposition is otherwise permitted under the Loan Documents; (E) any such agreement
imposed in connection with consignment agreements entered into in the ordinary course of business;
(F) customary anti-assignment provisions contained in any agreement entered into in the ordinary
course of business; (G) any agreement in existence at the time a Subsidiary is acquired so long as
such agreement was not entered into in contemplation of such acquisition; (H) such encumbrances or
restrictions required by applicable law; or (I) any agreement in existence on the Closing Date and
listed on Schedule V, the terms of which shall have been disclosed in writing to the Administrative
Agent prior to the date thereof.
(n)
Sales and Lease Backs. Except as set forth on Schedule 5.02(n), become or remain
liable as lessee or as a guarantor or other surety with respect to any lease of any property,
whether now owned or hereafter acquired (i) which such Loan Party has sold or transferred or is to
sell or transfer to any other Person (other than another Loan Party) or (ii) which such Loan Party
intends to use for substantially the same purpose as any other property which has been or is to be
sold or transferred by a Loan Party to any Person (other than another Loan Party) in connection
with such lease.
(o) Prepayments, Amendments, Etc. of Debt. (i) Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in
violation of any subordination terms of, any Subordinated Debt except (A) regularly scheduled
(including repayments of revolving facilities) or required repayments or redemptions of
Subordinated Debt permitted hereunder, (B) any prepayments or redemptions of Subordinated Debt in
connection with a refunding or refinancing of such Subordinated Debt permitted by Section 5.02(b),
or (C) any repayments of Subordinated Debt to the Company or its Subsidiaries that was permitted to
be incurred under this Agreement; provided that in the case of any prepayments or redemptions by
Loan Parties pursuant to the forgoing clauses (B) or (C), the
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91
Payment Condition shall be satisfied;
or (ii) amend, modify or change in any manner adverse to the Lenders any term or condition of any
Subordinated Debt.
(p)
Reorganization Plan. After the entry of the Confirmation Order, amend, supplement
or otherwise modify in an manner that would materially and adversely effect the rights of the
Lenders the Reorganization Plan.
(q)
Holding Company Status. In the case of any domestic Subsidiary that is a CFC,
engage in any business or activity or incur liabilities other than (i) the ownership of the Equity
Interests of a CFC, (ii) maintaining its corporate existence and (iii) activities incidental to the
businesses or activities described in the foregoing clauses (i) and (ii).
Section 5.03
Reporting Requirements. So long as any Advance shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any Commitment hereunder, the
Borrower will furnish to the Administrative Agent:
(a)
Default Notice. As soon as possible and in any event within three Business Days
after any Responsible Officer of the Borrower has knowledge of the occurrence of each Default or
within five Business Days after any Responsible Officer of the Borrower has knowledge of the
occurrence of any event, development or occurrence reasonably likely to have a Material Adverse
Effect continuing on the date of such statement, a statement of a Responsible Officer (or person
performing similar functions) of the Borrower setting forth details of such Default or other event
and the action that the Borrower has taken and proposes to take with respect thereto.
(b)
Quarterly Financials. Commencing with the Fiscal Quarter ending March 31, 2008,
as soon as available and in any event within 45 days after the end of each of the first three
quarters of each Fiscal Year (or such earlier date as the Borrower may be required by the SEC to
deliver its Form 10-Q or such later date as the SEC may permit for the delivery of the Borrowerβs
Form 10-Q), a Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such
quarter, and Consolidated statements of income and cash flows of the Borrower and its Subsidiaries
for the period commencing at the end of the previous quarter and ending with the end of such
quarter, and Consolidated statements of income and cash flows of the Borrower and its Subsidiaries
for the period commencing at the end of the previous Fiscal Year and ending with the end of such
quarter, setting forth, in each case in comparative form the corresponding figures for the
corresponding period of the immediately preceding Fiscal Year, all in reasonable detail and duly
certified (subject to normal year end audit adjustments) by a Responsible Officer of the Borrower
as having been prepared in accordance with GAAP, together with a certificate of said officer
stating that no Default has occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action that the Borrower has taken and
proposes to take with respect thereto.
(c)
Annual Financials. As soon as available and in any event no later than 90 days
following the end of the Fiscal Year ending December 31, 2007, a copy of the annual audit report
for such Fiscal Year, including therein a Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and Consolidated statements of income and cash flows
of the Borrower and its Subsidiaries for such Fiscal Year, in each case accompanied
XxxxβRevolving Credit and Guaranty Agreement
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by (A) an
opinion acceptable to the Initial Lenders of independent public accountants of recognized national
standing acceptable to the Initial Lenders, (B) a certificate of a Responsible Officer of the
Borrower stating that no Default has occurred and is continuing or, if a Default has occurred and is continuing, a statement as to the nature thereof and the action that the
Borrower has taken and proposes to take with respect thereto, and (C) for any Fiscal Year after
January 1, 2008, a schedule in form reasonably satisfactory to the Initial Lenders of the
computations used in determining, as of the end of such Fiscal Year, compliance with the covenants
contained in Sections 5.02(i) and 5.04 and the second sentence of Section 5.05, if applicable;
provided, that, in the event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for the determination of
compliance with Section 5.02(i) and 5.04 and the second sentence of Section 5.05, if applicable, a
statement of reconciliation conforming such financial statements to GAAP.
(d)
Annual Budget. As soon as available, and in any event no later than 30 days after
the end of each Fiscal Year of the Borrower, commencing with the Fiscal Year ending December 31,
2008, a reasonably detailed consolidated budget for the following Fiscal Year and each subsequent
year thereafter through the Maturity Date (including a projected Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of the following Fiscal Year), the related projected
Consolidated statements of cash flow and income for such Fiscal Year and the projected Availability
(detailing the respective Borrowing Base and the amount of aggregate Advances) expected as of the
end of each month during such Fiscal Year (collectively, the β
Projectionsβ) in the form
delivered to the board of directors of the Borrower, which Projections shall be accompanied by a
certificate of a Responsible Officer of the Borrower stating that such Projections are based on
then reasonable estimates and then available information and assumptions; it being understood that
the Projections are made on the basis of the Borrowerβs then current good faith views and
assumptions believed to be reasonable when made with respect to future events, and assumptions that
the Borrower believes to be reasonable as of the date thereof (it being understood that projections
are inherently unreliable and that actual performance may differ materially from the Projections).
(e) [Reserved]
(f) [Reserved]
(g)
ERISA Events and ERISA Reports. Promptly and in any event within 3 Business Days
after any Loan Party or any ERISA Affiliate knows or has reason to know that any ERISA Event has
occurred with respect to an ERISA Plan, a statement of a Responsible Officer of the Borrower
describing such ERISA Event and the action, if any, that such Loan Party or such ERISA Affiliate
has taken and proposes to take with respect thereto, on the date any records, documents or other
information must be furnished to the PBGC with respect to any ERISA Plan pursuant to Section 4010
of ERISA, a copy of such records, documents and information.
(h)
Plan Terminations. Promptly and in any event within two Business Days after
receipt thereof by any Loan Party or any ERISA Affiliate, copies of each notice from the PBGC
stating its intention to terminate any ERISA Plan or to have a trustee appointed to administer any
ERISA Plan.
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(i)
Actuarial Reports. Promptly upon receipt thereof by any Loan Party or any ERISA
Affiliate, a copy of the annual actuarial valuation report for each Plan the funded current liability percentage (as defined in Section 302(d)(8) of ERISA) of which is less than
90% or the unfunded current liability of which exceeds $5,000,000.
(j)
Multiemployer Plan Notices. Promptly and in any event within five Business Days
after receipt thereof by any Loan Party or any ERISA Affiliate from the sponsor of a Multiemployer
Plan, copies of each notice concerning (i) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (ii) the reorganization or termination, within the meaning of Title IV of
ERISA, of any such Multiemployer Plan or (iii) the amount of liability incurred, or that may be
incurred, by such Loan Party or any ERISA Affiliate in connection with any event described in
clause (i) or (ii) above.
(k)
Litigation. Promptly after the commencement thereof, notice of each unstayed
action, suit, investigation, litigation and proceeding before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, affecting any Loan Party
or any of its Subsidiaries that (i) is reasonably likely to be determined adversely and if so
determined adversely would be reasonably likely to have a Material Adverse Effect or (ii) purports
to affect the legality, validity or enforceability of this Agreement, any Note, any other Loan
Document or the consummation of the transactions contemplated hereby.
(l)
Securities Reports. Promptly after the sending or filing thereof, copies of all
proxy statements, financial statements and reports that the Borrower sends to its public
stockholders, copies of all regular, periodic and special reports, and all registration statements,
that the Borrower files with the Securities and Exchange Commission or any governmental authority
that may be substituted therefor, or with any national securities exchange;
provided that
such documents may be made available by posting on the Borrowerβs website.
(m)
Environmental Conditions. Promptly after the assertion or occurrence thereof,
notice of any Environmental Action against or of any non-compliance by any Loan Party or any of its
Subsidiaries with any Environmental Law or Environmental Permit that would reasonably be expected
to (i) result in a material loss or liability or (ii) cause any real property to be subject to any
restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(n)
Other Information. Such other information respecting the business, condition
(financial or otherwise), operations, performance, properties or prospects of any Loan Party or any
of its Subsidiaries as any Lender Party (through the Administrative Agent), the Administrative
Agent or any of their advisors may from time to time reasonably request.
(o)
Borrowing Base Certificate. A Borrowing Base Certificate substantially in the
form of Exhibit I as of the date required to be delivered or so requested, in each case with
supporting documentation (including, without limitation, the documentation described in Schedule 1
to Exhibit I) shall be furnished to the Administrative Agent: (i) as soon as available and in any
event prior to the Initial Extension of Credit, (ii)(A) after the Initial Extension of Credit, on
or before the 15th day following the end of each fiscal month, which monthly Borrowing Base
Certificate shall reflect the Inventory updated as of the end of each such month
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and (B) in
addition to such monthly Borrowing Base Certificates, (x) upon the occurrence and continuance of an
Event of Default or if Availability is less than $200,000,000, on or before the third Business Day following the end of each week, which weekly Borrowing Base Certificate
shall reflect the Accounts updated as of the immediately preceding Thursday; provided that
if Availability is equal to or greater than $250,000,000 for three consecutive Business Days, such
Borrowing Base Certificate shall be delivered pursuant to clause (ii)(A) herein and (y) at the
option of the Borrower, weekly updates of Accounts, certified by a Responsible Officer, and (iii)
if requested by the Administrative Agent at any other time when the Administrative Agent reasonably
believe that the then existing Borrowing Base Certificate is materially inaccurate, as soon as
reasonably available after such request, in each case with supporting documentation as the Initial
Lenders may reasonably request (including without limitation, the documentation described on
Schedule 1 to Exhibit I).
Documents required to be delivered pursuant to Section 5.01 or this Section 5.03 (to the
extent any such documents are included in materials otherwise filed with the SEC) may be delivered
electronically and if so delivered, shall be deemed to have been delivered on the date of receipt
by the Administrative Agent irrespective of when such document or materials are posted on the
Borrowerβs behalf on IntraLinks/IntraAgency or another relevant website (the βInformational
Websiteβ), if any, to which each Lender and the Agents have unrestricted access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that the accommodation provided by the foregoing sentence shall not impair the right of the
Administrative Agent to request and receive from the Loan Parties physical delivery of any specific
information provided for in Section 5.01 or this Section 5.03. Other than with respect to the bad
faith, gross negligence or willful misconduct on the part of the Lead Arrangers, Agents or Lenders,
none of the Lead Arrangers, Agents or the Lenders shall have any liability to any Loan Party, each
other or any of their respective Affiliates associated with establishing and maintaining the
security and confidentiality of the Informational Website and the information posted thereto.
Section 5.04
Financial Covenant. So long as any Financial Covenant Trigger Event
shall have occurred and be continuing, the Consolidated Fixed Charge Coverage Ratio, for the most
recently ended Fiscal Quarter for which financial statements have been delivered pursuant to
Section 5.03(b), shall not be less than 1.1 to 1.0.
Section 5.05
Monthly Financial Statements and Minimum EBITDA During Syndication. For
each month following the Closing Date (other than December or January) until the Joint Bookrunners
notify the Borrower that the Senior Credit Facilities have been successfully syndicated (as
determined in accordance with the Fee Letter), as soon as available and in any event no later than
thirty (30) days after the end of each such month, the Borrower shall deliver to the Initial
Lenders and the Agents a Consolidated balance sheet of the Borrower and its Subsidiaries as of the
end of such month, and Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous month and ending with the end of
such month, and Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous Fiscal Year and ending with the
end of such month, all in reasonable detail and duly certified (subject to normal year end audit
adjustments) by a Responsible Officer of the Borrower as having been prepared in accordance with
GAAP, together with a certificate of said officer
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stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as to the nature thereof
and the action that the Borrower has taken and proposes to take with respect thereto. The financial statements delivered pursuant to this
Section 5.05 shall evidence Consolidated EBITDA of the Borrower (calculated in a manner reasonably
satisfactory to the Administrative Agent), for the latest twelve-month period for which financial
statements are then available, of not less than $380,000,000, in the case of any twelve-month
period ending on or prior to November 30, 2007, and of not less than $400,000,000, in the case of
any twelve-month period thereafter.
ARTICLE VI
Section 6.01
Events of Default. If any of the following events (β
Events of
Defaultβ) shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Advance or any unreimbursed drawing
with respect to any Letter of Credit when the same shall become due and payable or any Loan Party
shall fail to make any payment of interest on any Advance or any other payment under any Loan
Document within five Business Days after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or any of its officers) under or in
connection with any Loan Document shall prove to have been incorrect in any material respect, only
to the extent that such representation and warranty is not otherwise qualified by materiality or
Material Adverse Effect, when made or deemed made; or
(c) any Loan Party shall fail to perform or observe (i) any term, covenant or agreement
contained in Sections 2.14, 5.01(i), 5.01(u), 5.02, 5.03, 5.04 or 5.05 or (ii) any term, covenant
or agreement (other than those listed in clause (i) above) contained in Article V hereof, if such
failure shall remain unremedied for 5 Business Days; or
(d) any Loan Party shall fail to perform any other term, covenant or agreement contained in
any Loan Document on its part to be performed or observed if such failure shall remain unremedied
for after the earlier of 30 days after (i) an Responsible Officer of any Loan Party obtaining
knowledge of such default or (ii) the Borrower receiving notice of such default from any Agent or
any Lender (any such notice to be identified as a notice of default and to refer specifically to
this paragraph); or
(e) (i) any Loan Party or any of its Subsidiaries shall fail to pay any principal of, premium
or interest on or any other amount payable in respect of one or more items of Debt of the Loan
Parties and their Subsidiaries (excluding Debt outstanding hereunder and under the Term Facility)
that is outstanding in an aggregate principal or notional amount (or, in the case of any Hedge
Agreement, an Agreement Value) of at least $50,000,000 when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
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the agreements or
instruments relating to all such Debt; or (ii) any other event shall occur or condition shall exist
under the agreements or instruments relating to one or more items of Debt of the Loan Parties and their Subsidiaries (excluding Debt outstanding hereunder) that is
outstanding in an aggregate principal or notional amount of at least $50,000,000, and such other
event or condition shall continue after the applicable grace period, if any, specified in all such
agreements or instruments, if the effect of such event or condition is to accelerate, or to permit
the acceleration of, the maturity of such Debt or otherwise to cause, or to permit the holder
thereof to cause, such Debt to mature; provided that in the case of an occurrence of an βEvent of
Defaultβ under and as defined in the Term Facility Credit Agreement (other than a payment default
pursuant to Section 6.01(a) of the Term Facility Credit Agreement), and such βEvent of Defaultβ
shall remain uncured or unwaived for a period of 90 consecutive days (or such earlier date on which
remedies are exercised in respect of the collateral securing such Debt); or (iii) one or more items
of Debt of the Loan Parties and their Subsidiaries (excluding Debt outstanding hereunder and under
the Term Facility) that is outstanding in an aggregate principal or notional amount (or, in the
case of any Hedge Agreement, an Agreement Value) of at least $50,000,000, shall be declared to be
due and payable or required to be prepaid or redeemed (other than by a regularly scheduled or
required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase
or defease such Debt shall be required to be made, in each case prior to the stated maturity
thereof; or
(f) any Loan Party or any of its Material Subsidiaries shall generally not pay its debts as
such debts become due, or shall admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or
against any Loan Party or any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee or other similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by it) that is being
diligently contested by it in good faith, either such proceeding shall remain undismissed or
unstayed for a period of 60 days or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or any substantial part of its property) shall
occur; or any Loan Party or any of its Subsidiaries shall take any corporate action to authorize
any of the actions set forth above in this subSection (f); or
(g) one or more final, non-appealable judgments or orders for the payment of money in excess
of $50,000,000 (exclusive of any judgment or order the amounts of which are fully covered by
insurance (less any applicable deductible) which is not in dispute) in the aggregate at any time,
shall be rendered against any Loan Party or any of its Subsidiaries and enforcement proceedings
shall have been commenced by any creditor upon such judgment or order; or
(h) one or more nonmonetary judgments or orders shall be rendered against any Loan Party or
any of its Subsidiaries that is reasonably likely to have a Material Adverse Effect, and there
shall be any period of 10 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or
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(i) any provision of any Loan Document after delivery thereof pursuant to Section 3.01 shall
for any reason cease to be valid and binding on or enforceable against any Loan Party intended to
be a party to it, or any such Loan Party shall so state in writing; or
(j) any Collateral Document after delivery thereof pursuant to Section 3.01 shall for any
reason (other than pursuant to the terms thereof) cease to create a valid and perfected lien on and
security interest in the Collateral purported to be covered thereby; or
(k) any ERISA Event shall have occurred with respect to a Plan and the sum (determined as of
the date of occurrence of such ERISA Event) of the Insufficiency of such Plan and the Insufficiency
of any and all other Plans with respect to which an ERISA Event shall have occurred and then exist
(or the liability of the Loan Parties and the ERISA Affiliates related to such ERISA Event) is
reasonably likely to have a Material Adverse Effect; or
(l) any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in an
amount that, when aggregated with all other amounts required to be paid to Multiemployer Plans by
the Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined as of the date of
such notification), exceeds $50,000,000 or requires payments exceeding $25,000,000 per annum; or
(m) any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, and as a result of such reorganization or termination the
aggregate annual contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or termination occurs by an amount
exceeding $20,000,000; or
(n) any challenge by any Loan Party to the validity of any Loan Document or the applicability
or enforceability of any Loan Document or which seeks to void, avoid, limit, or otherwise adversely
affect the security interest created by or in any Loan Document or any payment made pursuant
thereto; or
(o) a Change of Control shall occur;
then, and in any such event, the Administrative Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the obligation of each Lender
to make Advances (other than Letter of Credit Advances by the Issuing Banks or a Lender pursuant to
Section 2.03(c) and Swing Line Advances by a Lender pursuant to Section 2.02(b)) and of the Issuing
Banks to issue Letters of Credit to be terminated, whereupon the same shall forthwith terminate,
and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the Notes, all interest thereon and all other amounts payable under this
Agreement and the other Loan Documents to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be
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forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower.
Section 6.02
Actions in Respect of the Letters of Credit upon Default. If any Event
of Default shall have occurred and be continuing, the Administrative Agent may, or shall at the
request of the Required Lenders, irrespective of whether it is taking any of the actions described
in Section 6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such demand the
Borrower will, pay to the Administrative Agent on behalf of the Lender Parties in same day funds at
the Administrative Agentβs office designated in such demand, for deposit in the L/C Cash Collateral
Account, an amount equal to 105% of the aggregate Available Amount of all Letters of Credit then
outstanding. If at any time the Administrative Agent determines that any funds held in the L/C
Cash Collateral Account are subject to any right or claim of any Person other than the
Administrative Agent and the Lender Parties or that the total amount of such funds is less than the
aggregate Available Amount of all Letters of Credit, the Borrower will, forthwith upon demand by
the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and
held in the L/C Cash Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the L/C Cash Collateral
Account that the Administrative Agent determines to be free and clear of any such right and claim.
ARTICLE VII
Section 7.01
Appointment and Authorization of the Agents. (a) Each Lender Party
hereby irrevocably appoints, designates and authorizes each of the Agents to take such action on
its behalf under the provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of this Agreement or
any other Loan Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere herein or in any other Loan
Document, no Agent shall have any duties or responsibilities, except those expressly set forth
herein, nor shall any Agent have or be deemed to have any fiduciary relationship with any Lender
Party or participant, 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
such Agent. Without limiting the generality of the foregoing sentence, the use of the term βagentβ
herein and in the other Loan Documents with reference to any Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable
law. Instead, such term is used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting parties. Each Issuing
Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith, and each Issuing Bank shall have all of the benefits and immunities
(i) provided to each Agent in this Article VII with respect to any acts taken or omissions suffered
by such Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by
it and the applications and agreements for letters of credit pertaining to such Letters of Credit
as fully as if the term βAgentβ as used in this Article VII and in the definition of βAgent-Related
Personβ
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included such Issuing Bank with respect to such acts or omissions, and (ii) as additionally
provided herein with respect to such Issuing Bank. The provisions of this Article VII are solely
for the benefit of the Administrative Agent and the Lender Parties, and neither the Borrower nor
any other Loan Party shall have rights as a third party beneficiary of any such provisions.
(b) Citigroup Global Markets Inc. hereby appoints Citicorp USA, Inc. to act as βcollateral
agentβ or as βadministrative agentβ solely for the purpose of negotiating, executing, accepting
delivery of and otherwise acting pursuant to collateral access agreements, Landlord Lien Waivers or
any other similar agreement.
(a) Each Agent may execute any of its duties under this Agreement or any other Loan Document
by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties. No Agent shall be
responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects in
the absence of gross negligence or willful misconduct.
(b) Without limitation of the provisions of Section 7.02(a), it is the purpose of this
Agreement and the other Loan Documents that there shall be no violation of any law of any
jurisdiction denying or restricting the right of banking corporations or associations to transact
business as agent or trustee in such jurisdiction. It is recognized that in case of litigation
under this Agreement or any of the other Loan Documents, and in particular in case of the
enforcement of any of the Loan Documents, or in case the Collateral Agent deems that by reason of
any present or future law of any jurisdiction it may not exercise any of the rights, powers or
remedies granted herein or in any of the other Loan Documents or take any other action which may be
desirable or necessary in connection therewith, it may be necessary that the Collateral Agent
appoint an additional individual or institution as a separate trustee, co-trustee, collateral
agent, collateral sub-agent or collateral co-agent (any such additional individual or institution
being referred to herein as a βSupplemental Collateral Agentβ).
(c) In the event that the Collateral Agent appoints a Supplemental Collateral Agent with
respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended
by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to
the Collateral Agent with respect to such Collateral shall be exercisable by and vest in such
Supplemental Collateral Agent to the extent, and only to the extent, necessary to enable such
Supplemental Collateral Agent to exercise such rights, powers and privileges with respect to such
Collateral and to perform such duties with respect to such Collateral, and every covenant and
obligation contained in the Loan Documents and necessary to the exercise or performance thereof by
such Supplemental Collateral Agent shall run to and be enforceable by either the Collateral Agent
or such Supplemental Collateral Agent, and (ii) the provisions of this Article and of Section 10.04
that refer to the Collateral Agent shall inure to the benefit of such Supplemental Collateral Agent
and all references therein to the Collateral Agent shall be deemed to be references to the
Collateral Agent and/or such Supplemental Collateral Agent, as the context may require.
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(d) Should any instrument in writing from any Loan Party be required by any Supplemental
Collateral Agent so appointed by the Collateral Agent for more fully and certainly vesting in and
confirming to him or it such rights, powers, privileges and duties, such Loan Party shall execute,
acknowledge and deliver any and all such instruments promptly upon request by the Collateral Agent.
In case any Supplemental Collateral Agent, or a successor thereto, shall die, become incapable of
acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental
Collateral Agent, to the extent permitted by law, shall vest in and be exercised by the Collateral
Agent until the appointment of a new Supplemental Collateral Agent.
(a) The Administrative Agentβs duties hereunder and under the other Loan Documents are solely
ministerial and administrative in nature and the Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent shall not have any duty to take
any discretionary action or exercise any discretionary powers, but shall be required to act or
refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the
written direction of the Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its opinion or the opinion
of its counsel, may expose the Administrative Agent or any of its Affiliates to liability or that
is contrary to any Loan Document or applicable law.
(b) No Agent-Related Person shall (a) be liable for any action taken or omitted to be taken by
any of them under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful misconduct in
connection with its duties expressly set forth herein), or (b) be responsible in any manner to any
Lender Party or participant for any recital, statement, representation or warranty made by any Loan
Party or any officer thereof, contained herein or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in, or received by any
Agent under or in connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of any Loan Party or any other party to any Loan Document to perform
its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to
any Lender Party or participant to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or
to inspect the properties, books or records of any Loan Party or any Affiliate thereof.
(c) Nothing in this Agreement or any other Loan Document shall require the Administrative
Agent or any of its Agent-Related Persons to carry out any βknow your customerβ or other checks in
relation to any person on behalf of any Lender Party and each Lender Party confirms to the
Administrative Agent that it is solely responsible for any such checks it is required to carry out
and that it may not rely on any statement in relation to such checks made by the Administrative
Agent or any of its Agent-Related Persons.
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Section 7.04
Reliance by Agents. (a) Each Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, electronic mail message, statement 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 any Loan Party), independent
accountants and other experts selected by such Agent, as applicable. Each Agent shall be fully
justified in failing or refusing to take any action under any Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or continuing to take any
such action. Each Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a request or consent of
the Required Lenders (or such greater number of Lenders as may be expressly required hereby in any
instance) and such request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.
(b) For purposes of determining compliance with the conditions specified in Section 3.01, each
Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or
to be satisfied with, each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to a Lender unless the relevant Agent or Agents shall
have received notice from such Lender prior to the Closing Date specifying its objection thereto.
Section 7.05
Notice of Default. No Agent shall be deemed to have knowledge or notice
of the occurrence of any Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to any Agent for the account of the Lenders, unless such
Agent shall have received written notice from a Lender or the Borrower referring to this Agreement,
describing such Default and stating that such notice is a βNotice of Default.β The Administrative
Agent will notify the Lenders of its receipt of any such notice. The Administrative Agent, in
consultation with the Initial Lenders, shall take such action with respect to such Default as may
be directed by the Required Lenders in accordance with Article VI;
provided,
however, that unless and until the Administrative Agent has received any such direction, it
may (but shall not be obligated to) take such action, or refrain from taking such action, in each
case, in consultation with the Initial Lenders, with respect to such Default as it shall deem
advisable or in the best interest of the Lenders.
Section 7.06
Credit Decision; Disclosure of Information by Agents. Each Lender
acknowledges that no Agent-Related Person has made any representation or warranty to it, and that
no act by any Agent hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender as to any matter, including
whether Agent-Related Persons have disclosed material information in their possession. Each Lender
represents to the Agents that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Loan Parties and their
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respective Subsidiaries, and all applicable bank or other regulatory Laws relating to the
transactions contemplated hereby, and made its own decision to enter into this Agreement and to
extend credit to the Borrower hereunder. Each Lender also represents that it will, independently
and without reliance upon any Agent-Related Person 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 investigations as it deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and creditworthiness of the Borrower. Except
for notices, reports and other documents expressly required to be furnished to the Lenders by any
Agent herein, such Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations, property, financial and
other condition or creditworthiness of any of the Loan Parties or any of their respective
Affiliates which may come into the possession of any Agent-Related Person.
Section 7.07
Indemnification of Agents. Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand each Agent-Related Person (to the
extent not reimbursed by or on behalf of any Loan Party and without limiting the obligation of any
Loan Party to do so), pro rata, and hold harmless each Agent-Related Person from and against any
and all Indemnified Liabilities incurred by it;
provided,
however, that no Lender
shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted primarily from such Agent-Related Personβs own gross negligence or
willful misconduct;
provided,
however, that no action taken in accordance with the
directions of the Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the foregoing, each Lender shall
reimburse each Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including reasonable fees and expenses of counsel) incurred by any Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or
referred to herein, to the extent that such Agent is not reimbursed for such expenses by or on
behalf of the Borrower. The undertaking in this Section shall survive termination of the
Commitments, the payment of all other Obligations and the resignation of each of the Agents. In
the case of an investigation, litigation or other proceeding to which the indemnity in this Section
7.07 applies, such indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Lender Party, its directors, shareholders or creditors and whether or
not the transactions contemplated hereby are consummated.
(a) CUSA, CGMI, LBI and Barclays and their respective Affiliates may make loans to, issue
letters of credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting or other business
with each of the Loan Parties and their respective Affiliates as though CUSA, CGMI, LBI and
Barclays, as the case may be, were not an Agent or Issuing Bank hereunder, as the case
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may be, and without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, each of CUSA, CGMI, LBI and Barclays and each of their respective
Affiliates may receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such Loan Party or such
Affiliate) and acknowledge that each of CUSA, CGMI, LBI and Barclays and their respective
Affiliates shall be under no obligation to provide such information to them. With respect to its
Advances, each of CUSA, CGMI, LBI and Barclays and their respective Affiliates shall have the same
rights and powers under this Agreement as any other Lender and may exercise such rights and powers
as though it were not an Agent, the Swing Line Lender or an Issuing Bank, as the case may be, and
the terms βLenderβ and βLendersβ include CUSA, CGMI, LBI and Barclays in its individual capacity.
(b) Each Lender Party understands that the Administrative Agent, acting in its individual
capacity, and its Affiliates (collectively, the βAgentβs Groupβ) are engaged in a wide
range of financial services and businesses (including investment management, financing, securities
trading, corporate and investment banking and research) (such services and businesses are
collectively referred to in this Section 7.08(b) as βActivitiesβ) and may engage in the
Activities with or on behalf of one or more of the Loan Parties or their respective Affiliates.
Furthermore, the Agentβs Group may, in undertaking the Activities, engage in trading in financial
products or undertake other investment businesses for its own account or on behalf of others
(including the Loan Parties and their Affiliates and including holding, for its own account or on
behalf of others, equity, debt and similar positions in the Borrower, another Loan Party or their
respective Affiliates), including trading in or holding long, short or derivative positions in
securities, loans or other financial products of one or more of the Loan Parties or their
Affiliates. Each Lender Party understands and agrees that in engaging in the Activities, the
Agentβs Group may receive or otherwise obtain information concerning the Loan Parties or their
Affiliates (including information concerning the ability of the Loan Parties to perform their
respective Obligations hereunder and under the other Loan Documents) which information may not be
available to any of the Lender Parties that are not members of the Agentβs Group. None of the
Administrative Agent nor any member of the Agentβs Group shall have any duty to disclose to any
Lender Party or use on behalf of the Lender Parties, and shall not be liable for the failure to so
disclose or use, any information whatsoever about or derived from the Activities or otherwise
(including any information concerning the business, prospects, operations, property, financial and
other condition or creditworthiness of any Loan Party or any Affiliate of any Loan Party) or to
account for any revenue or profits obtained in connection with the Activities, except that the
Administrative Agent shall deliver or otherwise make available to each Lender Party such documents
as are expressly required by any Loan Document to be transmitted by the Administrative Agent to the
Lender Parties.
(c) Each Lender Party further understands that there may be situations where members of the
Agentβs Group or their respective customers (including the Loan Parties and their Affiliates)
either now have or may in the future have interests or take actions that may conflict with the
interests of any one or more of the Lender Parties (including the interests of the Lender Parties
hereunder and under the other Loan Documents). Each Lender Party agrees that no member of the
Agentβs Group is or shall be required to restrict its activities as a result of the Administrative
Agent being a member of the Agentβs Group, and that each member of the Agentβs Group may undertake
any Activities without further consultation with or notification to
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any Lender Party. None of (i) this Agreement nor any other Loan Document, (ii) the receipt by
the Agentβs Group of information (including Communications) concerning the Loan Parties or their
Affiliates (including information concerning the ability of the Loan Parties to perform their
respective Obligations hereunder and under the other Loan Documents) nor (iii) any other matter
shall give rise to any fiduciary, equitable or contractual duties (including without limitation any
duty of trust or confidence) owing by the Administrative Agent or any member of the Agentβs Group
to any Lender Party including any such duty that would prevent or restrict the Agentβs Group from
acting on behalf of customers (including the Loan Parties or their Affiliates) or for its own
account.
Section 7.09
Successor Agent. Each Agent may resign from acting in such capacity upon
30 daysβ notice to the Lenders and the Borrower;
provided that any such resignation by CUSA
shall also constitute the resignation by CUSA as Issuing Bank. If an Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders. If no successor agent is appointed prior to the effective date of the resignation of such
Agent, such Agent may appoint, after consulting with the Lenders, a successor agent from among the
Lenders. Upon the acceptance of its appointment as successor agent hereunder, the Person acting as
such successor agent shall succeed to all the rights, powers and duties of the retiring Agent and
Issuing Bank and the term βAgentβ shall mean such successor agent, and the retiring Agentβs
appointment, powers and duties as Agent shall be terminated and in the case of the Administrative
Agent, the retiring Issuing Bankβs rights, powers and duties as such shall be terminated, without
any other or further act or deed on the part of such retiring Agent or Issuing Bank, as the case
may be, or any other Lender, other than the obligation of the successor Issuing Bank to issue
letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or to make other arrangements satisfactory to the retiring Issuing Bank to
effectively assume the obligations of the retiring with respect to such Letters of Credit. After
any retiring Agentβs resignation hereunder as Agent, the provisions of this Article VII and Section
10.04 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement. If no successor agent has accepted appointment as Agent by the date
which is 30 days following a retiring Agentβs notice of resignation, the retiring Agentβs
resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Agent hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.
Section 7.10
Administrative Agent May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Advance shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether any Agent shall have made any
demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Advances and all other Obligations that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to have the claims of the Lenders
and the Agents (including any claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders and the Agents and their respective agents and
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counsel and all other amounts due the Lenders and the Agents under Sections 2.08 and 10.04)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due to the Administrative Agent under Sections 2.08 and
10.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
Section 7.11
Collateral and Guaranty Matters. The Lenders irrevocably authorize the
Administrative Agent and the Collateral Agent, at their option and in their discretion,
(a) to release any Lien on any property granted to or held by the Administrative Agent or the
Collateral Agent under any Loan Document (i) upon termination of the Commitments and payment in
full of all Obligations (other than contingent indemnification obligations) and the expiration or
termination of all Letters of Credit, (ii) that is sold or to be sold as part of or in connection
with any sale permitted hereunder or under any other Loan Document, or (iii) subject to Section
10.01, if approved, authorized or ratified in writing by the Required Lenders;
(b) to subordinate any Lien on any property granted to or held by the Administrative Agent or
the Collateral Agent under any Loan Document to the holder of any Lien on such property that is
permitted by Section 5.02(a);
(c) to release any Guarantor from its obligations under the Guaranty if such Person ceases to
be a Subsidiary as a result of a transaction permitted hereunder or if all of such Personβs assets
are sold or liquidated as permitted under the terms of the Loan Documents and the proceeds thereof
are distributed to the Borrower; and
(d) to acquire, hold and enforce any and all Liens on Collateral granted by and of the Loan
Parties to secure any of the Secured Obligations, together with such other powers and discretion as
are reasonably incidental thereto.
Upon request by the Administrative Agent or the Collateral Agent at any time, the Required
Lenders (acting on behalf of all the Lenders) will confirm in writing the Administrative Agentβs
authority to release Liens or subordinate the interests of the Secured Parties in particular
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types or items of property, or to release any Guarantor from its obligations under the
Guaranty pursuant to this Section 7.11.
Section 7.12
Other Agents; Arrangers and Managers. None of the Lenders or other
Persons identified on the facing page or signature pages of this Agreement as a βsyndication
agent,β βbook runner,β βdocumentation agent,β βarranger,β or βlead arrangerβ shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other than, in the case
of such Lenders, those applicable to all Lenders as such. Without limiting the foregoing, none of
the Lenders or other Persons so identified shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely,
on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
Section 7.13
Intercreditor Arrangements. Each of the Lender Parties hereby acknowledges
that it has received and reviewed the Intercreditor Agreement and agrees to be bound by the terms
thereof. Each Lender Party (and each Person that becomes a Lender Party hereunder pursuant to
Section 10.07) hereby (i) acknowledges that Citicorp USA, Inc. is acting under the Intercreditor
Agreement in multiple capacities as the Administrative Agent (and/or the Collateral Agent) and the
Term Facility Administrative Agent (and/or the βCollateral Agentβ under the Term Facility) and (ii)
waives any conflict of interest, now contemplated or arising hereafter, in connection therewith and
agrees not to assert against Citicorp USA, Inc. any claims, causes of action, damages or
liabilities of whatever kind or nature relating thereto. Each Lender Party (and each Person that
becomes a Lender Party hereunder pursuant to Section 10.07) hereby authorizes and directs Citicorp
USA, Inc. to enter into the Intercreditor Agreement on behalf of such Lender Party and agrees that
Citicorp USA, Inc., in its various capacities thereunder, may take such actions on its behalf as is
contemplated by the terms of the Intercreditor Agreement. In the event of any conflict between the
terms of the Intercreditor Agreement and the Collateral Documents, the terms of the Intercreditor
Agreement shall govern and control except as expressly set forth in the Intercreditor Agreement.
ARTICLE VIII
Section 8.01
Subsidiary Guaranty. Each Guarantor, severally, unconditionally and
irrevocably guarantees (the undertaking by each Guarantor under this Article VIII being the
β
Guarantyβ) the punctual payment when due, whether at scheduled maturity or at a date fixed
for prepayment or by acceleration, demand or otherwise, of all of the Obligations of each of the
other Loan Parties now or hereafter existing under or in respect of the Loan Documents (including,
without limitation, any extensions, modifications, substitutions, amendments or renewals of any or
all of the foregoing Obligations), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premium, fees, indemnification payments, contract causes of action, costs,
expenses or otherwise (such Obligations being the β
Guaranteed Obligationsβ), and agrees to
pay any and all expenses (including, without limitation, reasonable fees and expenses of counsel)
incurred by the Administrative Agent or any of the other Secured
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Parties solely in enforcing any rights under this Guaranty. Without limiting the generality
of the foregoing, each Guarantorβs liability shall extend to all amounts that constitute part of
the Guaranteed Obligations and would be owed by any of the other Loan Parties to the Administrative
Agent or any of the other Secured Parties under or in respect of the Loan Documents but for the
fact that they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such other Loan Party.
Section 8.02
Guaranty Absolute. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Administrative Agent or any other Secured Party with respect thereto.
The Obligations of each Guarantor under this Guaranty are independent of the Guaranteed Obligations
or any other Obligations of any Loan Party under the Loan Documents, and a separate action or
actions may be brought and prosecuted against such Guarantor to enforce this Guaranty, irrespective
of whether any action is brought against any other Loan Party or whether any other Loan Party is
joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be
absolute, unconditional and irrevocable irrespective of, and such Guarantor hereby irrevocably
waives any defenses it may now or hereafter have in any way relating to, any and all of the
following:
(a) any lack of validity or enforceability of any Loan Document or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other term of, all or any
of the Guaranteed Obligations or any other Obligations of any Loan Party under the Loan Documents,
or any other amendment or waiver of or any consent to departure from any Loan Document, including,
without limitation, any increase in the Guaranteed Obligations resulting from the extension of
additional credit to any Loan Party or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or nonperfection of any Collateral, or any taking, release
or amendment or waiver of or consent to departure from any Subsidiary Guaranty or any other
guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of Collateral, or proceeds thereof, to all or any of the
Guaranteed Obligations, or any manner of sale or other disposition of any Collateral for all or any
of the Guaranteed Obligations or any other Obligations of any Loan Party under the Loan Documents,
or any other property and assets of any other Loan Party or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or existence of any
other Loan Party or any of its Subsidiaries;
(f) any failure of the Administrative Agent or any other Secured Party to disclose to any Loan
Party any information relating to the financial condition, operations, properties or prospects of
any other Loan Party now or hereafter known to the Administrative Agent or such other Secured
Party, as the case may be (such Guarantor waiving any duty on the part of the Secured Parties to
disclose such information);
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(g) the failure of any other Person to execute this Guaranty or any other guarantee or
agreement of the release or reduction of the liability of any of the other Loan Parties or any
other guarantor or surety with respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any statute of limitations or any
existence of or reliance on any representation by the Administrative Agent or any other Secured
Party) that might otherwise constitute a defense available to, or a discharge of, such Guarantor,
any other Loan Party or any other guarantor or surety other than payment in full in cash of the
Guaranteed Obligations.
This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by the
Administrative Agent or any other Secured Party or by any other Person upon the insolvency,
bankruptcy or reorganization of any other Loan Party or otherwise, all as though such payment had
not been made.
Section 8.03
Waivers and Acknowledgments. (a) Each Guarantor hereby unconditionally
and irrevocably waives promptness, diligence, notice of acceptance and any other notice with
respect to any of the Guaranteed Obligations and this Guaranty, and any requirement that the
Administrative Agent or any other Secured Party protect, secure, perfect or insure any Lien or any
property or assets subject thereto or exhaust any right or take any action against any other Loan
Party or any other Person or any Collateral.
(b) Each Guarantor hereby unconditionally waives any right to revoke this Guaranty, and
acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations,
whether existing now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by
reason of any claim or defense based upon an election of remedies by the Secured Parties which in
any manner impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other
rights to proceed against any of the other Loan Parties, any other guarantor or any other Person or
any Collateral, and (ii) any defense based on any right of setoff or counterclaim against or in
respect of such Guarantorβs obligations hereunder.
(d) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits
from the financing arrangements contemplated by the Loan Documents and that the waivers set forth
in Section 8.02 and this Section 8.03 are knowingly made in contemplation of such benefits.
Section 8.04
Subrogation. Each Guarantor hereby unconditionally and irrevocably
agrees not to exercise any rights that it may now have or may hereafter acquire against any other
Loan Party or any other insider guarantor that arise from the existence, payment, performance or
enforcement of its Obligations under this Guaranty or under any other Loan Document, including,
without limitation, any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the Administrative Agent or
any other Secured Party against such other Loan Party or any
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other insider guarantor or any Collateral, whether or not such claim, remedy or right arises
in equity or under contract, statute or common law, including, without limitation, the right to
take or receive from such other Loan Party or any other insider guarantor, directly or indirectly,
in cash or other property or by set-off or in any other manner, payment or security on account of
such claim, remedy or right, until such time as all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall have been paid in full in cash, all of the Letters of
Credit and all Secured Hedge Agreements shall have expired or been terminated and the Commitments
shall have expired or terminated. If any amount shall be paid to any Guarantor in violation of the
immediately preceding sentence at any time prior to the latest of (a) the payment in full in cash
of all of the Guaranteed Obligations and all other amounts payable under this Guaranty, (b) the
latest date of expiration or termination of all Letters of Credit and all Secured Hedge Agreements,
and (c) the Termination Date, such amount shall be held in trust for the benefit of the
Administrative Agent and the other Secured Parties and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as Collateral for any Guaranteed Obligations or other amounts payable
under this Guaranty thereafter arising. If (i) any Guarantor shall pay to the Administrative Agent
all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall have been paid in full in cash, (iii) all Letters of
Credit and all Secured Hedge Agreements shall have expired or been terminated, and (iv) the
Termination Date shall have occurred, the Administrative Agent and the other Secured Parties will,
at such Guarantorβs request and expense, execute and deliver to such Guarantor appropriate
documents, without recourse and without representation or warranty, necessary to evidence the
transfer of subrogation to such Guarantor of an interest in the Guaranteed Obligations resulting
from the payment made by such Guarantor.
Section 8.05
Additional Guarantors. Upon the execution and delivery by any Person of
a guaranty joinder agreement in substantially the form of Exhibit H hereto (each, a βGuaranty
Supplementβ), (i) such Person shall be referred to as an βAdditional Guarantorβ and shall become
and be a Guarantor hereunder, and each reference in this Guaranty to a βGuarantorβ shall also mean
and be a reference to such Additional Guarantor, and each reference in any other Loan Document to a
βGuarantorβ shall also mean and be a reference to such Additional Guarantor, and (ii) each
reference herein to βthis Guarantyβ, βhereunderβ, βhereofβ or words of like import referring to
this Guaranty, and each reference in any other Loan Document to the βGuarantyβ, βthereunderβ,
βthereofβ or words of like import referring to this Guaranty, shall include each such duly executed
and delivered Guaranty Supplement.
Section 8.06
Continuing Guarantee; Assignments. This Guaranty is a continuing
guaranty and shall (a) remain in full force and effect until the latest of (i) the payment in full
in cash of all of the Guaranteed Obligations and all other amounts payable under this Guaranty,
(ii) the latest date of expiration or termination of all Letters of Credit and all Secured Hedge
Agreements, and (iii) the Termination Date, (b) be binding upon each Guarantor and its successors
and assigns and (c) inure to the benefit of, and be enforceable by, the Administrative Agent and
the other Secured Parties and their respective successors, transferees and assigns. Without
limiting the generality of clause (c) of the immediately preceding sentence, any Lender Party may
assign or otherwise transfer all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or any portion of its Commitment or Commitments,
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the Advances owing to it and the Notes held by it) to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect thereof granted to such Lender Party
under this Article VIII or otherwise, in each case as provided in Section 10.07.
Section 8.07
No Reliance. Each Guarantor has, independently and without reliance upon
any Agent or any Lender Party and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Guaranty and each other
Loan Document to which it is or is to be a party, and such Guarantor has established adequate means
of obtaining from each other Loan Party on a continuing basis information pertaining to, and is now
and on a continuing basis will be completely familiar with, the business, condition (financial or
otherwise), operations, performance, properties and prospects of such other Loan Party.
Section 8.08
No Reliance. Each Guarantor which is incorporated or formed under the laws of
a jurisdiction located within the United States, and by its acceptance of this Guaranty, the Agents
and each Secured Party, hereby confirms that it is the intention of all such Persons that this
Guaranty and the Guaranteed Obligations of such Guarantor hereunder not constitute a fraudulent
transfer or conveyance for purposes of U.S. bankruptcy laws, the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent
applicable to this Guaranty and the Guaranteed Obligations of such Guarantor hereunder. To
effectuate the foregoing intention, the Agents, the Secured Parties and such Guarantors hereby
irrevocably agree that the Guaranteed Obligations of such Guarantor under this Guaranty at any time
shall be limited to the maximum amount as will not result in the Guaranteed Obligations of such
Guarantor under this Guaranty constituting a fraudulent transfer or conveyance.
ARTICLE IX
[RESERVED]
ARTICLE X
Section 10.01
Amendments, Etc. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other
Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders (or the
Initial Lenders, as applicable) and the Borrower or the applicable Loan Party, as the case may be,
and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided,
however, that no such amendment, waiver or consent shall;
(a) waive any condition set forth in Section 3.01(a) without the written consent of each
Initial Lender;
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(b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 2.05 or Section 6.01) without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under
any other Loan Document without the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on, any Advance, or any
fees or other amounts payable hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby;
(e) change (i) Section 2.02(a) in a manner that would alter the pro rata nature of Borrowings
required thereby or (ii) Section 2.13 in a manner that would alter the pro rata sharing of payments
required thereby, in each case with respect to clauses (i) and (ii) of this Section 10.01(e),
without the written consent of each Lender;
(f) change the definition of βRequired Lendersβ or any other provision hereof specifying the
number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder
or grant any consent hereunder, without the written consent of each Lender;
(g) [Reserved];
(h) except in connection with a transaction permitted under this Agreement, release all or
substantially all of the value of the Guarantors from the Guaranty or release all or substantially
all of the Collateral without the written consent of each Lender; and
(i) increase the advance rates set forth in the definition of the term βBorrowing Baseβ, add
new asset categories to the Borrowing Base or otherwise cause the Borrowing Base or availability
under the credit facility provided for herein to be increased (provided, that, the
foregoing shall not limit the discretion of the Administrative Agent to add assets acquired in a
Permitted Acquisition to the Borrowing Base) without the written consent of the Supermajority
Lenders;
and provided further that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Lender or the Issuing Banks, as the case may be, in addition
to the Lenders required above, affect the rights or duties of the Swing Line Lender or of the
Issuing Banks, as the case may be, under this Agreement or any Letter of Credit Application
relating to any Letter of Credit issued or to be issued by it; and (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document. Notwithstanding anything to the contrary herein, no Defaulting Lender shall
have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent of such Lender. In
the event that the Borrower requests that this Agreement or any other Loan Document be amended in a
manner which would require the consent of each Lender and such modification or amendment is agreed
to by the Required Lenders, then the Borrower and the
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Administrative Agent shall be permitted to amend this Agreement or such other Loan Document without
the consent of the Lender or Lenders which did not agree to the modification or amendment requested
by the Borrower (such Lender or Lenders, collectively, the βNon-Consenting Lendersβ) to
provide for (i) the termination of the Commitment of each of the Non Consenting Lenders, (ii) the
addition to this Agreement of one or more other financial institutions (each of which shall meet
the requirements of Section 10.07), or an increase in the Commitment of one or more of the Required
Lenders approving such modification or amendment, so that the aggregate value of the sum of each of
the Lendersβ Commitments after giving effect to such amendment shall be in the same amount as the
aggregate value of the sum of each of the Lendersβ Commitments immediately before giving effect to
such amendment, (iii) if any Advances are outstanding at the time of such amendment, the making of
such additional Advances by such new financial institutions or Required Lenders, as the case may
be, as may be necessary to repay in full the outstanding Advances (including principal, interest,
fees and other amounts due and owing under the Loan Documents) of the Non-Consenting Lenders
immediately before giving effect to such amendment and (iv) such other modifications to this
Agreement as may be appropriate.
Notwithstanding anything to the contrary in this Section 10.01, if at any time on or before
the date that is sixty (60) days following the Closing Date, the Administrative Agent and the
Borrowers shall have jointly identified an obvious error or any error or omission of a technical or
immaterial nature, in each case, in any provision of the Loan Documents, then the Administrative
Agent and the Loan Parties shall be permitted to amend such provision and such amendment shall
become effective without any further action or consent of any other party to any Loan Document if
the same is not objected to in writing by the Required Lenders within five (5) Business Days
following receipt of notice thereof.
Each Loan Party acknowledges the agreements set forth in the Fee Letter and agrees that it
will execute and deliver such amendments to the Loan Documents as shall be deemed advisable by the
Lead Arrangers to give effect to the provisions of the Fee Letter. Notwithstanding anything to the
contrary in this Section 10.01, the Administrative Agent and the Loan Parties shall be permitted to
execute and deliver such amendments and such amendments shall become effective without any further
action or consent of any other party to any Loan Document if the same is not objected to in writing
by the Required Lenders within five (5) Business Days following receipt of notice thereof.
Section 10.02
Notices, Etc. (a) All notices and other communications provided for
hereunder shall be in writing (including telegraphic or telecopy communication) and mailed,
telegraphed, telecopied or delivered, if to the Borrower or any Guarantor, at the Borrowerβs
address at 0000 Xxxx Xxxxxx, Xxxxxx, Xxxx 00000, Attention: Treasurer, as well as to the attention
of the general counsel of the Borrower at the Borrowerβs address, fax number (000) 000-0000; if to
any Initial Lender or the Initial Issuing Banks, at its Applicable Lending Office, respectively,
specified opposite its name on Schedule I hereto; if to any other Lender Party, at its Applicable
Lending Office specified in the Assignment and Acceptance pursuant to which it became a Lender
Party; if to the Administrative Agent, at its address at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, fax number (000) 000-0000, Attention: Xxxxxxxxx Xxxxx, as well as to Shearman & Sterling,
counsel to the Administrative Agent, at its address at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, fax number (000) 000-0000, Attention: Xxxxx
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XβXxxxxxxx, Esq.; or, as to the Borrower, any Guarantor or the Administrative Agent, at such
other address as shall be designated by such party in a written notice to the other parties. All
such notices and communications shall, when mailed, telegraphed or telecopied, be effective three
Business Days after being deposited in the U.S. mails, first class postage prepaid, delivered to
the telegraph company or confirmed as received when sent by telecopier, respectively, except that
notices and communications to the Administrative Agent pursuant to Article II, III or VII shall not
be effective until received by the Administrative Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the Notes or of any
Exhibit hereto to be executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
(b) The Borrower hereby agrees that it will provide to the Administrative Agent all
information, documents and other materials that it is obligated to furnish to the Administrative
Agent pursuant to the Loan Documents, including, without limitation, all notices, requests,
financial statements, financial and other reports, certificates and other information materials,
but excluding any such communication that (i) relates to a request for a new, or a Conversion of an
existing, Borrowing or other Extension of Credit (including any election of an interest rate or
interest period relating thereto), (ii) relates to the payment of any principal or other amount due
under this Agreement prior to the scheduled date therefor, (iii) provides notice of any Default or
Event of Default under this Agreement or (iv) is required to be delivered to satisfy any condition
precedent to the effectiveness of this Agreement and/or any Borrowing or other Extension of Credit
thereunder (all such non-excluded communications being referred to herein collectively as
βCommunicationsβ), by transmitting the Communications in an electronic/soft medium in a
format acceptable to the Administrative Agent to xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. In addition, the
Borrower agrees to continue to provide the Communications to the Administrative Agent in the manner
specified in the Loan Documents but only to the extent requested by the Administrative Agent. The
Borrower further agrees that the Administrative Agent may make the Communications available to the
Lenders by posting the Communications on an Informational Website or a substantially similar
electronic transmission system (the βPlatformβ).
(c) THE PLATFORM IS PROVIDED βAS ISβ AND βAS AVAILABLEβ. THE AGENT PARTIES (AS DEFINED BELOW)
DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM
AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE
COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS
AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR
REPRESENTATIVES (COLLECTIVELY, βAGENT PARTIESβ) HAVE ANY LIABILITY TO THE BORROWER, ANY
LENDER PARTY OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION,
DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR
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EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERβS OR THE
ADMINISTRATIVE AGENTβS TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT
THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF
COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTYβS GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
(d) The Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute effective delivery of
the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender
Party agrees that notice to it (as provided in the next sentence) specifying that the
Communications have been posted to the Platform shall constitute effective delivery of the
Communications to such Lender Party for purposes of the Loan Documents. Each Lender Party agrees
to notify the Administrative Agent in writing (including by electronic communication) from time to
time of such Lender Partyβs e-mail address to which the foregoing notice may be sent by electronic
transmission and (ii) that the foregoing notice may be sent to such e-mail address. Nothing herein
shall prejudice the right of the Administrative Agent or any Lender Party to give any notice or
other communication pursuant to any Loan Document in any other manner specified in such Loan
Document.
Section 10.03
No Waiver; Remedies. No failure on the part of any Lender Party or the
Administrative Agent to exercise, and no delay in exercising, any right hereunder or under any Note
shall operate as a waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by law.
Section 10.04
Costs, Fees and Expenses. (a) Each Loan Party agrees (i) to pay or
reimburse the Administrative Agent, the Syndication Agent, the Collateral Agent, the Documentation
Agent and each Lead Arranger for all reasonable costs and expenses incurred by each such Agent in
connection with (a) the development, preparation, negotiation and execution of this Agreement and
the other Loan Documents and any amendment, waiver, consent or other modification of the provisions
hereof and thereof (whether or not the transactions contemplated hereby or thereby are
consummated), (b) the syndication and funding of the Revolving Credit Facility, (c) the creation,
perfection or protection of the liens under the Loan Documents (including all reasonable search,
filing and recording fees) and (d) the ongoing administration of the Loan Documents (including the
preparation, negotiation and execution of any amendments, consents, waivers, assignments,
restatements or supplements thereto and costs associated with insurance reviews, collateral audits,
field exams, collateral valuations and collateral reviews);
provided, that, prior to the
occurrence, and during the continuance, of a Default or Event of Default, reasonable attorneyβs
fees shall be limited to one primary counsel and, if reasonably required by any Agent, local or
specialist counsel,
provided further that no such limitation shall apply if counsel
determines in good faith that there is a conflict of interest that requires separate representation
for any party, and (ii) to pay or reimburse each Agent and each of the Lenders for all reasonable
documented costs and expenses, incurred by such Agent or such Lenders and in connection with (a)
the enforcement of the Loan Documents or collection of payments due from any Loan Party and (b) any
legal proceeding relating to or arising out of the Revolving Credit
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Facility or the other transactions contemplated by the Loan Documents. The foregoing fees,
costs and expenses shall include all search, filing, recording, title insurance, collateral review,
monitoring, and appraisal charges and fees and taxes related thereto, and other reasonable
out-of-pocket expenses incurred by the Agents and the cost of independent public accountants and
other outside experts retained jointly by the Agents. All amounts due under this Section 10.04(a)
shall be payable within ten Business Days after demand therefor accompanied by an appropriate
invoice. The agreements in this Section shall survive the termination of the Commitments and
repayment of all other Obligations.
(b) Whether or not the transactions contemplated hereby are consummated, each Loan Party shall
indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates,
directors, officers, employees, counsel, agents, advisors, attorneys-in-fact and representatives
(collectively the βIndemniteesβ) from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, fees and disbursements of counsel), joint
or several that may be incurred by, or asserted or awarded against any Indemnitee, in each case
arising out of or in connection with or relating to any investigation, litigation or proceeding or
the preparation of any defense with respect thereto arising out of or in connection with (i) the
execution, delivery, enforcement, performance or administration of any Loan Document or any other
agreement, letter or instrument delivered in connection with the transactions contemplated thereby
or the consummation of the transactions contemplated thereby, (ii) any Commitment, Advance or
Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an
Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii)
any actual or alleged presence or release of Hazardous Materials on or from any property currently
or formerly owned or operated by the Borrower or any other Loan Party, or any Liability related in
any way to the Borrower or any other Loan Party in respect of Environmental Laws, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory (including any investigation of,
preparation for, or defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing,
collectively, the βIndemnified Liabilitiesβ), in all cases, whether or not caused by or
arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such claim, damage, loss,
liability or expense is determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted primarily from the gross negligence or willful misconduct of such
Indemnitee. In the case of an investigation, litigation or other proceeding to which the indemnity
in this Section 10.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower or any of its Subsidiaries, any
security holders or creditors of the foregoing an Indemnitee or any other Person, or an Indemnitee
is otherwise a party thereto and whether or not the transactions contemplated hereby are
consummated. No Indemnitee shall have any liability (whether direct or indirect, in contract, tort
or otherwise) to the Borrower or any of its Subsidiaries for or in connection with the transactions
contemplated hereby, except to the extent such liability is determined in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from such Indemniteeβs gross
negligence or willful misconduct. In no event, however, shall any Indemnitee be liable to the
Borrower or any of its Subsidiaries on any theory of liability for any special, indirect,
consequential or punitive damages (including,
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without limitation, any loss of profits, business or anticipated savings). No Indemnitee
shall be liable to the Borrower or any of its Subsidiaries for any damages arising from the use by
others of any information or other materials obtained through an Informational Website or other
similar information transmission systems in connection with this Agreement. All amounts due under
this Section 10.04(b) shall be payable within ten Business Days after demand therefor. The
agreements in this Section shall survive the resignation of the Administrative Agent, the
replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made by
the Borrower to or for the account of a Lender Party other than on the last day of the Interest
Period for such Advance, as a result of a payment or Conversion pursuant to Section 2.06,
2.09(b)(i) or 2.10(d), acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any other reason, or if the Borrower fails to make any payment or prepayment of an Advance for
which a notice of prepayment has been given or that is otherwise required to be made, whether
pursuant to Section 2.04, 2.06 or 6.01 or otherwise, the Borrower shall, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party any amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur as a result of such payment or
Conversion or such failure to pay or prepay, as the case may be, including, without limitation, any
actual loss (excluding loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender Party to fund or
maintain such Advance.
Section 10.05
Right of Set-off. Upon (a) the occurrence and during the continuance of
any Event of Default and (b) the making of the request or the granting of the consent specified by
Section 6.01 to authorize the Administrative Agent to declare the Notes due and payable pursuant to
the provisions of Section 6.01, each Lender Party and each of its respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by law, to set off
and otherwise apply any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender Party or such Affiliate to
or for the credit or the account of the Borrower against any and all of the Obligations of the
Borrower now or hereafter existing under this Agreement and the Note or Notes (if any) held by such
Lender Party, irrespective of whether such Lender Party shall have made any demand under this
Agreement or such Note or Notes and although such obligations may be unmatured. Each Lender Party
agrees promptly to notify the Borrower after any such set off and application;
provided,
however, that the failure to give such notice shall not affect the validity of such set off
and application. The rights of each Lender Party and its respective Affiliates under this Section
are in addition to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender Party and its respective Affiliates may have.
Section 10.06
Binding Effect. This Agreement shall become effective when it shall
have been executed by the Borrower, the Guarantors, each Agent, the Initial Issuing Banks and the
Initial Swing Line Lender and the Administrative Agent shall have been notified by each Initial
Lender that such Initial Lender has executed it and thereafter shall be binding upon and inure to
the benefit of the Borrower, each Agent and each Lender Party and their respective
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successors and assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of each Lender Party.
Section 10.07
Successors and Assigns. (a) Each Lender may assign all or a portion of
its rights and obligations under this Agreement (including, without limitation, all or a portion of
its Commitment or Commitments, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a uniform, and not a varying,
percentage of all rights and obligations under and in respect of any or all Facilities, (ii) except
in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender,
an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lenderβs
rights and obligations under this Agreement, the aggregate amount of the Commitments being assigned
to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 under
each Facility for which a Commitment is being assigned, (iii) each such assignment shall be to an
Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note or Notes (if any) subject to such assignment and a processing
and recordation fee of $3,500 (which shall not be payable by the Borrower). The parties hereto
acknowledge and agree that, at the election of the Administrative Agent, any such Assignment and
Acceptance may be electronically executed and delivered to the Administrative Agent via an
electronic loan assignment confirmation system acceptable to the Administrative Agent (which shall
include ClearPar, LLC).
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date
specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case
may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 10.04 to the
extent any claim thereunder relates to an event arising prior to such assignment) and be released
from its obligations under this Agreement (and, in the case of an Assignment and Acceptance
covering all of the remaining portion of an assigning Lenderβs or Issuing Bankβs rights and
obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor
thereunder and each assignee thereunder confirm to and agree with each other and the other parties
thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such
assigning Lender Party makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or purported to be
created under or in connection with, any Loan Document or any other instrument or document
furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations
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under any Loan Document or any other instrument or document furnished pursuant thereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such
assigning Lender Party or any other Lender Party and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent
by the terms hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required to be performed by it
as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent, acting for this purpose (but only for this purpose) as the agent
of the Borrower, shall maintain at its address referred to in Section 10.02 a copy of each
Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the
names and addresses of the Lender Parties and the Commitment under each Facility of, and principal
amount of the Advances owing under each Facility to, each Lender Party from time to time (the
βRegisterβ). The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agents and the Lender Parties may treat each Person
whose name is recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any Agent or any
Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and
an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in substantially the form of
Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof and a copy of such Assignment and
Acceptance to the Borrower and each other Agent. In the case of any assignment by a Lender, within
five Business Days after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes (if
any) a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed
by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender
that had a Note or Notes prior to such assignment has retained a Commitment hereunder under such
Facility, a new Note to the order of such assigning Lender in an amount equal to the Commitment
retained by it hereunder. Such new Note or Notes shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto, as
the case may be.
(f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its
rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time;
provided, however, that (i) each such assignment shall be to an
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Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to
the Administrative Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with a processing and recordation fee of $3,500 (which shall not be payable by
the Borrower).
(g) Each Lender Party may sell participations to one or more Persons (other than any Loan
Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitments, the Advances owing
to it and any Note or Notes held by it); provided, however, that (i) such Lender
Partyβs obligations under this Agreement (including, without limitation, its Commitments) shall
remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of
any such Note for all purposes of this Agreement, (iv) the Borrower, the Agents and the other
Lender Parties shall continue to deal solely and directly with such Lender Party in connection with
such Lender Partyβs rights and obligations under this Agreement, (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest (other than default
interest) on, the Advances or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or release a substantial portion of the value of the
Collateral or the value of the Guaranties and (vi) the participating banks or other entities shall
be entitled to the benefit of Section 2.12 to the same extent as if they were a Lender Party but,
with respect to any particular participant, to no greater extent than the Lender Party that sold
the participation to such participant and only if such participant agrees to comply with Section
2.12(e) as though it were a Lender Party.
(h) Any Lender Party may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 10.07, disclose to the assignee or participant
or proposed assignee or participant any information relating to the Borrower furnished to such
Lender Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information received by it from such Lender Party
in accordance with Section 10.09 hereof.
(i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at
any time (and without the consent of the Administrative Agent or the Borrower) create a security
interest in all or any portion of its rights under this Agreement (including, without limitation,
the Advances owing to it and any Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve System
(j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that
invests in bank loans may create a security interest in all or any portion of the Advances owing to
it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities
issued, by such fund as security for such obligations or securities, provided,
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however, that unless and until such trustee actually becomes a Lender in compliance
with the other provisions of this Section 10.07, (i) no such pledge shall release the pledging
Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender under the Loan Documents even though such
trustee may have acquired ownership rights with respect to the pledged interest through foreclosure
or otherwise.
(k) Notwithstanding anything to the contrary contained herein, any Lender Party (a
βGranting Lenderβ) may grant to a special purpose funding vehicle identified as such in
writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an
βSPCβ) the option to provide all or any part of any Advance that such Granting Lender would
otherwise be obligated to make pursuant to this Agreement; provided, however, that (i) nothing
herein shall constitute a commitment by any SPC to fund any Advance, and (ii) if an SPC elects not
to exercise such option or otherwise fails to make all or any part of such Advance, the Granting
Lender shall be obligated to make such Advance pursuant to the terms hereof. The making of an
Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent,
and as if, such Advance were made by such Granting Lender. Each party hereto hereby agrees that
(i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for
which a Lender Party would be liable, (ii) no SPC shall be entitled to the benefits of Sections
2.10 and 2.12 (or any other increased costs protection provision) and (iii) the Granting Lender
shall for all purposes, including, without limitation, the approval of any amendment or waiver of
any provision of any Loan Document, remain the Lender Party of record hereunder. In furtherance of
the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day after the payment in full of
all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or
join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding under the laws of the United States or any State thereof.
Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice
to, but without prior consent of, the Borrower and the Administrative Agent, assign all or any
portion of its interest in any Advance to the Granting Lender and (ii) disclose on a confidential
basis any non-public information relating to its funding of Advances to any rating agency,
commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement
to such SPC. This subSection (k) may not be amended without the prior written consent of each
Granting Lender, all or any part of whose Advances are being funded by the SPC at the time of such
amendment.
Section 10.08
Execution in Counterparts; Integration. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which when taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a signature page to
this Agreement by telecopier or other electronic communication shall be effective as delivery of a
manually executed counterpart of this Agreement. This Agreement and the other Loan Documents,
together with the provisions of the Commitment Letter that are stated to survive the execution
hereof and the Fee Letter, constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof.
XxxxβRevolving Credit and Guaranty Agreement
121
Section 10.09
Confidentiality; Press Releases, Related Matters and Treatment of
Information. (a) No Agent or Lender Party shall disclose any Confidential Information to any
Person without the consent of the Borrower, other than (i) to such Agentβs or such Lender Partyβs
Affiliates and their officers, directors, employees, agents and advisors and to actual or
prospective Eligible Assignees and participants, and then only on a confidential, need to know
basis, (ii) as requested or required by any law, rule or regulation or judicial process or (iii) as
requested or required by any state, federal or foreign authority or examiner regulating banks or
banking.
(b) Each of the parties hereto and each party joining hereafter agrees that neither it nor its
Affiliates will in the future issue any press releases or other public disclosure using the name of
any Lender or its Affiliates or referring to this Agreement or any of the other Loan Documents
without at least 2 Business Daysβ prior notice to such Lender and without the prior written consent
of such Lender or unless (and only to the extent that) such party or Affiliate is required to do so
under law and then, in any event, such party or Affiliate will consult with the Borrower, the
Administrative Agent and such Lender before issuing such press release or other public disclosure.
Each party consents to the publication by the Agents or any Lender Party of a tombstone or similar
advertising material relating to the financing transactions contemplated by this Agreement. The
Agents reserve the right to provide to industry trade organizations such necessary and customary
information needed for inclusion in league table measurements.
(c) Certain of the Lenders may enter into this Agreement and take or not take action hereunder
or under the other Loan Documents on the basis of information that does not contain material
non-public information with respect to any of the Loan Parties or their securities
(βRestricting Informationβ). Other Lenders may enter into this Agreement and take or not
take action hereunder or under the other Loan Documents on the basis of information that may
contain Restricting Information. Each Lender Party acknowledges that United States federal and
state securities laws prohibit any person from purchasing or selling securities on the basis of
material, non-public information concerning the such issuer of such securities or, subject to
certain limited exceptions, from communicating such information to any other Person. Neither the
Administrative Agent nor any of its Agent-Related Persons shall, by making any Communications
(including Restricting Information) available to a Lender Party, by participating in any
conversations or other interactions with a Lender Party or otherwise, make or be deemed to make any
statement with regard to or otherwise warrant that any such information or Communication does or
does not contain Restricting Information nor shall the Administrative Agent or any of its
Agent-Related Persons be responsible or liable in any way for any decision a Lender Party may make
to limit or to not limit its access to Restricting Information. In particular, none of the
Administrative Agent nor any of its Agent-Related Persons (i) shall have, and the Administrative
Agent, on behalf of itself and each of its Agent-Related Persons, hereby disclaims, any duty to
ascertain or inquire as to whether or not a Lender Party has or has not limited its access to
Restricting Information, such Lender Partyβs policies or procedures regarding the safeguarding of
material, nonpublic information or such Lender Partyβs compliance with applicable laws related
thereto or (ii) shall have, or incur, any liability to any Loan Party or Lender Party or any of
their respective Agent-Related Persons arising out of or relating to the Administrative Agent or
any of its Agent-Related Persons providing or not providing Restricting Information to any Lender
Party.
DanaβRevolving Credit and Guaranty Agreement
122
(d) Each Loan Party agrees that (i) all Communications it provides to the Administrative Agent
intended for delivery to the Lender Parties whether by posting to the Platform or otherwise shall
be clearly and conspicuously marked βPUBLICβ if such Communications do not contain Restricting
Information which, at a minimum, shall mean that the word βPUBLICβ shall appear prominently on the
first page thereof, (ii) by marking Communications βPUBLIC,β each Loan Party shall be deemed to
have authorized the Administrative Agent and the Lender Parties to treat such Communications as
either publicly available information or not material information (although, in this latter case,
such Communications may contain sensitive business information and, therefore, remain subject to
the confidentiality undertakings of this Agreement) with respect to such Loan Party or its
securities for purposes of United States Federal and state securities laws, (iii) all
Communications marked βPUBLICβ may be delivered to all Lender Parties and may be made available
through a portion of the Platform designated βPublic Side Information,β and (iv) the Administrative
Agent shall be entitled to treat any Communications that are not marked βPUBLICβ as Restricting
Information and may post such Communications to a portion of the Platform not designated βPublic
Side Information.β Neither the Administrative Agent nor any of its Affiliates shall be responsible
for any statement or other designation by a Loan Party regarding whether a Communication contains
or does not contain material non-public information with respect to any of the Loan Parties or
their securities nor shall the Administrative Agent or any of its Affiliates incur any liability to
any Loan Party, any Lender Party or any other Person for any action taken by the Administrative
Agent or any of its Affiliates based upon such statement or designation, including any action as a
result of which Restricting Information is provided to a Lender Party that may decide not to take
access to Restricting Information.
(e) Each Lender Party acknowledges that circumstances may arise that require it to refer to
Communications that might contain Restricting Information. Accordingly, each Lender Party agrees
that it will nominate at least one designee to receive Communications (including Restricting
Information) on its behalf. Each Lender Party agrees to notify the Administrative Agent from time
to time of such Lender Partyβs designeeβs e-mail address to which notice of the availability of
Restricting Information may be sent by electronic transmission.
(f) Each Lender Party acknowledges that Communications delivered hereunder and under the other
Loan Documents may contain Restricting Information and that such Communications are available to
all Lender Parties generally. Each Lender Party that elects not to take access to Restricting
Information does so voluntarily and, by such election, acknowledges and agrees that the
Administrative Agent and other Lender Parties may have access to Restricting Information that is
not available to such electing Lender Party. None of the Administrative Agent nor any Lender Party
with access to Restricting Information shall have any duty to disclose such Restricting Information
to such electing Lender Party or to use such Restricting Information on behalf of such electing
Lender Party, and shall not be liable for the failure to so disclose or use, such Restricting
Information.
(g) Clauses (c), (d), (e) and (f) of this Section 10.09 are designed to assist the
Administrative Agent, the Lender Parties and the Loan Parties, in complying with their respective
contractual obligations and applicable law in circumstances where certain Lender
DanaβRevolving Credit and Guaranty Agreement
123
Parties express a desire not to receive Restricting Information notwithstanding that certain
Communications hereunder or under the other Loan Documents or other information provided to the
Lender Parties hereunder or thereunder may contain Restricting Information. Neither the
Administrative Agent nor any of its Agent-Related Persons warrants or makes any other statement
with respect to the adequacy of such provisions to achieve such purpose nor does the Administrative
Agent or any of its Agent-Related Persons warrant or make any other statement to the effect that a
Loan Party or Lender Partyβs adherence to such provisions will be sufficient to ensure compliance
by such Loan Party or Lender Party with its contractual obligations or its duties under applicable
law in respect of Restricting Information and each of the Lender Parties and each Loan Party
assumes the risks associated therewith.
Section 10.10
Patriot Act Notice. Each Lender Party and each Agent (for itself and
not on behalf of any Lender Party) hereby notifies the Loan Parties that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record information that
identifies each Loan Party, which information includes the name and address of such Loan Party and
other information that will allow such Lender Party or such Agent, as applicable, to identify such
Loan Party in accordance with the Patriot Act. The Borrower shall, and shall cause each of its
Subsidiaries to, provide the extent commercially reasonable, such information and take such actions
as are reasonably requested by any Agents or any Lender Party in order to assist the Agents and the
Lender Parties in maintaining compliance with the Patriot Act.
Section 10.11
Jurisdiction, Etc. (a) Each of the parties hereto hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Agreement or any of the other Loan Documents to which it is a party, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard and determined in
any such New York State court or, to the extent permitted by law, in such federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement or any of the other
Loan Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this Agreement or any of
the other Loan Documents to which it is a party in any New York State or federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any such court.
This Agreement and the Notes shall be governed by, and construed in accordance with, the laws
of the State of New York.
DanaβRevolving Credit and Guaranty Agreement
124
Each of the Guarantors, the Borrower, the Agents and the Lender Parties irrevocably waives all
right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort
or otherwise) arising out of or relating to any of the Loan Documents, the Advances or the actions
of the Administrative Agent or any Lender Party in the negotiation, administration, performance or
enforcement thereof.
[The remainder of this page intentionally left blank]
DanaβRevolving Credit and Guaranty Agreement
125
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XXXX HOLDING CORPORATION, as Borrower
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By: |
/s/
Xxxxxxx X. Xxxxx |
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
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By: |
/s/
Xxxxxx X. Xxxxxx |
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Name: |
Xxxxxx X. Xxxxxx |
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Title: |
Treasurer |
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[Signature Page to Revolving Credit and Guaranty Agreement]
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XXXX LIMITED,
as a Guarantor
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By: |
/s/
Xxxx X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Secretary |
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XXXX AUTOMOTIVE SYSTEMS GROUP, LLC,
as a Guarantor
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By: |
/s/
Xxxx X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Secretary |
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DANA DRIVESHAFT PRODUCTS, LLC,
as a Guarantor
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By: |
/s/
Xxxx X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Secretary |
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DANA DRIVESHAFT MANUFACTURING, LLC,
as a Guarantor
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By: |
/s/
Xxxx X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Secretary |
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DANA LIGHT AXLE PRODUCTS, LLC,
as a Guarantor
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By: |
/s/
Xxxx X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Secretary |
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DANA LIGHT AXLE MANUFACTURING, LLC,
as a Guarantor
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By: |
/s/
Xxxx X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Secretary |
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[Signature Page to Revolving Credit and Guaranty Agreement]
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DANA SEALING PRODUCTS, LLC,
as a Guarantor
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By: |
/s/ Xxxx
X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Secretary |
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DANA SEALING MANUFACTURING, LLC,
as a Guarantor
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By: |
/s/ Xxxx
X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Secretary |
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DANA STRUCTURAL PRODUCTS, LLC,
as a Guarantor
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By: |
/s/ Xxxx
X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Secretary |
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DANA STRUCTURAL MANUFACTURING, LLC,
as a Guarantor
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By: |
/s/ Xxxx
X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Secretary |
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DANA THERMAL PRODUCTS, LLC,
as a Guarantor
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By: |
/s/ Xxxx
X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Secretary |
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DANA HEAVY VEHICLE SYSTEMS GROUP,
LLC,
as a Guarantor
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By: |
/s/ Xxxx
X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Secretary |
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[Signature Page to Revolving Credit and Guaranty Agreement]
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DANA COMMERCIAL VEHICLE PRODUCTS,
LLC,
as a Guarantor
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By: |
/s/ Xxxx
X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Secretary |
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DANA COMMERCIAL VEHICLE
MANUFACTURING, LLC,
as a Guarantor
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By: |
/s/ Xxxx
X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Secretary |
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XXXXXX HEAVY AXLE & BRAKE, INC.,
as a Guarantor
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By: |
/s/ Xxxx
X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Vice President and Secretary |
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DANA OFF HIGHWAY PRODUCTS, LLC,
as a Guarantor
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By: |
/s/ Xxxx
X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Secretary |
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DTF TRUCKING INC.,
as a Guarantor
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By: |
/s/ Xxxx
X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Vice President and Secretary |
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DANA WORLD TRADE CORPORATION,
as a Guarantor
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By: |
/s/ Xxxx
X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Secretary |
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[Signature Page to Revolving Credit and Guaranty Agreement]
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XXXX AUTOMOTIVE AFTERMARKET, INC.,
as a Guarantor
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By: |
/s/ Xxxx
X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Vice President and Secretary |
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[Signature Page to Revolving Credit and Guaranty Agreement]
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DANA GLOBAL PRODUCTS, INC.,
as a Guarantor
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By: |
/s/ Xxxxxx
X. Xxxxxx |
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Name: |
Xxxxxx X. Xxxxxx |
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Title: |
President |
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[Signature Page to Revolving Credit and Guaranty Agreement]
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CITICORP USA, INC., as Administrative Agent,
Collateral Agent, and an Initial Lender
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By: |
/s/ Xxxxx
X. Xxxxxx |
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Name: |
Xxxxx X. Xxxxxx |
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Title: |
Vice President |
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CITIGROUP GLOBAL MARKETS INC., as Joint Lead Arranger and Joint Bookrunner
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By: |
/s/ Xxxxx
X. Xxxxxx |
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Name: |
Xxxxx X. Xxxxxx |
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Title: |
Vice President |
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CITICORP USA, INC., as Swing Line Lender
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By: |
/s/ Xxxxx
X. Xxxxxx |
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Name: |
Xxxxx X. Xxxxxx |
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Title: |
Vice President |
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[Signature Page to Revolving Credit and Guaranty Agreement]
[Signature Page to Revolving Credit and Guaranty Agreement]
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BARCLAYS BANK PLC, as Documentation Agent and an Initial Lender
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By: |
/s/
Xxxxx Xxxxx |
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Name: |
Xxxxx Xxxxx |
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Title: |
Director |
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[Signature Page to Revolving Credit and Guaranty Agreement]
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JPMORGAN CHASE BANK, N.A.,
as Initial Issuing Bank
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By: |
/s/
Xxxxxxx X. Xxxxx |
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
Managing Director |
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[Signature Page to Revolving Credit and Guaranty Agreement]
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WACHOVIA BANK, NATIONAL ASSOCIATION,
as Initial Issuing Bank
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By: |
/s/
Xxxxxx X. Milherat
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Name: |
Xxxxxx X. Milherat |
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Title: |
Director |
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[Signature Page to Revolving Credit and Guaranty Agreement]