<PAGE>
Exhibit 99(a)
AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND GUARANTY AGREEMENT
AMONG
DELPHI CORPORATION
A DEBTOR AND A
DEBTOR-IN-POSSESSION UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
AS BORROWER,
AND
THE SUBSIDIARIES OF THE BORROWER NAMED HEREIN,
EACH A DEBTOR AND A DEBTOR-IN-POSSESSION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
AS GUARANTORS
AND
THE LENDERS PARTY HERETO,
AND
JPMORGAN CHASE BANK, N.A.
AS ADMINISTRATIVE AGENT
AND
CITICORP USA, INC.
AS SYNDICATION AGENT
AND
ABLECO FINANCE LLC,
DEUTSCHE BANK TRUST COMPANY AMERICAS
AND
GENERAL ELECTRIC CAPITAL CORPORATION
AS CO-DOCUMENTATION AGENTS
J.P. MORGAN SECURITIES INC., CITIGROUP GLOBAL MARKETS, INC.
AND DEUTSCHE BANK SECURITIES INC.
AS JOINT
BOOKRUNNERS
AND
JOINT LEAD ARRANGERS
DATED AS OF NOVEMBER 21, 2005
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<C>
SECTION 1.
DEFINITIONS...................................................
2
SECTION 1.01 Defined
Terms......................................... 2
SECTION 1.02 Terms
Generally....................................... 29
SECTION 1.03 Accounting Terms;
GAAP................................ 30
SECTION 2. AMOUNT AND TERMS OF
CREDIT.................................... 30
SECTION 2.01 Commitments of the
Lenders............................ 30
SECTION 2.02
Reserved.............................................. 31
SECTION 2.03 Letters of
Credit..................................... 31
SECTION 2.04 Requests for
Borrowings............................... 36
SECTION 2.05 Funding of
Borrowings................................. 37
SECTION 2.06 Interest
Elections.................................... 38
SECTION 2.07
[Reserved]............................................ 39
SECTION 2.08 Interest on
Loans..................................... 39
SECTION 2.09 Default
Interest...................................... 39
SECTION 2.10 Alternate Rate of
Interest............................ 39
SECTION 2.11 Repayment of Loans;
Evidence of Debt.................. 40
SECTION 2.12 Optional Termination
or Reduction of Commitment....... 40
SECTION 2.13 Mandatory Prepayment;
Commitment Termination.......... 41
SECTION 2.14 Optional Prepayment of
Loans.......................... 42
SECTION 2.15
Reserved.............................................. 42
SECTION 2.16 Increased
Costs....................................... 42
SECTION 2.17 Break Funding
Payments................................ 44
SECTION 2.18
Taxes................................................. 44
SECTION 2.19 Payments Generally;
Pro Rata Treatment................ 47
SECTION 2.20 Mitigation
Obligations; Replacement of Lenders........ 48
SECTION 2.21 Certain
Fees.......................................... 49
SECTION 2.22 Commitment
Fees....................................... 49
SECTION 2.23 Letter of Credit
Fees................................. 49
SECTION 2.24 Nature of
Fees........................................ 49
SECTION 2.25 Priority and
Liens.................................... 49
</TABLE>
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
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<C>
SECTION 2.26 Right of
Set-Off...................................... 51
SECTION 2.27 Security Interest in
Letter of Credit Account......... 52
SECTION 2.28 Payment of
Obligations................................ 52
SECTION 2.29 No Discharge; Survival
of Claims...................... 52
SECTION 2.30 Use of Cash
Collateral................................ 52
SECTION 3. REPRESENTATIONS AND
WARRANTIES................................ 52
SECTION 3.01 Organization and
Authority............................ 53
SECTION 3.02 Due
Execution......................................... 53
SECTION 3.03 Statements
Made....................................... 53
SECTION 3.04 Financial
Statements.................................. 54
SECTION 3.05
Ownership............................................. 54
SECTION 3.06
Liens................................................. 54
SECTION 3.07 Compliance with
Law................................... 54
SECTION 3.08
Insurance............................................. 55
SECTION 3.09 Use of
Proceeds....................................... 55
SECTION 3.10
Litigation............................................ 55
SECTION 3.11
ERISA................................................. 55
SECTION 3.12 The
Orders............................................ 55
SECTION 3.13
Properties............................................ 56
SECTION 4. CONDITIONS OF
LENDING......................................... 56
SECTION 4.01 Conditions Precedent
to Initial Loans and Initial
Letters of Credit..................................... 56
SECTION 4.02 Conditions Precedent
to Each Loan and Each Letter of
Credit................................................ 59
SECTION 4.03 Conditions Precedent
to the Tranche B Loan............ 60
SECTION 4.04 Conditions Precedent
to the Amendment and Restatement
Effective Date; Effect of Amendment and Restatement... 60
SECTION 5. AFFIRMATIVE
COVENANTS......................................... 61
SECTION 5.01 Financial Statements,
Reports, etc.................... 61
SECTION 5.02
Existence............................................. 64
SECTION 5.03
Insurance............................................. 64
SECTION 5.04 Obligations and
Taxes................................. 64
SECTION 5.05 Notice of Event of
Default, etc....................... 65
SECTION 5.06 Access to Books and
Records........................... 65
SECTION 5.07 Maintenance of
Concentration Account.................. 65
</TABLE>
ii
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<S>
<C>
SECTION 5.08 Borrowing Base
Certificate............................ 65
SECTION 5.09 Collateral Monitoring
and Review...................... 66
SECTION 5.10 Public
Rating......................................... 66
SECTION 5.11 Subsequently Filed
Domestic Entities.................. 66
SECTION 5.12 Post-Closing
Deliveries............................... 67
SECTION 6. NEGATIVE
COVENANTS............................................ 67
SECTION 6.01
Liens................................................. 67
SECTION 6.02 Merger,
etc........................................... 69
SECTION 6.03
Indebtedness.......................................... 69
SECTION 6.04
EBITDAR............................................... 70
SECTION 6.05
[Reserved]............................................ 71
SECTION 6.06 Chapter 11
Claims..................................... 71
SECTION 6.07 Dividends; Capital
Stock.............................. 71
SECTION 6.08 Transactions with
Affiliates.......................... 72
SECTION 6.09 Investments, Loans and
Advances....................... 72
SECTION 6.10 Disposition of
Assets................................. 73
SECTION 6.11 Nature of
Business.................................... 73
SECTION 7. EVENTS OF
DEFAULT............................................. 74
SECTION 7.01 Events of
Default..................................... 74
SECTION 8. THE
AGENTS....................................................
77
SECTION 8.01 Appointments;
Administration by Administrative Agent;
No Duties for Syndication Agent....................... 77
SECTION 8.02 Rights of
Agents...................................... 77
SECTION 8.03 Liability of
Agents................................... 77
SECTION 8.04 Reimbursement and
Indemnification..................... 78
SECTION 8.05 Successor
Administrative Agent........................ 78
SECTION 8.06 Independent
Lenders................................... 79
SECTION 8.07 Advances and
Payments................................. 79
SECTION 8.08 Sharing of
Setoffs.................................... 80
SECTION 9.
GUARANTY......................................................
80
SECTION 9.01
Guaranty.............................................. 80
SECTION 9.02 No Impairment of
Guaranty............................. 81
SECTION 9.03
Subrogation........................................... 81
</TABLE>
iii
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TABLE OF CONTENTS
(CONTINUED)
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<C>
SECTION 10.
MISCELLANEOUS................................................
82
SECTION 10.01
Notices............................................... 82
SECTION 10.02 Survival of Agreement,
Representations and Warranties,
etc................................................... 83
SECTION 10.03 Successors and
Assigns................................ 83
SECTION 10.04
Confidentiality....................................... 87
SECTION 10.05 Expenses; Indemnity; Damage
Waiver.................... 87
SECTION 10.06 CHOICE OF
LAW......................................... 88
SECTION 10.07 No
Waiver............................................. 88
SECTION 10.08 Extension of
Maturity................................. 89
SECTION 10.09 Amendments,
etc....................................... 89
SECTION 10.10
Severability.......................................... 90
SECTION 10.11
Headings.............................................. 90
SECTION 10.12
Survival.............................................. 91
SECTION 10.13 Execution in Counterparts;
Integration;
Effectiveness......................................... 91
SECTION 10.14 Prior
Agreements...................................... 91
SECTION 10.15 Further
Assurances.................................... 91
SECTION 10.16 USA Patriot
Act....................................... 92
SECTION 10.17 WAIVER OF JURY
TRIAL.................................. 92
</TABLE>
ANNEX A
Commitment Amounts
EXHIBIT A-1 - Interim Order
EXHIBIT A-2 - Final Order
EXHIBIT B -
Form of Security
and Pledge Agreement
EXHIBIT C -
Form of
Assignment and Acceptance
EXHIBIT D -
Form of
Exemption Certificate
EXHIBIT E -
Form of
Borrowing Base Certificate
SCHEDULE 1.01 - Existing Agreement
SCHEDULE 3.05 - Subsidiaries
SCHEDULE 3.10 - Litigation
SCHEDULE 6.01 - Liens
SCHEDULE 6.08 - Transactions with
Affiliates
SCHEDULE 6.10 - Asset Sales
iv
<PAGE>
AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND GUARANTY AGREEMENT
DATED AS OF NOVEMBER 21, 2005
AMENDED AND RESTATED REVOLVING CREDIT, TERM LOAN AND GUARANTY
AGREEMENT, dated as of November 21, 2005,
among DELPHI CORPORATION, a Delaware
corporation (the "Borrower"), a debtor and
debtor-in-possession in a case
pending under Chapter 11 of the Bankruptcy
Code, and the subsidiaries of the
Borrower signatory hereto (each a
"Guarantor" and collectively the
"Guarantors"), each of which Guarantors is
a debtor and debtor-in-possession in
a case pending under Chapter 11 of the
Bankruptcy Code (the cases of the
Borrower and the Guarantors, each a "Case"
and collectively, the "Cases"),
JPMORGAN CHASE BANK, N.A., a national
banking association ("JPMCB"), CITICORP
USA, INC. ("CUSA"), each of the other
financial institutions from time to time
party hereto (together with JPMCB and CUSA,
the "Lenders"), JPMCB, as
administrative agent (in such capacity, the
"Administrative Agent") for the
Lenders, and CUSA, as syndication agent (in
such capacity, the "Syndication
Agent"; together, the Administrative Agent
and the Syndication Agent are the
"Agents") for the Lenders.
INTRODUCTORY STATEMENT
On October 8, 2005, the Borrower and the Guarantors filed
voluntary
petitions with the Bankruptcy Court
initiating the Cases and have continued in
the possession of their assets and in the
management of their businesses
pursuant to Sections 1107 and 1108 of the
Bankruptcy Code.
On October 14, 2005 the Borrower, the Guarantors, JPMCB and CUSA
as
Lenders, the Administrative Agent and the
Syndication Agent entered into the
Revolving Credit, Term Loan and Guaranty
Agreement dated as of October 14, 2005
(the "Original DIP Credit Agreement", and
the Original DIP Credit Agreement as
amended by the First Amendment (as defined
below), the "Existing DIP Credit
Agreement"), which provides for (i) loan
facilities of $2,000,000,000, comprised
of (1) a revolving credit and letter of
credit facility in an aggregate
principal amount of $1,750,000,000 as set
forth therein and (2) a term loan in
an aggregate principal amount of
$250,000,000 as set forth therein and (ii) all
of the Borrower's obligations thereunder to
be guaranteed by the Guarantors.
On October 27, 2005 the Borrower, the Guarantors, JPMCB and CUSA
as
Lenders, the Administrative Agent and the
Syndication Agent entered into the
First Amendment to Revolving Credit, Term
Loan and Guaranty Agreement dated as
of October 27, 2005 (the "First
Amendment").
There are no Loans outstanding under the Existing DIP Credit
Agreement. There are letters of credit
outstanding under the Existing DIP Credit
Agreement, which will be deemed to be
Letters of Credit outstanding hereunder.
The Borrower, the Guarantors, the Lenders party hereto, the
Administrative Agent and the Syndication
Agent wish to amend and restate the
Existing DIP Credit Agreement in its
entirety in order to add additional Lenders
to the facility and re-allocate
Commitments
1
<PAGE>
accordingly and to effect certain other
amendments to the Existing DIP Credit
Agreement as set forth herein.
The Borrower, the Existing Lenders and the Existing Agent are
parties
to the Existing Agreement pursuant to which
the Borrower was (and the
Pre-Petition Guarantors were, pursuant to
the Guarantee and Collateral Agreement
(as defined in the Existing Credit
Agreement)) truly and justly indebted to the
Existing Lenders on the Filing Date in the
principal amount of $2,579,783,051.85
(including the aggregate outstanding face
amount of issued but undrawn letters
of credit outstanding thereunder) in
respect of the extensions of credit
provided for thereunder.
The proceeds of the loan facilities will be used in accordance
with
Section 3.09 hereof.
To provide guarantees and security for the repayment of the Loans,
the
reimbursement of any draft drawn under a
Letter of Credit and the payment of all
other Secured Obligations (including the
obligations of the Borrower and the
Guarantors in respect of any hedging
obligation permitted hereunder and
Indebtedness permitted by Section
6.03(viii), in each case owing to JPMCB, any
other Lender or any of their respective
banking Affiliates), the Borrower and
the Guarantors will provide to the
Administrative Agent and the Lenders the
claims and liens described in Section 2.25
of this Agreement.
Accordingly, the parties hereto hereby agree that, as of the
Amendment
and Restatement Effective Date, the
Existing DIP Credit Agreement is amended and
restated in its entirety as follows:
SECTION 1. DEFINITIONS
SECTION 1.01
DEFINED TERMS.
"ABR", when used in reference to any Loan or Borrowing, refers
to
whether such Loan, or the Loans comprising
such Borrowing, are bearing interest
at a rate determined by reference to the
Alternate Base Rate.
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"Account" shall mean any right to payment for goods sold or leased
or
for services rendered, whether or not
earned by performance, as set forth in the
UCC.
"Account Debtor" shall mean the Person obligated on an Account.
"Additional Credit" shall have the meaning given such term in
Section
4.02(d).
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an
interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal
to (a) the LIBO Rate for such
Interest Period multiplied by (b) the
Statutory Reserve Rate.
2
<PAGE>
"Adjusted Eligible Receivables" shall mean the Eligible
Receivables,
minus the Dilution Reserve.
"Administrative Agent" shall have the meaning given such term in
the
Introduction.
"Affiliate" shall mean, as to any Person, any other Person
which,
directly or indirectly, is in control of,
is controlled by, or is under common
control with, such Person. For purposes of
this definition, a Person (a
"Controlled Person") shall be deemed to be
"controlled by" another Person (a
"Controlling Person") if the Controlling
Person possesses, directly or
indirectly, power to direct or cause the
direction of the management and
policies of the Controlled Person whether
by contract or otherwise.
"Agents" shall have the meaning given such term in the
Introduction.
"Agreement" shall mean this Amended and Restated Revolving
Credit,
Term Loan and Guaranty Agreement, as the
same may from time to time be amended,
modified or supplemented.
"Alternate Base Rate" shall mean, for any day, a rate per annum
equal
to the greater of (a) the Prime Rate in
effect on such day and (b) the Federal
Funds Effective Rate in effect on such day
plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the
Prime Rate or the Federal Funds
Effective Rate shall be effective from and
including the effective date of such
change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"Amendment and Restatement Effective Date" shall have the
meaning
given such term in Section 4.04.
"Approved Fund" shall have the meaning given such term in
Section
10.03(b).
"Arrangers" shall have the meaning given such term in Section
10.05(a).
"Asset Sale" shall mean any Disposition of property or series
of
related Dispositions of property by the
Borrower or any Guarantor (excluding any
such Disposition permitted by Clauses (i),
(ii), (iii), (v), (vii) and (viii) of
Section 6.10).
"Assignment and Acceptance" shall mean an assignment and
acceptance
entered into by a Lender and an assignee
(with the consent of any party whose
consent is required by Section 10.03), and
accepted by the Administrative Agent.
substantially in the form of Exhibit C.
"Automotive Holdings Group" shall mean the division within
Delphi
Automotive Systems LLC comprised of select
product lines and plant sites that do
not meet the Borrower's targets for net
income or other financial metrics, with
such additions and deletions to product
lines and plant sites as the Borrower
may from time to time determine (in a
manner consistent with the criteria used
on the Closing Date to include product
lines and plant sites in such division)
and as such divisional name may be changed
from time to time.
3
<PAGE>
"Availability Period" shall mean the period from and including
the
Closing Date to but excluding the
Termination Date.
"Available Amount" shall have the meaning given such term in
Section
5.08.
"Available Inventory" shall mean, on any date, the lesser of (i)
an
amount equal to (x) the product of (1) 65%
multiplied by (2) the sum of Eligible
Inventory, less Inventory Reserves, less
(y) Rent Reserves and (ii) 85% of the
product of (x) the Net Recovery Rate in
effect for the Inventory (based on the
then most recent independent inventory
appraisal) on such date of determination,
multiplied by (y) the aggregate amount of
gross domestic Inventory and Mexican
Inventory (as reported in accordance with
the Borrower's general ledger and
inventory system at such date of
determination) as set forth in the most recent
Borrowing Base Certificate.
"Available Receivables" shall mean, at any date of determination,
an
amount equal to 85% of Adjusted Eligible
Receivables.
"Bankruptcy Code" shall mean The Bankruptcy Reform Act of 1978,
as
heretofore and hereafter amended, and
codified as 11 U.S.C. Section 101 et seq.
"Bankruptcy Court" shall mean the United States Bankruptcy Court
for
the Southern District of New York or any
other court having jurisdiction over
the Cases from time to time.
"Board" shall mean the Board of Governors of the Federal
Reserve
System of the United States.
"Borrower" shall have the meaning given such term in the
Introduction.
"Borrowing" shall mean (a) the incurrence, conversion or
continuation
of Tranche A Loans of a single Type made
from all the Tranche A Lenders on a
single date and having, in the case of
Eurodollar Loans, a single Interest
Period and (b) the incurrence of the
Tranche B Loan or the conversion or
continuation of a portion of the Tranche B
Loan having a specified Type and
having, in the case of a Eurodollar
Borrowing, a specified Interest Period.
"Borrowing Base" shall mean, on any date, an amount (calculated
based
on the most recent Borrowing Base
Certificate delivered to the Administrative
Agent in accordance with this Agreement)
that is equal to the sum of (i)
Available Receivables, plus (ii) Available
Inventory, plus (iii) the Fixed Asset
Component, minus the Carve-Out, minus an
amount equal to the excess (if any) of
the aggregate amount of Secured Domestic
Hedging Obligations (determined on a
marked-to-market basis) over $75,000,000;
provided that the aggregate amount of
the Fixed Asset Component shall at no time
account for more than thirty percent
(30%) of the aggregate amount of the
Borrowing Base (it being understood that,
solely for purposes of this proviso, the
aggregate amount of the Borrowing Base
shall be calculated without giving effect
to the deductions described in clauses
(iv) and (v) above). For the avoidance of
doubt, for purposes of this
definition, (A) the amount described in
clause (iii) of the definition of
"Carve-Out" shall be deemed at all times to
be equal to $35,000,000 and (B) the
amount described in clause (iv)(y) of the
definition of "Carve-Out" shall be
deemed at all times to be equal to
$5,000,000.
4
<PAGE>
Borrowing Base standards may be fixed and
revised from time to time by the
Administrative Agent in its reasonable
discretion.
"Borrowing Base Certificate" shall mean a certificate substantially
in
the form of an Exhibit E (with such changes
therein as may be reasonably
required from time to time (upon at least
10 days' notice by the Administrative
Agent, except during the continuance of an
Event of Default) to reflect the
components of and reserves against the
Borrowing Base as provided for hereunder
from time to time), executed and certified
by a Financial Officer of the
Borrower, which shall include appropriate
exhibits, schedules and collateral
reporting requirements as provided for
herein, including in Section 5.08.
"Borrowing Request" shall mean a request by the Borrower for a
Borrowing in accordance with Section
2.04.
"Business Day" shall mean any day other than a Saturday, Sunday
or
other day on which commercial banks in New
York City are required or authorized
to remain closed (and, for a Letter of
Credit, other than a day on which the
applicable Issuing Lender is closed);
provided, however, that when used in
connection with a Eurodollar Loan, the term
"Business Day" shall also exclude
any day on which banks are not open for
dealings in dollar deposits on the
London interbank market.
"Canadian Dollars" and "C$" mean the lawful money of Canada.
"Capitalized Lease" shall mean, as applied to any Person, any lease
of
property by such Person as lessee which
would be capitalized on a balance sheet
of such Person prepared in accordance with
GAAP. The amount of obligations of
such Person under a Capitalized Lease shall
be the capitalized amount thereof
determined in accordance with GAAP.
"Carve-Out" shall mean (i) all fees required to be paid to the
Clerk
of the Bankruptcy Court and to the Office
of the United States Trustee under
section 1930(a) of title 28 of the United
States Code, (ii) all fees and
expenses incurred by a trustee under
Section 726(b) of the Bankruptcy Code,
(iii) after the occurrence and during the
continuance of an Event of Default,
the payment of allowed and unpaid
professional fees and disbursements incurred
by the Borrower, the Guarantors and any
statutory committees appointed in the
Cases (each, a "Committee") in an aggregate
amount not exceeding $35,000,000 and
(iv) all unpaid professional fees and
disbursements incurred or accrued by the
Borrowers, the Guarantors and any
Committees at any time when no Event of
Default is continuing, in an aggregate
amount not exceeding the sum of (x) such
unpaid professional fees and disbursements
reflected on the most recent
Borrowing Base Certificate delivered to the
Administrative Agent prior to any
Event of Default that is then continuing
and (y) such unpaid professional fees
and disbursements incurred or accrued after
the date of such Borrowing Base
Certificate (but at a time when no Event of
Default is continuing) in an
aggregate amount under this clause (y) not
exceeding $5,000,000 (and with
amounts included under this clause (y) to
be supported by back-up documentation
in respect of the amounts and dates of
incurrence of such fees and
disbursements), in each of the foregoing
clauses (i), (ii), (iii) and (iv), to
the extent allowed by the Bankruptcy Court
at any time.
5
<PAGE>
"Cases" shall have the meaning given such term in the
Introduction.
"Cash Collateralization" shall have the meaning given such term
in
Section 2.03(j), and "Cash Collateralize"
shall have the corresponding meaning.
"CGMI" shall have the meaning given such term in Section
10.05(a).
"Change in Law" shall mean (a) the adoption of any law, rule or
regulation after the date of this
Agreement, (b) any change in any law, rule or
regulation or in the interpretation or
application thereof by any Governmental
Authority after the date of this Agreement
or (c) compliance by any Lender or
Issuing Lender (or, for purposes of Section
2.16(b), by any lending office of
such Lender or Issuing Lender or by such
Lender's or Issuing Lender's holding
company, if any) with any request,
guideline or directive (whether or not having
the force of law) of any Governmental
Authority made or issued after the date of
this Agreement.
"Change of Control" shall mean (i) the acquisition of
ownership,
directly or indirectly, beneficially or of
record, by any Person or group
(within the meaning of the Securities
Exchange Act of 1934 and the rules of the
Securities and Exchange Commission
thereunder as in effect on the Closing Date),
of Equity Interests representing more than
50% of the aggregate ordinary voting
power represented by the issued and
outstanding Equity Interests of the
Borrower; or (ii) the occupation of a
majority of the seats (other than vacant
seats) on the Board of Directors of the
Borrower by Persons who were neither (A)
nominated by the Board of Directors of the
Borrower nor (B) appointed by
directors so nominated.
"Closing Date" shall mean October 14, 2005, which is the date
the
Original DIP Credit Agreement was executed
and the conditions precedent to the
making of the initial Loans set forth in
Section 4.01 were satisfied or waived,
which date occurred not later than 15 days
following the entry of the Interim
Order.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from
time to time, and the regulations
promulgated and rulings issued thereunder.
"Collateral" shall mean the "Collateral" as defined in the
Security
and Pledge Agreement.
"Commitment" shall mean either a Tranche A Commitment or a Tranche
B
Commitment.
"Commitment Fee" shall have the meaning given such term in
Section
2.22.
"Commitment Letter" shall mean that certain Commitment Letter
dated
September 22, 2005, among JPMCB, JPMorgan,
CGMI and the Borrower.
"Consummation Date" shall mean the date of the substantial
consummation (as defined in Section 1101 of
the Bankruptcy Code and which for
purposes of this Agreement shall be no
later than the effective date) of a
Reorganization Plan that is confirmed
pursuant to an order of the Bankruptcy
Court.
6
<PAGE>
"Dilution Factors" shall mean, without duplication (including,
without
duplication to the deductions taken into
account in the calculation of Eligible
Receivables), with respect to any period,
the aggregate amount of all
deductions, credit memos, returns,
adjustments, allowances, bad debt write-offs
and other non-cash credits which are
recorded to reduce accounts receivable in a
manner consistent with current and
historical accounting practices of the Loan
Parties.
"Dilution Ratio" shall mean, at any date, the amount (expressed as
a
percentage) equal to (a) the aggregate
amount of the applicable Dilution Factors
for the twelve (12) most recently ended
fiscal months divided by (b) total gross
sales of the Loan Parties for the twelve
(12) most recently ended fiscal months,
or such other amount as may be otherwise
agreed by the Administrative Agent and
the Borrower.
"Dilution Reserve" shall mean, at any date, (i) the amount by
which
the Dilution Ratio exceeds five percent
(5%) multiplied by (ii) the Eligible
Receivables on such date.
"Disclosure Filings" shall mean the following filings made by
the
Borrower with the Securities and Exchange
Commission: (a) the Forms 8-K filed on
March 4, 2005, March 22, 2005, May 16, 2005
and June 30, 2005 relating to the
restatement of certain financial statements
of the Borrower (and any
shareholders' litigation arising out of the
matters disclosed in such Forms
8-K); (b) the Form 8-K filed on May 13,
2005 relating to certain financial
information of the Borrower; (c) the Forms
8-K filed on June 9, 2005, September
8, 2005 and October 3, 2005; (d) the Form
10-K for the year ended December 31,
2004; and (e) the Forms 10-Q for the
quarterly periods ended March 31, 2005 and
June 30, 2005.
"Disposition" shall mean, with respect to any property, any
sale,
lease, sale and leaseback, assignment
(other than for security or collection in
the ordinary course of business),
conveyance, transfer or other disposition
thereof. The terms "Dispose" and "Disposed
of" shall have correlative meanings.
"Dollars" and "$" shall mean lawful money of the United States
of
America.
"Domestic Entities" shall mean the Borrower and its direct and
indirect domestic Subsidiaries on a
consolidated basis.
"DPW" shall have the meaning given such term in Section
10.05(a).
"Eligible Assignee" shall mean (i) a commercial bank having
total
assets in excess of $1,000,000,000, (ii) a
finance company, insurance company or
other financial institution or fund, in
each case reasonably acceptable to the
Administrative Agent, which in the ordinary
course of business extends credit of
the type contemplated herein and has total
assets in excess of $200,000,000 and
whose becoming an assignee would not
constitute a prohibited transaction under
Section 4975 of the Code or Section 406 of
ERISA, (iii) an Affiliate of the
assignor Lender, (iv) an Approved Fund and
(v) any other Person reasonably
satisfactory to the Administrative
Agent.
"Eligible Equipment" shall mean, on any date of determination,
the
aggregate value (as reflected on the
accounting records of the Borrower or the
applicable Guarantor and
7
<PAGE>
consistent with such Person's current and
historical accounting practices) at
such date of all Qualified Equipment and
Machinery owned by the Borrower and the
Guarantors and located in any jurisdiction
in the United States of America as to
which Qualified Equipment and Machinery
appropriate UCC financing statements
have been filed naming the Borrower or the
applicable Guarantor as "debtor" and
JPMorgan Chase Bank, N.A., as
Administrative Agent, as "secured party". As used
herein, the term "Qualified Equipment and
Machinery" means, with respect to the
Borrower or any Guarantor, all Equipment
that is owned solely by such Person and
as to which such Person has good, valid and
marketable and unencumbered title;
provided that no Equipment shall be
considered for inclusion as Qualified
Equipment and Machinery until (i) a
collateral review of such Equipment shall
have been performed by the Agents or their
representatives (the fees and
expenses associated with such review to be
paid by the Borrower in accordance
with the terms of this Agreement) and (ii)
the Administrative Agent shall have
received a third party appraisal of such
Equipment in form and substance, and
prepared by an independent appraisal firm,
reasonably satisfactory to the
Administrative Agent (the fees and expenses
associated with such appraisal to be
paid by the Borrower in accordance with the
terms of this Agreement).
"Eligible Inventory" shall mean, 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
(m) 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 (v) or (vi) of
Section
6.01; or
(b) it is not located in the United
States or, solely in the case of
Inventory that qualifies as Mexican Inventory, Mexico; or
(c) it is not either (i) located on
property owned by a Loan Party, (ii)
Mexican Inventory or (iii) located in a third party warehouse or 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 (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
8
<PAGE>
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
(f) it is consigned at a customer,
supplier or contractor location but
still accounted for in the Loan Party's inventory balance (it
being
understood that the Mexican Inventory shall not be excluded
pursuant
to this clause (f)); provided that a portion of the Loan
Parties'
consigned Inventory (not to exceed 50%) may be included in
"Eligible
Inventory" in the Administrative Agent's discretion to the extent
such
consigned Inventory is (i) on or after January 30, 2006, subject to
an
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 and (ii) otherwise eligible for inclusion
in
the Borrowing Base; or
(g) it is Inventory (other than
Mexican 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 and all Mexican Inventory
in-transit,
which estimate is to be reflected in the Borrowing Base
Certificate);
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; provided that a portion of the Loan Parties' reserve
for
such Inventory (not to exceed 50%) may be included in "Eligible
Inventory" in the Administrative Agent's reasonable discretion to
the
extent such Inventory is otherwise eligible for inclusion in
the
Borrowing Base; 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 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; provided that a portion (not
to
exceed 25%) of the book value of core Inventory that is held for
scrap
value recovery at a location of Automotive Holdings Group may
be
included in "Eligible Inventory" in the Administrative Agent's
reasonable discretion to the extent such Inventory is otherwise
eligible for inclusion in the Borrowing Base; or
9
<PAGE>
(l) such Inventory does not meet all
material applicable standards imposed
by any Governmental Authority having regulatory authority over
it.
"Eligible Real Estate" shall mean, on any date of determination,
the
aggregate value (as reflected on the
accounting records of the Borrower or the
applicable Guarantor and consistent with
such Person's current and historical
accounting practices) at such date of all
Qualified Real Estate owned by the
Borrower and the Guarantors and located in
any jurisdiction in the United States
of America as to which Qualified Real
Estate (x) an appropriate mortgage, deed
of trust or deed to secure debt has been
recorded, to the extent required to be
recorded pursuant Section 2.25(b), naming
the Borrower or the applicable
Guarantor as "mortgagor" or "trustor" and
JPMorgan Chase Bank, N.A., as
Administrative Agent, as "mortgagee" or
"beneficiary" and (y) UCC financing
statements have been filed naming the
Borrower or the applicable Guarantor as
"debtor" and JPMorgan Chase Bank, N.A., as
Administrative Agent, as "secured
party". As used herein, the term "Qualified
Real Estate" means, with respect to
the Borrower or any Guarantor, all real
property that is owned solely by such
Person and as to which such Person has
good, valid and marketable and
unencumbered title; provided that no real
property shall be considered for
inclusion as Qualified Real Estate until
(i) a collateral review of such real
property shall have been performed by the
Agents or their representatives (the
fees and expenses associated with such
review to be paid by the Borrower in
accordance with the terms of this
Agreement) and (ii) the Administrative Agent
shall have received a third party appraisal
of such real property in form and
substance, and prepared by an independent
appraisal firm, reasonably
satisfactory to the Administrative Agent
(the fees and expenses associated with
such appraisal to be paid by the Borrower
in accordance with the terms of this
Agreement).
"Eligible Receivables" means, at the time of any determination
thereof, each Account 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 (t) below. Without limiting the
foregoing, to qualify as Eligible
Receivables, an Account shall indicate no
person other than a Loan Party as
payee or remittance party. 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 agreement or understanding (written
or oral)), (B) without duplication,
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 (v) or (vi)
of
Section 6.01) or (ii) the
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<PAGE>
goods sold with respect to such Account have been sold under a
purchase order or pursuant to the terms of a contract or other
agreement or understanding (written or oral) 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
(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) the Account is not (i) payable in
Dollars or Canadian Dollars 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, 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; provided that Accounts in an aggregate amount not
exceeding $50,000,000 of Account Debtors that (x) are not
organized
under the laws of the United States of America, any state thereof,
the
District of Columbia, or Canada or any province thereof or (y)
are
located outside or have their respective principal places of
business
or substantially all of their assets outside the United States
or
Canada may be included in "Eligible Receivables" in the
Administrative
Agent's reasonable discretion to the extent such Accounts are
otherwise eligible for inclusion in the Borrowing Base; 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, subject to no other Liens
other
than Liens permitted by this
11
<PAGE>
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 bill-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, "progress-billing" means
any
invoice for goods sold or leased or services rendered under a
contract
or agreement pursuant to which the Account Debtor's obligation to
pay
such invoice is conditioned upon the completion by a Loan Party of
any
further
performance under the contract or agreement; or
(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) the Account Debtor (i) has or has
asserted a right of set-off 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 rights) or (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, 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 (except to the extent that
such
right of set-off (x) may not be exercised as a result of the
automatic
stay pursuant to
Section 362 of the Bankruptcy Code or (y) otherwise
may not be currently exercised pursuant to the terms of the
Final
Order); 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,
12
<PAGE>
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.
Notwithstanding the forgoing, all Accounts
of any single Account Debtor and its
Affiliates which, in the aggregate, exceed
(i) 25% in the case of GM
Receivables, (ii) 20% in respect of any
other Account Debtor whose securities
are rated Investment Grade or (iii) 10% in
respect of all other Account Debtors,
of the total amount of all Eligible
Receivables at the time of any determination
shall be deemed not to be Eligible
Receivables to the extent of such excess. 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.
"Environmental Laws" shall mean all laws, rules, regulations,
codes,
ordinances, orders, decrees, judgments,
injunctions, notices or binding
agreements issued, promulgated or entered
into by any Governmental Authority,
relating to the protection of the
environment, preservation or reclamation of
natural resources, the management, release
or threatened release of any
Hazardous Material or to health and safety
matters.
"Environmental Liability" shall mean any liability, contingent
or
otherwise (including any liability for
damages, costs of environmental
remediation, fines, penalties or
indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or
based upon (a) violation of any
Environmental Law, (b) the generation, use,
handling, transportation, storage,
treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened
release of any Hazardous Materials into
the environment or (e) any contract,
agreement or other consensual arrangement
pursuant to which liability is assumed or
imposed with respect to any of the
foregoing.
"Environmental Lien" shall mean a Lien in favor of any
Governmental
Authority for (i) any liability under
federal or state environmental laws or
regulations, or (ii) damages arising from
or costs incurred by such Governmental
Authority in response to a release or
threatened release of a hazardous or toxic
waste, substance or constituent, or other
substance into the environment.
"Equipment" shall have the meaning set forth in Article 9 of
the
Uniform Commercial Code as in effect from
time to time in the State of New York.
13
<PAGE>
"Equity Interests" shall mean shares of capital stock,
partnership
interests, membership interests in a
limited liability company, beneficial
interests in a trust or other equity
ownership interests in a Person, and any
warrants, options or other rights entitling
the holder thereof to purchase or
acquire any such equity interest.
"ERISA"
shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not
incorporated) that, together with the
Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or,
solely for purposes of Section 302
of ERISA and Section 412 of the Code, is
treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined
in
Section 4043 of ERISA or the regulations
issued thereunder with respect to a
Plan (other than an event for which the
30-day notice period is waived); (b) the
existence with respect to any Plan of an
"accumulated funding deficiency" (as
defined in Section 412 of the Code or
Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section
412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of
the minimum funding standard with
respect to any Plan; (d) the incurrence by
the Borrower or any of its ERISA
Affiliates of any liability under Title IV
of ERISA with respect to the
termination of any Plan; (e) the receipt by
the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of
any notice relating to an intention to
terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f)
the incurrence by the Borrower or any of
its ERISA Affiliates of any liability
with respect to the withdrawal or partial
withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by
the Borrower or any ERISA Affiliate of
any notice, or the receipt by any
Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning
the imposition of Withdrawal Liability
or a determination that a Multiemployer
Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of
Title IV of ERISA.
"Eurocurrency Liabilities" shall have the meaning assigned thereto
in
Regulation D issued by the Board, as in
effect from time to time.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers
to whether such Loan, or the Loans
comprising such Borrowing, are bearing
interest at a rate determined by reference
to the Adjusted LIBO Rate.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar
Loans.
"Event of Default" shall have the meaning given such term in
Section
7.
"Excluded Taxes" shall mean, with respect to the Administrative
Agent,
any Lender, any Issuing Lender or any other
recipient of any payment to be made
by or on account of any obligation of the
Borrower hereunder, (a) income,
franchise, or similar taxes imposed on (or
measured by) its net income as a
result of a present or former connection
between the Administrative Agent or
such Lender and the jurisdiction of the
Governmental Authority imposing such Tax
or any political subdivision or Taxing
authority thereof or therein (other than
any such connection arising solely from the
Administrative Agent or such Lender
having
14
<PAGE>
executed, delivered or performed its
obligations or received payment under, or
enforced, this Agreement or any other Loan
Document), (b) any branch profits
taxes imposed by the United States of
America or any similar tax imposed by any
other jurisdiction in which the Borrower is
located and (c) any withholding tax
that would have been imposed had such
payment been made to such Lender at the
time such Lender became a party to this
Agreement (or designates a new lending
office) or is attributable to such Lender's
failure to comply with Sections
2.18(e) and (f), except to the extent that
such Lender (or its assignor, if any)
was entitled, at the time of designation of
a new lending office (or
assignment), to receive additional amounts
from the Borrower with respect to
such withholding tax pursuant to Section
2.18(a).
"Existing Agreement" shall mean the 5-Year Third Amended and
Restated
Credit Agreement dated as of June 14, 2005
among the Borrower, the Existing
Lenders and the Existing Agent, as amended,
restated, or otherwise modified from
time to time, and shall include all of the
agreements providing guaranties by
the Existing Guarantors and granting
security interests and Liens in property
and assets of the Borrower and the Existing
Guarantors to the Existing Agent or
the Existing Lenders, including the
security agreements and other agreements
listed on Schedule 1.01 hereto, each of
which documents was executed and
delivered (to the extent party thereto) by
the Borrower and the Existing
Guarantors prior to the Filing Date, as
each may have been amended or modified
from time to time.
"Existing Agent" shall mean JPMCB, in its capacity as
administrative
agent under the Existing Agreement, and its
successors in such capacity.
"Existing Collateral" shall mean the "Collateral" as defined in
the
Existing Agreement.
"Existing Guarantors" shall mean the Subsidiaries of the Borrower
that
provided guarantees of the Borrower's
obligations under the Existing Credit
Agreement.
"Existing Indebtedness" shall mean Indebtedness and other
obligations
incurred by the Borrower and the Existing
Guarantors under the Existing
Agreement.
"Existing Lenders" shall mean the lenders from time to time
holding
Existing Indebtedness.
"Existing Letters of Credit" means all outstanding letters of
credit
previously issued by JPMCB, as issuing
lender under the Existing DIP Credit
Agreement.
"Facility Availability Amount" means, at any time, an amount equal
to
(A) the lesser of (x) the Total Commitment
at such time and (y) the Borrowing
Base, MINUS (B) the sum of the aggregate
principal amount of the outstanding
Tranche A Loans, plus the aggregate
principal amount of the outstanding Tranche
B Loans, plus the LC Exposure, PLUS (C) an
amount (up to a maximum of
$500,000,000) equal to the excess (if any)
of the unrestricted cash reflected on
the consolidated balance sheet of the
Borrower and its Subsidiaries then most
recently delivered to the Lenders over
$500,000,000.
"Federal Funds Effective Rate" shall mean, for any day, the
weighted
average (rounded upwards, if necessary, to
the next 1/100 of 1%) of the rates on
overnight Federal funds
15
<PAGE>
transactions with members of the Federal
Reserve System arranged by Federal
funds brokers, as published on the next
succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate
is not so published for any day that
is a Business Day, the average (rounded
upwards, if necessary, to the next 1/100
of 1%) of the quotations for such day for
such transactions received by the
Administrative Agent from three Federal
funds brokers of recognized standing
selected by it.
"Fees" shall collectively mean the Commitment Fees, Letter of
Credit
Fees and other fees referred to in Sections
2.21, 2.22 and 2.23.
"Filing Date" shall mean October 8, 2005.
"Final Order" shall have the meaning given such term in Section
4.02(d). The Final order as entered by the
Bankruptcy Court on October 28, 2005
is attached hereto as Exhibit A-2.
"Financial Officer" shall mean the chief financial officer,
chief
restructuring officer or treasurer of the
Borrower.
"Fixed Asset Component" shall mean, on any date, an amount equal
to
the sum of (i) 80% of the Net Orderly
Liquidation Value of Eligible Equipment
plus (ii) 50% of the fair market value of
Eligible Real Estate (as set forth in
the most recent third party real estate
appraisal in form and substance, and
prepared by an independent appraisal firm,
reasonably satisfactory to the
Administrative Agent ) less (iii) reserves
as are deemed necessary from time to
time by the Administrative Agent in its
reasonable discretion, including a
reserve in respect of matters disclosed in
the environmental consultant report
required to be delivered pursuant to
Section 5.12.
"Foreign Lender" shall mean any Lender that is organized under
the
laws of a jurisdiction other than that in
which the Borrower is located and that
is not a "United States Person" as defined
in Section 7701(a)(30) of the Code.
For purposes of this definition and
Sections 2.18(e) and (f), the United States
of America, each State thereof and the
District of Columbia shall be deemed to
constitute a single jurisdiction.
"Foreign Receivables Financing" means Indebtedness and other
financings relating to securitizations and
factoring arrangements entered into
by any of the Foreign Subsidiaries.
"Foreign Subsidiary" shall mean any direct or indirect non-U.S.
Subsidiary of the Borrower.
"Foreign Subsidiary Debt Limit" shall have the meaning given such
term
in Section 6.03.
"GAAP" shall mean
generally accepted accounting principles applied in
accordance with Section 1.03.
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<PAGE>
"Global EBITDAR" shall mean, for any period, all as determined
in
accordance with GAAP, the consolidated net
income (or net loss) of the Global
Entities for such period, plus (a) to the
extent deducted in the calculation of
consolidated net income, without
duplication, the sum of (i) income tax expense,
(ii) interest expense, (iii) amortization
or write-off of debt discount and debt
issuance costs and commissions, discounts
and other fees and charges associated
with Indebtedness (including the Loans),
(iv) depreciation and amortization
expense, (v) amortization of intangibles
(including, but not limited to,
goodwill) and organization costs, (vi) any
extraordinary, unusual or non
recurring non cash expenses or losses
(including to the extent constituting
Restructuring Costs) and one-time
write-downs of assets, (vii) any expenses
accounted by the Borrower or any of it
Subsidiaries in such period for
post-employment benefits under FAS 106,
(viii) any cash Restructuring Costs of
the Borrower and its Subsidiaries in an
aggregate amount not exceeding (x) for
each four fiscal quarter period ending
December 31, 2005, March 31, 2006,
September 30, 2006 and December 31, 2006,
$175,000,000 and (y) for any four
fiscal quarter period ending in 2007,
$100,000,000, (ix) professional fees and
other "Chapter 11 expenses" (or
"administrative costs reflecting Chapter 11
expenses") attributable to the Borrower and
the Guarantors for such period as
shown on the Borrower's consolidated
statement of income for such period, and
(x) the cumulative effect of any change in
accounting principles minus (b) to
the extent included in the calculation of
consolidated net income, the sum of
(1) interest income, (2) any extraordinary,
unusual or non-recurring gains, all
as determined on a consolidated basis and
(3) any cash payments made during such
period in respect of expenses described in
clause (vii) above taken in such
period.
"Global Entities" shall mean the Borrower and all of its direct
and
indirect Subsidiaries, on a consolidated
basis.
"GM Receivables" shall mean any Accounts owing from General
Motors
Corporation and its Affiliates.
"Governmental Authority" shall mean the government of the
United
States of America, any other nation or any
political subdivision thereof,
whether state or local, and any agency,
authority, instrumentality, regulatory
body, court, central bank or other entity
exercising executive, legislative,
judicial, taxing, regulatory or
administrative powers or functions of or
pertaining to government.
"Guarantor" shall have the meaning set forth in the
Introduction.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes and all hazardous or
toxic substances, wastes or other
pollutants, including petroleum or
petroleum distillates, asbestos or asbestos
containing materials, polychlorinated
biphenyls, radon gas, infectious or
medical wastes and all other substances or
wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreements" shall mean (x) foreign exchange contracts,
currency swap agreements, currency future
or option contracts and other similar
agreements designed to hedge against
fluctuations in foreign interest or
exchange rates, (y) interest rate swap, cap
or collar agreements and interest
rate future or option contracts designed to
hedge against fluctuations in
17
<PAGE>
interest rates and (z) commodity price
protection agreements or other commodity
price hedging arrangements.
"Indebtedness" shall mean, at any time and with respect to any
Person,
(i) all indebtedness of such Person for
borrowed money, (ii) all indebtedness of
such Person for the deferred purchase price
of property or services (other than
property, including inventory, and services
purchased, trade payables that are
not more than 90 days past due (or that are
more than 90 days past due, if the
validity or amount thereof is being
contested in good faith and by appropriate
proceedings or if such Person shall have
set aside on its books adequate
reserves therefor in accordance with GAAP)
and expense accruals and deferred
compensation items arising in the ordinary
course of business), (iii) all
obligations of such Person evidenced by
notes, bonds, debentures or other
similar instruments (other than
performance, surety and appeal bonds and
completion guarantees arising in the
ordinary course of business), (iv) all
indebtedness of such Person created or
arising under any conditional sale or
other title retention agreement with
respect to property acquired by such Person
(even though the rights and remedies of the
seller or lender under such
agreement in the event of default are
limited to repossession or sale of such
property, in which case such Indebtedness
shall be limited to the value of the
property), (v) all obligations of such
Person under Capitalized Leases, (vi) (A)
all reimbursement, payment or similar
obligations of such Person, contingent or
otherwise, under acceptance, letter of
credit or similar facilities and (B) all
obligations of such Person in respect of
Hedging Agreements; (vii) all
Indebtedness referred to in clauses (i)
through (vi) above guaranteed directly
or indirectly by such Person, or in effect
guaranteed directly or indirectly by
such Person through an agreement (A) to pay
or purchase such Indebtedness or to
advance or supply funds for the payment or
purchase of such Indebtedness, (B) to
purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell
services, primarily for the purpose of
enabling the debtor to make payment of
such Indebtedness or to assure the holder
of such Indebtedness against loss in
respect of such Indebtedness, (C) to supply
funds to or in any other manner
invest in the debtor (including any
agreement to pay for property or services
irrespective of whether such property is
received or such services are rendered)
or (D) otherwise to assure a creditor
against loss in respect of such
Indebtedness, and (viii) all Indebtedness
referred to in clauses (i) through
(vii) above secured by (or for which the
holder of such Indebtedness has an
existing right, contingent or otherwise, to
be secured by) any Lien upon or in
property (including accounts and contract
rights) owned by such Person, even
though such Person has not assumed or
become liable for the payment of such
Indebtedness; provided, however, such
Indebtedness referred to in this clause
(viii) shall be the lesser of the value of
such property on which a Lien is
attached or the amount of such
Indebtedness.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnitee" shall have the meaning given such term in Section
10.05(b).
"Insufficiency" shall mean, with respect to any Plan, its "amount
of
unfunded benefit liabilities" within the
meaning of Section 4001(a)(18) of
ERISA, if any.
"Intellectual Property" shall mean the collective reference to
all
rights, priorities and privileges relating
to intellectual property, whether
arising under United States, multinational
or foreign laws or otherwise,
including copyrights, copyright licenses,
patents, patent licenses,
18
<PAGE>
trademarks, trademark licenses, technology,
know-how and processes, and all
rights to sue at law or in equity for any
infringement or other impairment
thereof, including the right to receive all
proceeds and damages therefrom.
"Interest Election Request" shall mean a request by the Borrower
to
convert or continue a Borrowing in
accordance with Section 2.06.
"Interest Payment Date" shall mean (i) as to any Eurodollar
Loan
included in any Eurodollar Borrowing, the
last day of each consecutive 30 day
period running from the commencement of the
applicable Interest Period, and (ii)
as to all ABR Loans, the last calendar day
of each month and the date on which
any ABR Loans are converted to Eurodollar
Loans pursuant to Section 2.06.
"Interest Period" shall mean, as to any Eurodollar Borrowing,
the
period commencing on the date of such
Borrowing (including as a result of a
conversion from ABR Loans) or on the last
day of the preceding Interest Period
applicable to such Eurodollar Borrowing and
ending on the numerically
corresponding day (or if there is no
corresponding day, the last day) in the
calendar month that is one, three or six
months thereafter, as the Borrower may
elect in the related notice delivered
pursuant to Sections 2.04 or 2.06;
provided, however, that (i) if any Interest
Period would end on a day which
shall not be a Business Day, such Interest
Period shall be extended to the next
succeeding Business Day unless such next
succeeding Business Day would fall in
the next calendar month, in which case such
Interest Period shall end on the
next preceding Business Day, and (ii) no
Interest Period shall end later than
the Termination Date.
"Interim Order" shall have the meaning given such term in
Section
4.01(b).
"Inventory" shall have the meaning set forth in Article 9 of
the
Uniform Commercial Code as in effect from
time to time in the State of New York.
"Inventory Reserves" shall mean reserves against Inventory equal
to
the sum of the following:
(a) an unrecorded book to physical
inventory reduction determined by the
Borrower based on its most recent physical inventory or cycle
counts
or as otherwise determined by the Administrative Agent in its
reasonable discretion;
(b) a revaluation reserve whereby
favorable variances shall be deducted
from Eligible Inventory and unfavorable variances shall not be
added
to Eligible Inventory;
(c) a lower of cost or market value
reserve for any differences between a
Loan Party's actual cost to produce versus its selling price to
third
parties, as calculated on a quarterly basis;
(d) a reserve in an amount equal to
five percent (5%) of the Eligible
Inventory that is Mexican Inventory; provided that such percentage
may
be increased from time to time by the Administrative Agent in
its
reasonable discretion; and
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<PAGE>
(e) any other reserve as deemed
necessary from time to time by the
Administrative Agent in its reasonable discretion.
"Inventory Value" shall mean with respect to any Inventory of a
Loan
Party at the time of any determination
thereof, the standard cost 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.
"Investment Credit" shall mean the amount of dividends,
distributions,
returns of equity, repayments of advances
or similar payments paid to the
Borrower or any of the Guarantors during
the term of this Agreement by any
Person in which Investments may be made
under Section 6.09(ix).
"Investment Grade" shall mean a rating established by a third
party
rating agency, equivalent to 'BBB-' by
S&P or 'Baa3' by Moody's, or better.
"Investments" shall have the meaning given such term in Section
6.09.
"Issuing Lender" shall mean JPMCB, in its capacity as the issuer
of
Letters of Credit hereunder, and its
successors in such capacity as provided in
Section 2.03(i) and such other Lenders
(which other Lenders shall be reasonably
satisfactory to the Administrative Agent)
as may agree with the Borrower to act
in such capacity. Any Issuing Lender may,
in its discretion, arrange for one or
more Letters of Credit to be issued by
Affiliates of such Issuing Lender, in
which case the term "Issuing Lender" shall
include any such Affiliate with
respect to Letters of Credit issued by such
Affiliate.
"JPMorgan" shall have the meaning given such term in Section
10.05(a).
"JPMCB" shall have the meaning given such term in the
Introduction.
"Landlord Lien Waiver" shall mean 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.
"LC Disbursement" shall mean a payment made by the Issuing
Lender
pursuant to a Letter of Credit.
"LC Exposure" shall mean, at any time, the sum of (a) the
aggregate
undrawn amount of all outstanding Letters
of Credit at such time plus (b) the
aggregate amount of all LC Disbursements
that have not yet been reimbursed by or
on behalf of the Borrower at such time.
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<PAGE>
The LC Exposure of any Tranche A Lender at
any time shall be its Tranche A
Commitment Percentage of the LC Exposure at
such time.
"Lenders" shall have the meaning set forth in the Introduction.
"Letter of Credit" shall mean (a) the Existing Letters of Credit
and
(b) any irrevocable letter of credit issued
pursuant to Section 2.03, which
letter of credit shall be (i) an import
documentary or a standby letter of
credit, (ii) issued for purposes that are
consistent with the provisions of this
Agreement (including Section 3.09), (iii)
denominated in Dollars and (iv)
otherwise in such form as may be reasonably
approved from time to time by the
Administrative Agent and the applicable
Issuing Lender.
"Letter of Credit Account" shall mean the account established by
the
Borrower under the sole and exclusive
control of the Administrative Agent
maintained at the office of the
Administrative Agent at 270 Park Avenue, New
York, New York 10017 designated as the
"Delphi Letter of Credit Account" that
shall be used solely for the purposes set
forth herein.
"Letter of Credit Fees" shall mean the fees payable in respect
of
Letters of Credit pursuant to Section
2.23.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing
for
any Interest Period, the rate appearing on
Page 3750 of the Dow Jones Market
Service (or on any successor or substitute
page of such Service, or any
successor to or substitute for such
Service, providing rate quotations
comparable to those currently provided on
such page of such Service, as
determined by the Administrative Agent from
time to time for purposes of
providing quotations of interest rates
applicable to dollar deposits in the
London interbank market) at approximately
11:00 a.m., London time, two Business
Days prior to the commencement of such
Interest Period, as the rate for dollar
deposits with a maturity comparable to such
Interest Period. In the event that
such rate is not available at such time for
any reason, then the "LIBO Rate"
with respect to such Eurodollar Borrowing
for such Interest Period shall be the
rate at which dollar deposits of $5,000,000
and for a maturity comparable to
such Interest Period are offered by the
principal London office of the
Administrative Agent in immediately
available funds in the London interbank
market at approximately 11:00 a.m., London
time, two Business Days prior to the
commencement of such Interest Period.
"Lien" shall mean (a) any mortgage, deed of trust, pledge,
hypothecation, security interest,
encumbrance, lien or charge of any kind
whatsoever, (b) the interest of a vendor or
a lessor under any conditional sale,
capital lease or other title retention
agreement (or any financing lease having
substantially the same economic effect as
any of the foregoing) and (c) in the
case of securities, any purchase option,
call or similar right of a third party
with respect to such securities.
"Loan" shall mean, collectively, the Tranche A Loans and the
Tranche B
Loan.
"Loan Documents" shall mean this Agreement, the Letters of Credit,
the
Security and Pledge Agreement, and any
other instrument or agreement executed
and delivered by the Borrower or any
Guarantor to the Administrative Agent or
any Lender in connection herewith.
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<PAGE>
"Loan Parties" shall mean the Borrower and the Guarantors.
"Material Adverse Effect" shall mean a material adverse effect on
(a)
the business, financial condition,
operations or assets of (i) the Domestic
Entities taken as a whole or (ii) the
Global Entities taken as a whole, (b) the
validity or enforceability of this
Agreement or any other Loan Documents or (c)
the rights and remedies of the
Administrative Agent or the Lenders hereunder or
thereunder; provided that (x) the failure
to make a contribution to any Plan and
any Lien resulting therefrom that arises
pursuant to Section 412(n) of the Code
shall not be considered to have such a
material adverse effect, so long as (1)
any such Lien encumbering assets of a
Domestic Entity shall be permitted under
Section 6.01(xviii) and (2) any such Lien
encumbering assets of a Foreign
Subsidiary shall be permitted under Section
6.01(xix), it being understood that
subsequent events, developments and
circumstances relating to such failure to
make a contribution to a Plan and the
resulting Liens may be considered in
determining whether such subsequent events,
developments and circumstances have
had or could reasonably be expected to have
such a material adverse effect, (y)
events, developments and circumstances
disclosed in the Disclosure Filings and
any information disclosed to the Lenders
prior to the Closing Date shall not be
considered to have such a material adverse
effect, although subsequent events,
developments and circumstances relating to
such disclosed matters which reveal
material adverse changes in such disclosed
matters may be considered in
determining whether such subsequent events,
developments and circumstances have
had or could reasonably be expected to have
such a material adverse effect and
(z) the commencement of the Cases and the
consequences that customarily result
therefrom shall not be considered to have
such a material adverse effect.
"Maturity Date" shall mean October 8, 2007.
"Mexican Inventory" shall mean Inventory that is owned by a Loan
Party
and has been consigned to a Mexican
Subsidiary of the Borrower; provided that no
Inventory shall qualify as Mexican
Inventory unless (i) the rights of the Loan
Parties under the agreements pursuant to
which such Inventory is so consigned
are subject to a first priority Lien in
favor of the Administrative Agent and
(ii) such Inventory is (x) located at a
plant owned by the Borrower or its
Subsidiaries, (y) in-transit between such a
plant and a location owned or leased
by a Loan Party or (z) located on property
as to which an enforceable power of
attorney and other requisite documentation
(in each case in form and substance
reasonably satisfactory to the
Administrative Agent) providing the
Administrative Agent rights of access to
such Inventory has been delivered to
the Administrative Agent.
"Minority Lenders" shall have the meaning given such term in
Section
10.09.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as defined
in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean in connection with any Asset Sale
or
any Recovery Event, the proceeds thereof in
the form of cash and Permitted
Investments, net of attorneys' fees,
accountants' fees, investment banking fees,
commissions, premiums, amounts
22
<PAGE>
required to be applied to the repayment of
Indebtedness secured by a Lien
permitted hereunder on any asset that is
the subject of such Asset Sale or
Recovery Event (other than any Lien
pursuant to the Security and Pledge
Agreement) and other customary fees and
expenses actually incurred in connection
therewith and net of taxes paid or
reasonably estimated to be payable as a
result thereof (after taking into account
any available tax credits or
deductions and any tax sharing
arrangements) and a reasonable reserve for
purchase price adjustments and
indemnification payments that could reasonably be
expected to arise during the term of the
Tranche A Loans and the Tranche B
Loans; provided that in the case of any
Asset Sale or Recovery Event in respect
of which the Net Cash Proceeds do not
exceed $2,500,000, such Net Cash Proceeds
shall not be deemed to constitute "Net Cash
Proceeds" for purposes of Section
2.13 until the aggregate amount of all such
excluded Net Cash Proceeds is at
least $10,000,000.
"Net Orderly Liquidation Value" shall mean, with respect to
Inventory
or Equipment, as the case may be, the
orderly liquidation value with respect to
such Inventory or Equipment, 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.
"Net Recovery Rate" shall mean, 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.
"Non-Filed Domestic Entity" means any Domestic Entity that is not
a
Guarantor.
"Obligations" shall mean (a) the due and punctual payment of
principal
of and interest on the Loans and the
reimbursement of all amounts drawn under
Letters of Credit, and (b) the due and
punctual payment of the Fees and all
other present and future, fixed or
contingent, monetary obligations of the
Borrower and the Guarantors to the Lenders
and the Administrative Agent under
the Loan Documents.
"Orders" shall mean the Interim Order and the Final Order.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or
property taxes, charges or similar
levies arising from any payment made
hereunder or from the execution, delivery
or enforcement of, or otherwise with
respect to, this Agreement.
"Participant" shall have the meaning given such term in Section
10.03(d).
"Patriot Act" shall mean the USA Patriot Act, Title III of Pub.
L.
107-56, signed into law on October 26,
2001.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or
any
successor agency or entity performing
substantially the same functions.
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<PAGE>
"Permitted Investments" shall mean (a) marketable direct
obligations
issued by, or unconditionally guaranteed
by, the United States Government or
issued by any agency thereof and backed by
the full faith and credit of the
United States, in each case maturing within
one year from the date of
acquisition; (b) certificates of deposit,
time deposits, eurodollar time
deposits, overnight bank deposits or bank
notes having maturities of 270 days or
less from the date of acquisition issued by
any Lender or by any commercial bank
organized under the laws of the United
States or any state thereof having
combined capital and surplus of not less
than $250,000,000; (c) commercial paper
of an issuer rated at least A-2 by S&P
or P-2 by Moody's, or carrying an
equivalent rating by a nationally
recognized rating agency, if both of the two
named rating agencies cease publishing
ratings of commercial paper issuers
generally, and maturing within six months
from the date of acquisition; (d)
repurchase obligations of any Lender or of
any commercial bank satisfying the
requirements of clause (b) of this
definition, having a term of not more than 30
days, with respect to securities issued or
fully guaranteed or insured by the
United States government; (e) securities
with maturities of one year or less
from the date of acquisition issued or
fully guaranteed by any state,
commonwealth or territory of the United
States, by any political subdivision or
taxing authority of any such state,
commonwealth or territory or by any foreign
government, the securities of which state,
commonwealth, territory, political
subdivision, taxing authority or foreign
government (as the case may be) are
rated at least A by S&P or A by
Moody's; (f) securities with maturities of six
months or less from the date of acquisition
backed by standby letters of credit
issued by any Lender or any commercial bank
satisfying the requirements of
clause (b) of this definition; (g) money
market mutual or similar funds that
invest exclusively in assets satisfying the
requirements of clauses (a) through
(f) of this definition; (h) money market
funds that (i) comply with the criteria
set forth in SEC Rule 2a-7 under the
Investment Company Act of 1940, as amended,
(ii) are rated AAA by S&P and Aaa by
Moody's and (iii) have portfolio assets of
at least $5,000,000,000; or (i) in the case
of any Foreign Subsidiary, (x)
direct obligations of the sovereign nation
(or any agency thereof) in which such
Foreign Subsidiary is organized or is
conducting business or in obligations
fully and unconditionally guaranteed by
such sovereign nation (or any agency
thereof), or (y) investments of the type
and maturity described in clauses (a)
through (g) above of foreign obligors,
which investments or obligors have
ratings described in such clauses or
equivalent ratings from comparable foreign
rating agencies, with references in clauses
(a), (b) and (d) above to the
"United States" being understood to mean
the sovereign nation in which such
Foreign Subsidiary is organized or
conducting business or other jurisdiction
sharing the same currency as such sovereign
nation.
"Person"
shall mean any natural person, corporation, division of a
corporation, partnership, limited liability
company, trust, joint venture,
association, company, estate,
unincorporated organization or Governmental
Authority or any agency or political
subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than
a
Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan
were terminated, would under Section
4062 of ERISA be deemed to be) a
"contributing sponsor" as defined in Section
4001(a)(13) of ERISA or a member of its
"controlled group" as defined in Section
4001(a)(14) of ERISA.
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<PAGE>
"Prepayment Date" shall mean the date that is forty-five (45)
days
after the entry of the Interim Order by the
Bankruptcy Court if the Final Order
has not been entered by the Bankruptcy
Court prior to the expiration of such
forty-five (45) day period, or if the Final
Order as entered by the Bankruptcy
Court does not authorize (i) credit
extensions under this Agreement of up to
$2,000,000,000 and (ii) such changes to the
Loan Documents as the Administrative
Agent and the Arrangers may reasonably
determine are advisable in order to
ensure a successful syndication of the loan
facilities hereunder (subject to any
limitations on such changes contained in
the fee letter referred to in Section
2.21).
"Pre-Petition Payment" shall mean a payment (by way of adequate
protection or otherwise) of principal or
interest or otherwise on account of any
pre-petition Indebtedness or trade payables
or other pre-petition claims against
the Borrower or any Guarantor.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by JPMCB as its
prime rate in effect at its
principal office in New York City; each
change in the Prime Rate shall be
effective from and including the date such
change is publicly announced as being
effective.
"Recovery Event" shall mean 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, in each case in an amount in
excess of $5,000,000.
"Reduced Availability Period" shall have the meaning given such
term
in Section 5.08.
"Register" shall have the meaning given such term in Section
10.03(b)(iv).
"Related Parties" shall mean, with respect to any specified
Person,
such Person's Affiliates and the respective
directors, officers, employees,
agents and advisors of such Person and such
Person's Affiliates.
"Rent Reserve" shall mean, with respect to any plant, warehouse
distribution center or other operating
facility where any Inventory subject to
landlords' Liens or other Liens arising by
operation of law is located, a
reserve equal to one (1) month's 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.
"Reorganization Plan" shall mean a plan of reorganization in any
of
the Cases.
"Required Lenders" shall mean, at any time, Lenders having Tranche
A
Commitments at such time (or, if the Total
Tranche A Commitment has been
terminated, Lenders holding Tranche A Loans
and LC Exposure at such time) and
Lenders holding a portion of the Tranche B
Loan at such time (or, if the Tranche
B Loan is not outstanding, Lenders holding
Tranche B Commitments at such time)
representing in excess of 50% of the sum of
the Total Tranche A Commitment at
such time (or, if the Total Tranche A
Commitment has been terminated, the
Tranche A Total Commitment Usage at such
time) plus the Total Tranche B
Commitment at such time.
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<PAGE>
"Restructuring Costs" shall mean any and all of (i) the costs
and
expenses of restructuring, consolidating or
closing of any of the plants,
facilities or offices of the Borrower or
any of its Subsidiaries, (ii) the costs
of severance or other similar payments
relating to the termination of employees
at such plants, facilities or offices,
(iii) machine transfer costs or any
similar such costs at such plants,
facilities or offices, (iv) costs and
expenses in respect of the termination or
settlement of executory contracts and
(v) other non-cash charges in respect of
other pre-petition obligations.
"S&P" shall mean Standard & Poor's, a division of The
McGraw-Hill
Companies, Inc.
"Secured Domestic Hedging Obligations" shall mean on any date,
all
obligations of the Borrowers and the
Guarantors in respect of Hedging
Agreements, which obligations are secured
by a Lien on any asset of any Domestic
Entity.
"Secured Obligations" shall have the meaning set forth in the
Security
and Pledge Agreement.
"Security and Pledge Agreement" shall mean the Amended and
Restated
Security and Pledge Agreement dated as of
the date hereof in substantially the
form of Exhibit B.
"Single Employer Plan" shall mean a single employer plan, as
defined
in Section 4001(a)(15) of ERISA, that is
maintained for employees of the
Borrower or an ERISA Affiliate.
"Statutory Reserve Rate" shall mean a fraction (expressed as a
decimal), the numerator of which is the
number one and the denominator of which
is the number one minus the aggregate of
the maximum reserve percentages
(including any marginal, special, emergency
or supplemental reserves) expressed
as a decimal established by the Board to
which the Administrative Agent is
subject for eurocurrency funding (currently
referred to as "Eurocurrency
Liabilities" in Regulation D of the Board).
Such reserve percentages shall
include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding
and to be subject to such reserve
requirements without benefit of or credit
for proration, exemptions or offsets
that may be available from time to time to
any Lender under such Regulation D or
any comparable regulation. The Statutory
Reserve Rate shall be adjusted
automatically on and as of the effective
date of any change in any reserve
percentage.
"Subsidiary" shall mean, with respect to any Person (in this
definition referred to as the "parent"),
any corporation, association or other
business entity (whether now existing or
hereafter organized) of which at least
a majority of the securities or other
ownership or membership interests having
ordinary voting power for the election of
directors is, at the time as of which
any determination is being made, owned or
controlled by the parent or one or
more subsidiaries of the parent or by the
parent and one or more subsidiaries of
the parent.
"Super-majority Lenders" shall have the meaning given such term
in
Section 10.09.
"Superpriority Claim" shall mean a claim against the Borrower and
any
Guarantor in any of the Cases which is an
administrative expense claim having
priority over any or all
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administrative expenses of the kind
specified in Sections 503(b) or 507(b) of
the Bankruptcy Code.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or
withholdings imposed by any Governmental
Authority.
"Termination Date" shall mean the earliest to occur of (i) the
Prepayment Date, (ii) the Maturity Date,
(iii) the Consummation Date and (iv)
the acceleration of the Loans and the
termination of the Total Commitment in
accordance with the terms hereof.
"Termination Event" shall mean (i) a "reportable event", as such
term
is described in Section 4043(c) of ERISA
(other than a "reportable event" as to
which the 30-day notice is waived under
subsection .22, .23, .25, .27 or .28 of
PBGC Regulation Section 4043) or an event
described in Section 4068 of ERISA and
excluding events which would not be
reasonably likely (as reasonably determined
by the Agent) to have a material adverse
effect on the operations, business,
properties, assets or condition (financial
or otherwise) of the Borrower and the
Guarantors taken as a whole, or (ii) the
imposition of any Withdrawal Liability
on the Borrower or any ERISA Affiliate, or
(iii) providing notice of intent to
terminate a Plan pursuant to Section
4041(c) of ERISA or the treatment of a Plan
amendment as a termination under Section
4041 of ERISA, if such amendment
requires the provision of security, or (iv)
the institution of proceedings to
terminate a Plan by the PBGC under Section
4042 of ERISA, or (v) any other event
or condition (other than the commencement
of the Cases and the failure to have
made any contribution accrued as of the
Filing Date but not paid) which would
reasonably be expected to constitute
grounds under Section 4042 of ERISA for the
termination of, or the appointment of a
trustee to administer, any Plan, or the
imposition of any liability under Title IV
of ERISA (other than for the payment
of premiums to the PBGC in the ordinary
course).
"Total Commitment" shall mean, at any time, the sum of the
Total
Tranche A Commitment and the Total Tranche
B Commitment at such time.
"Total Commitment Percentage" shall mean at any time, with respect
to
each Tranche A Lender or Tranche B Lender,
the percentage obtained by dividing
such Lender's Tranche A Commitment and/or
Tranche B Commitment, as the case may
be, by the Total Commitment at such
time.
"Total Commitment Usage" shall mean, at any time, the sum of
the
Tranche A Total Commitment Usage and the
outstanding principal amount of the
Tranche B Loan.
"Total Tranche A Commitment" shall mean, any time, the sum of
the
Tranche A Commitments at such time.
"Total Tranche B Commitment" shall mean, at any time, (i) prior to
the
funding of the Tranche B Loan pursuant to
Section 2.01(b), the sum of the
Tranche B Commitments at such time and (ii)
on and after funding of the Tranche
B Loan pursuant to 2.01(b), the outstanding
principal amount of the Tranche B
Loan at such time.
"Tranche A Commitment" shall mean the commitment of each Tranche
A
Lender to make Tranche A Loans hereunder in
the amount set forth opposite its
name in Annex A hereto
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<PAGE>
or as may be subsequently set forth in the
Register from time to time, as the
case may be, and as may be reduced from
time to time pursuant to Sections 2.12
and 2.13. The initial aggregate amount of
the Tranche A Commitment is
$1,750,000,000.
"Tranche A Commitment Percentage" shall mean, at any time, with
respect to each Tranche A Lender, the
percentage obtained by dividing its
Tranche A Commitment at such time by the
Total Tranche A Commitment or, if the
Tranche A Commitments have been terminated,
the Tranche A Commitment Percentage
of each Tranche A Lender that existed
immediately prior to such termination.
"Tranche A Lender" shall mean each Lender having a Tranche A
Commitment.
"Tranche A Loan" shall have the meaning set forth in Section
2.01(a).
"Tranche A Total Commitment Usage" shall mean, at any time, the sum
of
(i) the aggregate outstanding principal
amount of all Tranche A Loans and (ii)
the aggregate LC Exposure at such time.
"Tranche B Commitment" shall mean the commitment of each Tranche
B
Lender to make such amount of the Tranche B
Loan hereunder in the amount set
forth opposite its name on Annex A hereto
or as may be subsequently set forth in
the Register from time to time, as the case
may be and as the same may be
reduced from time to time pursuant to the
last sentence of Section 2.01(b) and
Sections 2.12 and 2.13. The initial
aggregate amount of the Tranche B Commitment
is $250,000,000.
"Tranche B Commitment Percentage" shall mean, at any time, with
respect to each Tranche B Lender, the
percentage obtained by dividing its
Tranche B Commitment at such time by the
Total Tranche B Commitment.
"Tranche B Lender" shall mean each Lender having a Tranche B
Commitment.
"Tranche B Loan" shall have the meaning set forth in Section
2.01(b).
"Transactions" shall mean the execution, delivery and performance
by
the Borrower and Guarantors of this
Agreement, the borrowing of Loans, the use
of the proceeds thereof and the request for
and issuance of Letters of Credit
hereunder.
"Type", when used in reference to any Loan or Borrowing, refers
to
whether the rate of interest on such Loan,
or on the Loans comprising such
Borrowing, is determined by reference to
the Adjusted LIBO Rate or the Alternate
Base Rate.
"UCC" shall mean the Uniform Commercial Code as in effect from time
to
time in the State of New York; provided,
however, that if by reason of any
provisions of law, the perfection or the
effect of perfection or non-perfection
of the security interests granted to the
Administrative Agent pursuant to the
applicable Loan Document is governed by the
Uniform Commercial Code as in effect
in a jurisdiction of the United States
other than New York, then "UCC" shall
mean the Uniform Commercial Code as in
effect from time to time in such other
jurisdiction for purposes of the provisions
of each Loan Document.
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<PAGE>
"Uncollateralized LC Exposure" shall mean, at any time, (i) the
aggregate LC Exposure at such time less
(ii) the aggregate LC Exposure for which
Cash Collateralization has been made in
accordance with Section 2.03(j) prior to
such time and which Cash Collateralization
is in effect at such time.
"Unused Total Tranche A Commitment" shall mean, at any time, (i)
the
Total Tranche A Commitment less (ii) the
Tranche A Total Commitment Usage.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as
a result of a complete or partial
withdrawal from such Multiemployer Plan, as
such term is defined in Part I of Subtitle
E of Title IV of ERISA.
"Wholly-Owned" shall mean, as to any Guarantor (or any other
Subsidiary of the Borrower), any other
Person all of the capital stock (or other
equivalent ownership interests) of which
(other than directors' qualifying
shares or nominal shares held by employees,
in each case as required by law) is
owned by such Guarantor (or such other
Subsidiary of the Borrower) directly and
or through other Wholly-Owned
Subsidiaries.
SECTION 1.02
TERMS GENERALLY. (a) The definitions of terms herein shall
apply equally to the singular and plural
forms of the terms defined. Whenever
the context may require, any pronoun shall
include the corresponding masculine,
feminine and neuter forms. The words
"include", "includes" and "including" shall
be deemed to be followed by the phrase
"without limitation". The word "will"
shall be construed to have the same meaning
and effect as the word "shall".
Unless the context requires otherwise (i)
any definition of or reference to any
agreement, instrument or other document
herein shall be construed as referring
to such agreement, instrument or other
document as from time to time amended,
supplemented or otherwise modified (subject
to any restrictions on such
amendments, supplements or modifications
set forth herein), (ii) any reference
herein to any Person shall be construed to
include such Person's successors and
assigns, (iii) the words "herein", "hereof'
and "hereunder", and words of
similar import, shall be construed to refer
to this Agreement in its entirety
and not to any particular provision hereof,
(iv) all references herein to
Articles, Sections, Exhibits and Schedules
shall be construed to refer to
Articles and Section of, and Exhibits and
Schedules to, this Agreement and (v)
the words "asset" and "property" shall
construed to have the same meaning and
effect and to refer to any and all tangible
and intangible assets and
properties, including cash, securities,
accounts and contract rights.
(b) When a
change in any amount, percentage, reserve, eligibility criteria
or other item in the definitions of the
terms "Borrowing Base", "Eligible
Inventory", "Eligible Receivables", "Fixed
Asset Component", "Inventory
Reserves" and "Rent Reserve" is to be
determined in the Administrative Agent's
"reasonable discretion", such change shall
become effective on the date that is
ten (10) days after delivery of a written
notice thereof to the Borrower (a
"Borrowing Base Change Notice"), or
immediately, without prior written notice,
during the continuance of an Event of
Default; provided that (regardless of
whether an Event of Default is continuing)
no change set forth in a Borrowing
Base Change Notice shall be required to be
reflected in the next Borrowing Base
Certificate delivered by the Borrower if
such Borrowing Base Change Notice is
delivered to the Borrower less than ten
(10) days prior to the date such
Borrowing Base Certificate is required to
be delivered hereunder.
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<PAGE>
SECTION 1.03
ACCOUNTING TERMS; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or
financial nature shall be construed in
accordance with GAAP, as in effect from
time to time; provided that, if the
Borrower notifies the Administrative Agent
that the Borrower requests an
amendment to any provision hereof to
eliminate the effect of any change
occurring after the Closing Date in GAAP or
in the application thereof on the
operation of such provision (or if the
Administrative Agent notifies the
Borrower that the Required Lenders request
an amendment to any provision hereof
for such purpose), regardless of whether
any such notice is given before or
after such change in GAAP or in the
application thereof, then such provision
shall be interpreted on the basis of GAAP
as in effect and applied immediately
before such change shall have become
effective until such notice shall been
withdrawn or such provision amended in
accordance herewith.
SECTION 2. AMOUNT AND TERMS OF CREDIT
SECTION 2.01
COMMITMENTS OF THE LENDERS.
(a) Tranche A Revolving Commitment. (i) Each Tranche A Lender
severally and not jointly with the other
Tranche A Lenders agrees, upon the
terms and subject to the conditions herein
set forth, to make revolving credit
loans (each a "Tranche A Loan" and
collectively, the "Tranche A Loans") to the
Borrower at any time and from time to time
during the Availability Period in an
aggregate principal amount not to exceed,
when added to its LC Exposure, the
Tranche A Commitment of such Lender, which
Tranche A Loans may be repaid and
reborrowed in accordance with the
provisions of this Agreement; provided that
(x) at no time shall the sum of the then
outstanding aggregate principal amount
of the Tranche A Loans plus the then LC
Exposure exceed the Total Tranche A
Commitment at such time and (y) at no time
shall the sum of the then outstanding
aggregate principal amount of the Tranche A
Loans plus the then LC Exposure plus
the then outstanding aggregate principal
amount of the Tranche B Loans exceed
the lesser of (i) the Total Commitment at
such time and (ii) (A) prior to the
entry of the Final Order, the amount
permitted by the Interim Order and (B) from
and after the entry of the Final Order, the
Borrowing Base.
(ii) Each Borrowing of a Tranche A Loan shall be made by the
Tranche A Lenders pro rata in
accordance with their respective Tranche A
Commitments;
provided, however, that the failure of any Tranche A Lender to
make any Tranche
A Loan shall not relieve the other Tranche A Lenders of
their
obligations to lend.
(b) Tranche B Term Loan Commitment. (i) Each Tranche B Lender,
severally and not jointly with the other
Tranche B Lenders agrees, upon the
satisfaction (or waiver) of the conditions
set forth in Section 4.03 and upon
the other terms and subject to the
conditions herein set forth, to make
available to the Borrower term loans in an
aggregate principal amount equal to
such Tranche B Lender's Tranche B
Commitment (all such loans, collectively, the
"Tranche B Loan") provided that at no time
shall the sum of the then outstanding
aggregate principal amount of the Tranche A
Loans plus the then LC Exposure plus
the then outstanding aggregate principal
amount of the Tranche B Loans exceed
the lesser of (i) the Total Commitment at
such time and (ii) (A) prior to the
entry of the Final Order, the amount
permitted by the Interim Order and (B) from
and after the entry of the Final Order, the
Borrowing Base. Once repaid, the
Tranche B
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<PAGE>
Loan may not be reborrowed and the Total
Tranche B Commitment shall be
automatically and permanently reduced by an
amount equal to the amount so
repaid.
(ii) The Tranche B Loan shall be made by the Tranche B Lenders
pro rata in
accordance with their respective Tranche B Commitment;
provided,
however, that the failure of any Tranche B Lender to make its
Tranche B Loan
shall not in itself relieve the other Tranche B Lenders of
their
obligations to lend.
(c) Other than as otherwise provided in Section 2.04(b), each
Borrowing shall be comprised entirely of
ABR Loans or Eurodollar Loans as the
Borrower may request in accordance
herewith. Each Lender at its option may make
any Eurodollar Loan by causing any domestic
or foreign branch or Affiliate of
such Lender to make such Eurodollar Loan;
provided that any exercise of such
option shall not affect the obligation of
the Borrower to repay such Loan in
accordance with the terms of this
Agreement.
(d) At the commencement of each Interest Period for any
Eurodollar
Borrowing, such Borrowing shall be in an
aggregate amount that is in an integral
multiple of $1,000,000 and not less than
$5,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be
in an aggregate amount that is an
integral multiple of $500,000 and not less
than $1,000,000 provided, that an ABR
Borrowing may be in an aggregate amount
that is equal to the entire Unused Total
Tranche A Commitment or that is required to
finance the reimbursement of an LC
Disbursement as contemplated by Section
2.03(e). Borrowings of more than one
Type may be outstanding at the same
time.
(e) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request,
or to elect to convert or continue,
any Borrowing if the Interest Period
requested with respect thereto would end
after the Maturity Date.
SECTION 2.02
RESERVED.
SECTION 2.03
LETTERS OF CREDIT. (a) General. Subject to the terms and
conditions set forth herein, the Borrower
may request the issuance of Letters of
Credit for its own account or the account
of any Subsidiary, in a form
reasonably acceptable to the Administrative
Agent and the Issuing Lender, and
the Issuing Lender hereby agrees to issue
such requested Letters of Credit, at
any time and from time to time during the
Availability Period. In the event of
any inconsistency between the terms and
conditions of this Agreement and the
terms and conditions of any form of letter
of credit application or other
agreement submitted by the Borrower to, or
entered into by the Borrower with,
the Issuing Lender relating to any Letter
of Credit, the terms and conditions of
this Agreement shall control. At no time
shall a Letter of Credit be issued if
(x) the sum of the then outstanding
aggregate principal amount of the Tranche A
Loans plus the LC Exposure (inclusive of
the amount of such proposed Letter of
Credit) would exceed the Total Tranche A
Commitment at such time or (y) the sum
of the then outstanding aggregate principal
amount of the Tranche A Loans plus
the then LC Exposure (inclusive of the
amount of such proposed Letter of Credit)
plus the then outstanding aggregate
principal amount of the Tranche B Loans
would exceed the lesser of (i) the Total
Commitment at such time and (ii) (A)
prior to the entry of the Final Order, the
amount permitted by the Interim Order
and (B) from and after the entry of the
Final Order, the Borrowing Base.
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<PAGE>
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a
Letter of Credit (or the amendment,
renewal or extension of an outstanding
Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by
electronic communication, if
arrangements for doing so have been
approved by the Issuing Lender) to the
Issuing Lender and the Administrative Agent
(reasonably in advance of the
requested date of issuance, amendment,
renewal or extension) a notice requesting
the issuance of a Letter of Credit, or
identifying the Letter of Credit to be
amended, renewed or extended, and
specifying the date of issuance, amendment,
renewal or extension (which shall be a
Business Day), the date on which such
Letter of Credit is to expire (which shall
comply with paragraph (c) of this
Section), the amount of such Letter of
Credit, the Person for whose account such
Letter of Credit shall be issued, the name
and address of the beneficiary
thereof and such other information as shall
be reasonably necessary to prepare,
amend, renew or extend such Letter of
Credit. If requested by the Issuing
Lender, the Borrower also shall submit a
letter of credit application on the
Issuing Lender's standard form in
connection with any request for a Letter of
Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if
(and upon issuance, amendment, renewal or
extension of each Letter of Credit the
Borrower shall be deemed to represent and
warrant that), after giving effect to
such issuance, amendment, renewal or
extension the LC Exposure shall not exceed
$325,000,000. No Issuing Lender shall
permit any such issuance, renewal,
extension or amendment resulting in an
increase in the amount of any Letter of
Credit to occur if such Issuing Lender has
received notice from the
Administrative Agent or the Required
Lenders that the conditions to such
issuance, renewal, extension or amendment
have not been met.
(c) Expiration Date. Each Letter of Credit shall expire at or prior
to
the close of business on the earlier of (i)
one year after the date of the
issuance of such Letter of Credit (or, in
the case of any renewal or extension
thereof, one year after such renewal or
extension) and (ii) 180 days after the
Maturity Date; provided that any Letter of
Credit with a one-year term may
provide for the renewal thereof for
additional one-year periods (which shall in
no event extend beyond the date referred to
in clause (ii) above).
(d) Participations. By the issuance (or, in the case of an
Existing
Letter of Credit, the deemed issuance) of a
Letter of Credit (or an amendment to
a Letter of Credit including any amendment
increasing the amount thereof) and
without any further action on the part of
the Issuing Lender or the Tranche A
Lenders, the Issuing Lender hereby grants
to each Tranche A Lender, and each
Tranche A Lender hereby acquires from the
Issuing Lender, a participation in
such Letter of Credit equal to such Tranche
A Lender's Tranche A Commitment
Percentage of the aggregate amount
available to be drawn under such Letter of
Credit. In consideration and in furtherance
of the foregoing, each Tranche A
Lender hereby absolutely and
unconditionally agrees to pay to the Administrative
Agent. for the account of the Issuing
Lender, such Tranche A Lender's Tranche A
Commitment Percentage of each LC
Disbursement made by the Issuing Lender and not
reimbursed by the Borrower on the date due
as provided in paragraph (e) of this
Section, or of any reimbursement payment
required to be refunded to the Borrower
for any reason. Each Tranche A Lender
acknowledges and agrees that its
obligation to acquire participations
pursuant to this paragraph in respect of
Letters of Credit is absolute and
unconditional and shall not be affected by any
circumstance whatsoever, including any
amendment, renewal or extension of any
Letter of Credit or the occurrence of an
Event of
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Default or reduction or termination of the
Tranche A Commitments, and that each
such payment shall be made without any
offset, abatement, withholding or
reduction whatsoever.
(e) Reimbursement. If the Issuing Lender shall make any LC
Disbursement in respect of a Letter of
Credit (including any Letter of Credit
issued for the account of any Subsidiary),
the Borrower shall reimburse such LC
Disbursement by paying to the
Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New
York City time, on the Business Day
immediately following the day that the
Borrower receives notice of such LC
Disbursement; provided, that, the Borrower
may, subject to the conditions to
borrowing set forth herein, request in
accordance with Section 2.04(a) that such
payment be financed with an ABR Borrowing
in an equivalent amount and, to the
extent so financed, the Borrower's
obligation to make such payment shall be
discharged and replaced by the resulting
ABR Borrowing. If the Borrower fails to
make such payment when due, the
Administrative Agent shall notify each Tranche A
Lender of the applicable LC Disbursement,
the payment then due from the Borrower
in respect thereof and such Tranche A
Lender's Tranche A Commitment Percentage
thereof. Promptly following receipt of such
notice, each Tranche A Lender shall
pay to the Administrative Agent its Tranche
A Commitment Percentage of the
payment then due to the Issuing Lender from
the Borrower, in the same manner as
provided in Section 2.05 with respect to
Tranche A Loans made by such Tranche A
Lender (and Section 2.05 shall apply,
mutatis mutandis, to the payment
obligations of the Tranche A Lenders), and
the Administrative Agent shall
promptly pay to the Issuing Lender the
amounts so received by it from the
Tranche A Lenders. Promptly following
receipt by the Administrative Agent of any
payment from the Borrower pursuant to this
paragraph, the Administrative Agent
shall distribute such payment to the
Issuing Lender or, to the extent that
Tranche A Lenders have made payments
pursuant to this paragraph to reimburse the
Issuing Lender, then to such Tranche A
Lenders and the Issuing Lender as their
interests may appear. Any payment made by a
Tranche A Lender pursuant to this
paragraph to reimburse the Issuing Lender
for any LC Disbursement (other than
the funding of ABR Loans as contemplated
above) shall not constitute a Tranche A
Loan and shall not relieve the Borrower of
its obligation to reimburse such LC
Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse
LC
Disbursements as provided in paragraph (e)
of this Section shall be absolute,
unconditional and irrevocable, and shall be
performed strictly in accordance
with the terms of this Agreement under any
and all circumstances whatsoever and
irrespective of (i) any lack of validity or
enforceability of any Letter of
Credit or this Agreement, or any term or
provision therein, (ii) any draft or
other document presented under a Letter of
Credit proving to be forged,
fraudulent or invalid in any respect or any
statement therein being untrue or
inaccurate in any respect, (iii) payment by
the Issuing Lender under a Letter of
Credit against presentation of a draft or
other document that does not comply
with the terms of such Letter of Credit, or
(iv) any other event or circumstance
whatsoever, whether or not similar to any
of the foregoing, that might, but for
the provisions of this Section, constitute
a legal or equitable discharge of, or
provide a right of setoff against, the
Borrower's obligations hereunder. Neither
the Administrative Agent, the Tranche A
Lenders nor the Issuing Lender, nor any
of their Related Parties, shall have any
liability or responsibility by reason
of or in connection with the issuance or
transfer of any Letter of Credit or any
payment or failure to make any payment
thereunder (irrespective of any of the
circumstances referred to in the preceding
sentence), or any error, omission,
interruption, loss or delay in transmission
or delivery of any draft, notice or
other communication under or relating to
any Letter of Credit
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<PAGE>
(including any document required to make a
drawing thereunder), any error in
interpretation of technical terms or any
consequence arising from causes beyond
the control of the Issuing Lender;
provided, that the foregoing shall not be
construed to excuse the Issuing Lender from
liability to the Borrower to the
extent of any direct damages (as opposed to
consequential damages, claims in
respect of which are hereby waived by the
Borrower to the extent permitted by
applicable law) suffered by the Borrower
that are caused by the Issuing Lender's
failure to exercise care when determining
whether drafts and other documents
presented under a Letter of Credit comply
with the terms thereof. The parties
hereto expressly agree that, in the absence
of gross negligence, bad faith or
willful misconduct on the part of the
Issuing Lender, its directors, officers,
employees or affiliates (as finally
determined by a court of competent
jurisdiction), the Issuing Lender shall be
deemed to have exercised care in each
such determination. In furtherance of the
foregoing and without limiting the
generality thereof, the parties agree that,
with respect to documents presented
which appear on their face to be in
substantial compliance with the terms of a
Letter of Credit, the Issuing Lender may,
in its reasonable discretion, either
accept and make payment upon such documents
without responsibility for further
investigation, regardless of any notice or
information to the contrary, or
refuse to accept and make payment upon such
documents if such documents are not
in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Lender shall, promptly
following its receipt thereof, examine all
documents purporting to represent a
demand for payment under a Letter of
Credit. The Issuing Lender shall promptly
notify the Administrative Agent and the
Borrower by telephone (confirmed by
telecopy) of such demand for payment and
whether the Issuing Lender has made or
will make an LC Disbursement thereunder;
provided, that any failure to give or
delay in giving such notice shall not
relieve the Borrower of its obligation to
reimburse the Issuing Lender and the
Tranche A Lenders with respect to any such
LC Disbursement.
(h)
Interim Interest. If the Issuing Lender shall make any LC
Disbursement, then, unless the Borrower
shall reimburse such LC Disbursement in
full on the date such LC Disbursement is
made, the unpaid amount thereof shall
bear interest, for each day from and
including the date such LC Disbursement is
made to but excluding the date that the
Borrower reimburses such LC
Disbursement, at the rate per annum then
applicable to ABR Loans; provided,
that, if the Borrower fails to reimburse
such LC Disbursement when due pursuant
to paragraph (e) of this Section, then
Section 2.09 shall apply. Interest
accrued pursuant to this paragraph shall be
for the account of the Issuing
Lender, except that interest accrued on and
after the date of payment by any
Tranche A Lender pursuant to paragraph (e)
of this Section to reimburse the
Issuing Lender shall be for the account of
such Tranche A Lender to the extent
of such payment.
(i) Replacement of the Issuing Lender. An Issuing Lender may be
replaced at any time by written agreement
among the Borrower, the Administrative
Agent, the replaced Issuing Lender and the
successor Issuing Lender. The
Administrative Agent shall notify the
Tranche A Lenders of any such replacement
of an Issuing Lender. At the time any such
replacement shall become effective,
the Borrower shall pay all unpaid fees
accrued for the account of the replaced
Issuing Lender pursuant to Section 2.22.
From and after the effective date of
any such replacement, (i) the successor
Issuing Lender shall have all the rights
and obligations of an Issuing Lender under
this Agreement with respect to
Letters of Credit to be
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issued thereafter and (ii) references
herein to the term "Issuing Lender" shall
be deemed to refer to such successor or to
any previous Issuing Lender, or to
such successor and all previous Issuing
Lenders, as the context shall require.
After the replacement of a Issuing Lender
hereunder, the replaced Issuing Lender
shall remain a party hereto and shall
continue to have all the rights and
obligations of an Issuing Lender under this
Agreement with respect to Letters of
Credit issued by it prior to such
replacement, but shall not be required to
issue additional Letters of Credit.
(j) Replacement of Letters of Credit; Cash Collateralization. Upon
or
prior to the occurrence of the Termination
Date the Borrower shall (i) cause all
Letters of Credit which expire after the
Termination Date to be returned to the
Issuing Lender undrawn and marked
"cancelled" or, to the extent the Borrower is
unable to return any of the Letters of
Credit, (ii) either (x) provide one or
more "back-to-back" letters of credit to
one or more Issuing Lenders in a form
reasonably satisfactory to each such
Issuing Lender that is a beneficiary of
such "back-to-back" letter of credit and
the Administrative Agent, issued by a
bank reasonably satisfactory to each such
Issuing Lender and the Administrative
Agent, and/or (y) deposit cash in the
Letter of Credit Account, the sum of (x)
and (y) of the foregoing sentence to be in
an aggregate amount equal to 105% of
Uncollateralized LC Exposure as collateral
security for the Borrower's
reimbursement obligations in connection
therewith, such cash to be remitted to
the Borrower upon and to the extent of the
expiration, cancellation or other
termination or satisfaction of such
reimbursement obligations ("Cash
Collateralization"). The Administrative
Agent shall have exclusive dominion and
control, including the exclusive right of
withdrawal, over such account. Other
than any interest earned on the investment
of such deposits, which investments
shall be made at the option and sole
reasonable discretion of the Administrative
Agent (in accordance with its usual and
customary practices for investments of
this type) and at the Borrower's risk and
reasonable expense, such deposits
shall not bear interest. Interest or
profits, if any, on such investments shall
accumulate in such account. Moneys in such
account shall be applied by the
Administrative Agent to reimburse the
Issuing Lender for LC Disbursements for
which it has not been reimbursed and, to
the extent not so applied, shall be
held for the satisfaction of the
reimbursement obligations of the Borrower for
the LC Exposure at such time and upon
expiration or cancellation (or backstop as
set forth in clause (x) above) of the
related Letter of Credit or other
termination or satisfaction of the
Borrower's reimbursement obligations with
respect thereto, such cash shall be
promptly remitted to the Borrower.
(k) Issuing Lender Agreements. Unless otherwise requested by
the
Administrative Agent, each Issuing Lender
shall report in writing to the
Administrative Agent (i) on the first
Business Day of each week, the daily
activity (set forth by day) in respect of
Letters of Credit during the
immediately preceding week, including all
issuances, extensions, amendments and
renewals, all expirations and cancellations
and all disbursements and
reimbursements, (ii) on or prior to each
Business Day on which such Issuing
Lender expects to issue, amend, renew or
extend any Letter of Credit, the date
of such issuance, amendment, renewal or
extension, and the aggregate face amount
of the Letters of Credit to be issued,
amended, renewed, or extended by it and
outstanding after giving effect to such
issuance, amendment, renewal or
extension occurred (and whether the amount
thereof changed), it being understood
that such Issuing Lender shall not permit
any issuance, renewal, extension or
amendment resulting in an increase in the
amount of any Letter of Credit to
occur if such Issuing Lender has received
notice from the Administrative Agent
or the Required Lenders that the conditions
to such issuance, extension or
amendment have not been met, (iii) on each
Business
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Day on which such Issuing Lender makes any
LC Disbursement, the date of such LC
Disbursement and the amount of such LC
Disbursement, (iv) on any Business Day on
which the Borrower fails to reimburse an LC
Disbursement required to be
reimbursed to such Issuing Lender on such
day, the date of such failure, the
Borrower and the amount of such LC
Disbursement and (v) on any other Business
Day, such other information as the
Administrative Agent shall reasonably
request.
SECTION 2.04
REQUESTS FOR BORROWINGS.
(a) Tranche A Loans. Unless otherwise agreed to by the
Administrative
Agent in connection with making the initial
Loans, to request a Borrowing of
Tranche A Loans, the Borrower shall notify
the Administrative Agent of such
request by telephone (a) in the case of a
Eurodollar Borrowing, not later than
1:00 p.m., New York City time, three (3)
Business Days before the date of the
proposed Borrowing and (b) in the case of
an ABR Borrowing, not later than 12:00
p.m., New York City time, on the date of
the proposed Borrowing; provided, that
any such notice of an ABR Borrowing to
finance the reimbursement of an LC
Disbursement as contemplated by Section
2.03(e) may be given not later than
11:00 a.m., New York City time, on the date
of the proposed Borrowing. Each such
telephonic Borrowing Request shall be
irrevocable and shall be confirmed
promptly by hand delivery, courier or
telecopy to the Administrative Agent of a
written Borrowing Request in a form
reasonably acceptable to the Administrative
Agent and signed by the Borrower. Each such
telephonic and written Borrowing
Request shall specify the following
information in compliance with Section
2.01(a):
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar
Borrowing; and
(iv) in the case of a Eurodollar Borrowing, the initial
Interest
Period to be
applicable thereto, which shall be a period contemplated by
the definition
of the term "Interest Period".
If no election as to the Type of Borrowing
is specified, then the requested
Borrowing shall be an ABR Borrowing. If no
Interest Period is specified with
respect to any requested Eurodollar
Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one
month's duration. Promptly following
receipt of a Borrowing Request in
accordance with this Section 2.04(a), the
Administrative Agent shall advise each
Tranche A Lender of the details thereof
and of the amount of such Tranche A
Lender's Tranche A Loan to be made as part
of the requested Borrowing.
(b) Tranche B Loan. To request the Borrowing of the Tranche B
Loan,
the Borrower shall notify the
Administrative Agent of such request by telephone
(a) in the case of a Eurodollar Borrowing,
not later than 1:00 p.m., New York
City time, three (3) Business Days before
the date of the proposed Borrowing and
(a) in the case of an ABR Borrowing, not
later than 12:00 noon, New York City
time on the date of the proposed Borrowing.
Such telephonic notice shall be
irrevocable and shall be confirmed promptly
by hand delivery, courier or
telecopy
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to the Administrative Agent of a written
Borrowing Request in a form reasonably
acceptable to the Administrative Agent and
signed by the Borrower. Such
telephone and written Borrowing Request
shall specify the following information
in compliance with Section 2.01:
(i) the aggregate amount of the requested Borrowing (which
shall
be the amount of
the Total Tranche B Commitment);
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) the portion of the Tranche B Loan that is to initially be
an ABR Borrowing
and that is to initially be a Eurodollar Borrowing; and
(iv) in the case of such portion of the Tranche B Loan that is
a
Eurodollar
Borrowing, the initial Interest Period applicable thereto,
which
shall be a
period contemplated by the definition of the term "Interest
Period".
If no election as to the Type of Borrowing
is specified, then the Tranche B Loan
shall initially be an ABR Borrowing. If no
Interest Period is specified with
respect to any portion of the Tranche B
Loan that is to initially be a
Eurodollar Borrowing, then the Borrower
shall be deemed to have selected an
Interest Period of one month's duration.
Promptly following receipt of the
Borrowing Request in accordance with this
Section 2.04(b), the Administrative
Agent shall advise each Tranche B Lender of
the details thereof and of the
amount of such Tranche B Lender's Loan to
be made as part of the requested
Borrowing (which shall be equal to such
Tranche B Lender's Tranche B
Commitment).
SECTION 2.05
FUNDING OF BORROWINGS. (a) Each Lender shall make each Loan to
be made by it hereunder on the proposed
date thereof by wire transfer of
immediately available funds by 2:00 p.m.,
New York City time, to the account of
the Administrative Agent most recently
designated by it for such purpose by
notice to the Lenders. The Administrative
Agent will make such Loans available
to the Borrower by promptly crediting the
amounts so received, in like funds, to
an account of the Borrower maintained with
the Administrative Agent and
designated by the Borrower in the
applicable Borrowing Request; provided that
ABR Loans made to finance the reimbursement
of an LC Disbursement as provided in
Section 2.03(e) shall be remitted by the
Administrative Agent to the Issuing
Lender.
(b) Unless the Administrative Agent shall have received notice from
a
Lender prior to the proposed date of any
Borrowing that such Lender will not
make available to the Administrative Agent
such Lender's share of such
Borrowing, the Administrative Agent may
assume that such Lender has made such
share available on such date in accordance
with paragraph (a) of this Section
and may, in reliance upon such assumption,
make available to the Borrower a
corresponding amount. In such event, if a
Lender has not in fact made its share
of the applicable Borrowing available to
the Administrative Agent, then the
applicable Lender and the Borrower
severally agree to pay to the Administrative
Agent forthwith on demand such
corresponding amount with interest thereon, for
each day from and including the date such
amount is made available to the
Borrower to but excluding the date of
payment to the Administrative Agent, at
(i) in the case of such Lender, the greater
of the Federal Funds Effective Rate
and a rate determined by the Administrative
Agent in accordance with banking
industry
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rules on interbank compensation or (ii) in
the case of the Borrower, the
interest rate applicable to ABR Loans. If
such Lender pays such amount to the
Administrative Agent, then such amount
shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.06
INTEREST ELECTIONS. (a) Each Borrowing of Tranche A Loans and
the Borrowing of the Tranche B Loan
initially shall be of the Type or, in the
case of the Tranche B Loan, Types specified
in the applicable Borrowing Request
and, in the case of a Eurodollar Borrowing,
shall have an initial Interest
Period as specified in such Borrowing
Request. Thereafter, the Borrower may
elect to convert such Borrowings to a
different Type or to continue such
Borrowing and, in the case of a Eurodollar
Borrowing, may elect Interest Periods
therefor, all as provided in this Section.
The Borrower may elect different
options with respect to different portions
of the affected Borrowing, in which
case each such portion shall be allocated
ratably among the Lenders holding the
Tranche A Loans or Tranche B Loan, as the
case may be, comprising such
Borrowing, and the Tranche A Loans and
Tranche B Loan
