exv10w1






Exhibit 10.1




EXECUTION COPY




$400,000,000




CREDIT AGREEMENT




among




LEAR CORPORATION




(as reorganized pursuant to and under the Plan of Reorganization)




The Several Lenders from Time to Time Parties Hereto,




BARCLAYS BANK PLC,




as Documentation Agent




and




JPMORGAN CHASE BANK, N.A.,




as Administrative Agent and Collateral Agent




Dated as of October 23, 2009




 





J. P. MORGAN SECURITIES INC.,




CITIGROUP GLOBAL MARKETS INC.,




and




UBS SECURITIES LLC




as Joint Lead Arrangers and Joint Bookrunners




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	SECTION 1. DEFINITIONS
	 	 	1	 
	1.1. Defined Terms
	 	 	1	 
	1.2. Other Definitional Provisions
	 	 	23	 
	 
	 	 	 	 
	SECTION 2. AMOUNT AND TERMS OF LOANS
	 	 	24	 
	2.1. Loans
	 	 	24	 
	2.2. Procedure for Borrowing
	 	 	24	 
	2.3. [Reserved]
	 	 	25	 
	2.4. Maturity and Repayment of Loans
	 	 	25	 
	2.5. [Reserved]
	 	 	26	 
	2.6. Fees
	 	 	26	 
	2.7. Termination or Reduction of Commitments
	 	 	27	 
	2.8. Optional Prepayments
	 	 	27	 
	2.9. Mandatory Prepayments
	 	 	27	 
	2.10. Conversion and Continuation Options
	 	 	28	 
	2.11. Limitations on Eurodollar Tranches
	 	 	29	 
	2.12. Interest Rates and Payment Dates
	 	 	29	 
	2.13. Computation of Interest and Fees
	 	 	29	 
	2.14. Inability to Determine Interest Rate
	 	 	30	 
	2.15. Pro Rata Treatment and Payments
	 	 	30	 
	2.16. Requirements of Law
	 	 	31	 
	2.17. Taxes
	 	 	32	 
	2.18. Indemnity
	 	 	34	 
	2.19. Change of Lending Office
	 	 	35	 
	2.20. Incremental Facility
	 	 	35	 
	2.21. Intercreditor Agreement
	 	 	36	 
	 
	 	 	 	 
	SECTION 3. [RESERVED]
	 	 	36	 
	 
	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	36	 
	4.1. No Change
	 	 	36	 
	4.2. Existence; Compliance with Law
	 	 	36	 
	4.3. Power; Authorization; Enforceable Obligations
	 	 	37	 
	4.4. No Legal Bar
	 	 	37	 
	4.5. Litigation
	 	 	37	 
	4.6. No Default
	 	 	37	 
	4.7. Ownership of Property; Liens
	 	 	37	 
	4.8. Intellectual Property
	 	 	37	 
	4.9. Taxes
	 	 	38	 
	4.10. Federal Regulations
	 	 	38	 
	4.11. Labor Matters
	 	 	38	 
	4.12. ERISA
	 	 	38	 
	4.13. Investment Company Act; Other Regulations
	 	 	38	 
	4.14. Subsidiaries
	 	 	38	 






i 









 






	 	 	 	 	 
	 	 	Page	 
	4.15. Use of Proceeds
	 	 	39	 
	4.16. Environmental Matters
	 	 	39	 
	4.17.
Accuracy of Information, etc.
	 	 	40	 
	4.18. Financial Statements
	 	 	40	 
	4.19. Insurance
	 	 	40	 
	4.20. Security Documents
	 	 	41	 
	4.21. Solvency
	 	 	41	 
	4.22. Regulation H
	 	 	41	 
	 
	 	 	 	 
	SECTION 5. CONDITIONS PRECEDENT
	 	 	42	 
	5.1. Closing Date
	 	 	42	 
	5.2. Delayed Draw Funding Date
	 	 	45	 
	 
	 	 	 	 
	SECTION 6. AFFIRMATIVE COVENANTS
	 	 	46	 
	6.1. Financial Statements
	 	 	46	 
	6.2. Certificates; Other Information
	 	 	46	 
	6.3. Payment of Obligations
	 	 	48	 
	6.4. Maintenance of Existence; Compliance
	 	 	48	 
	6.5. Maintenance of Property; Insurance
	 	 	48	 
	6.6. Inspection of Property; Books and Records; Discussions
	 	 	48	 
	6.7. Notices
	 	 	48	 
	6.8. Environmental Laws
	 	 	49	 
	6.9.
Additional Collateral, etc.
	 	 	49	 
	6.10. Post-Closing Matters
	 	 	51	 
	 
	 	 	 	 
	SECTION 7. NEGATIVE COVENANTS
	 	 	51	 
	7.1. Financial Covenants
	 	 	51	 
	7.2. Indebtedness
	 	 	53	 
	7.3. Liens
	 	 	55	 
	7.4. Fundamental Changes
	 	 	58	 
	7.5. Disposition of Property
	 	 	58	 
	7.6. Restricted Payments
	 	 	59	 
	7.7. Investments
	 	 	60	 
	7.8. Transactions with Affiliates
	 	 	61	 
	7.9. Swap Agreements
	 	 	61	 
	7.10. Changes in Fiscal Periods
	 	 	61	 
	7.11. Negative Pledge Clauses
	 	 	61	 
	7.12. Clauses Restricting Subsidiary Distributions
	 	 	62	 
	7.13. Lines of Business
	 	 	62	 
	7.14. Use of
Proceeds
	 	 	62	 
	7.15. Optional Payments and Modifications in respect of Permitted Second Lien Indebtedness
	 	 	63	 
	7.16. Sale and Leasebacks
	 	 	63	 
	 
	 	 	 	 
	SECTION 8. EVENTS OF DEFAULT
	 	 	63	 
	8.1. Events of Default
	 	 	63	 
	 
	 	 	 	 
	SECTION 9. THE AGENTS
	 	 	65	 
	9.1. Appointment
	 	 	65	 
	9.2. Delegation of Duties
	 	 	66	 
	9.3. Exculpatory Provisions
	 	 	66	 






ii 









 






	 	 	 	 	 
	 	 	Page	 
	9.4. Reliance by Agents
	 	 	66	 
	9.5. Notice of Default
	 	 	67	 
	9.6. Non-Reliance on Agents and Other Lenders
	 	 	67	 
	9.7. Indemnification
	 	 	67	 
	9.8. Agent in Its Individual Capacity
	 	 	68	 
	9.9. Successor Administrative Agent
	 	 	68	 
	9.10. Execution of Loan Documents
	 	 	68	 
	9.11. Collateral Agent
	 	 	68	 
	 
	 	 	 	 
	SECTION 10. MISCELLANEOUS
	 	 	69	 
	10.1. Amendments and Waivers
	 	 	69	 
	10.2. Notices
	 	 	71	 
	10.3. No Waiver; Cumulative Remedies
	 	 	72	 
	10.4. Survival of Representations and Warranties
	 	 	72	 
	10.5. Payment of Expenses and Taxes
	 	 	72	 
	10.6. Successors and Assigns; Participations and Assignments
	 	 	73	 
	10.7. Adjustments; Set-off
	 	 	76	 
	10.8. Counterparts
	 	 	77	 
	10.9. Severability
	 	 	77	 
	10.10. Integration
	 	 	77	 
	10.11. GOVERNING LAW
	 	 	77	 
	10.12. Submission To Jurisdiction; Waivers
	 	 	77	 
	10.13. Acknowledgements
	 	 	78	 
	10.14. Releases of Guarantees and Liens
	 	 	78	 
	10.15. Confidentiality
	 	 	78	 
	10.16. WAIVERS OF JURY TRIAL
	 	 	79	 
	10.17. USA Patriot Act
	 	 	79	 
	10.18. Effectiveness
	 	 	79	 






iii 









 






SCHEDULES:




	 	 	 
	1.1A

	 	Commitments
	1.1B

	 	Mortgaged Property
	4.3

	 	Consents, Authorizations, Filings and Notices
	4.14

	 	Subsidiaries
	4.20(a)

	 	UCC Filing Jurisdictions
	4.20(b)

	 	Mortgage Filing Jurisdictions
	6.10

	 	Post-Closing Matters
	7.2(d)

	 	Existing Indebtedness
	7.3(f)

	 	Existing Liens






EXHIBITS:




	 	 	 
	A

	 	Form of Intercompany Subordinated Note
	B

	 	Form of Assignment and Assumption
	C

	 	Form of Compliance Certificate
	D

	 	Form of Guarantee and Collateral Agreement
	E

	 	Form of Intercreditor Agreement
	F

	 	Form of Exemption Certificate
	G

	 	Form of Closing Certificate






iv 









 






          CREDIT AGREEMENT (this “Agreement”), dated as of October 23, 2009, among (i) LEAR
CORPORATION, a Delaware corporation, as reorganized pursuant to and under the Plan of
Reorganization (as defined below) (the “Borrower”), (ii) the several banks and other
financial institutions or entities from time to time parties to this Agreement (the “Lenders”),
(iii) BARCLAYS BANK PLC, as documentation agent, and (iv) JPMORGAN CHASE BANK, N.A., as
administrative agent (in such capacity, the “Administrative Agent”) and as collateral agent
for the Lenders (in such capacity the “Collateral Agent”).




INTRODUCTORY STATEMENT:




          WHEREAS, on July 7, 2009 (the “Petition Date”), the Borrower and certain of its
subsidiaries (the “Debtors”) filed voluntary petitions for relief under Chapter 11 of Title
11 of the United States Code (as amended, the “Bankruptcy Code”) in the United States
Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) and
continued in the possession of their property and in the management of their businesses pursuant to
Sections 1107 and 1108 of the Bankruptcy Code;




          WHEREAS, it is expected that on or about November 5, 2009, the Bankruptcy Court will enter the
Confirmation Order confirming the Debtors’ First Amended Joint Plan of Reorganization Under Chapter
11 of the Bankruptcy Code, dated September 18, 2009 (as in effect on the date of confirmation
thereof and as thereafter may be amended, the “Plan of Reorganization”); and




          WHEREAS, in connection with the confirmation and implementation of the Plan of Reorganization,
the reorganized Debtors have requested the Lenders to make loans available to the reorganized
Debtors to enable the reorganized Debtors to, among other things, consummate the transactions
contemplated by the Plan of Reorganization and to pay related fees and expenses, and the Lenders
have agreed, subject to the terms and conditions hereof, to enter into this Agreement.




          Accordingly, the parties hereto hereby agree as follows:




SECTION 1. DEFINITIONS




          1.1.   Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective
meanings set forth in this Section 1.1.




          “ABR”: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1% and (c) the Eurodollar Rate with a one-month
Interest Period commencing on such day plus 1.0%; provided, that in no event shall ABR be
less than 3.00% per annum. Any change in the ABR due to a change in the Prime Rate, the Federal
Funds Effective Rate or such Eurodollar Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate, the Federal Funds Effective Rate or such
Eurodollar Rate, respectively.




          “ABR Loans”: Loans the rate of interest applicable to which is based upon the ABR.




          “Acquisition”: any transaction or series of related transactions for the purpose of
or resulting, directly or indirectly, in (a) the acquisition of all or a substantial portion of the
assets of a Person, or of all or a substantial portion of any business or division of a Person, (b)
the acquisition of in excess of 50% of the capital stock, partnership interests, membership
interests or equity of any Person, or otherwise causing any Person to become a Subsidiary, or (c) a
merger or consolidation or any other combination with another Person (other than a Person that is
already a Subsidiary).




1 









 








          “Additional Lender”: as defined in Section 2.20.




          “Administrative Agent”: JPMorgan Chase Bank, N.A., together with its affiliates, as
the arranger of the Commitments and as the administrative agent for the Lenders under this
Agreement and the other Loan Documents, together with any of its successors.




          “Affiliate”: as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person. For purposes of this
definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10%
or more of the securities having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.




          “Agent Indemnitees”: as defined in Section 9.7.




          “Agents”: the collective reference to the Administrative Agent and the Collateral
Agent.




          “Agreement”: as defined in the preamble hereto.




          “Applicable Margin”: a percentage per annum equal to (a) 4.50% in the case of ABR
Loans and (b) 5.50% in the case of Eurodollar Loans; provided that if and as long as the
Consolidated Leverage Ratio as of the last day of the most recent fiscal quarter for which
financial statements have been delivered pursuant to Section 6.1 is equal to or less than 2.5 to
1.0, the percentage per annum shall be reduced to 4.25% in the case of ABR Loans and 5.25% in the
case of Eurodollar Loans (with any change in the Applicable Margin pursuant to this proviso to
become effective on the date that is three Business Days after the applicable financial statements
have been delivered to the Lenders and to remain effective until the next change shall become
effective pursuant to this proviso); provided further that at all times while an
Event of Default shall have occurred and be continuing, the percentage per annum shall not be
reduced pursuant to this proviso.




          “Approved Fund”: any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary
course and that is administered or managed by (a) a Lender, (b) an affiliate of a Lender or (c) an
entity or an affiliate of an entity that administers or manages a Lender.




          “Arrangers”: the collective reference to J.P. Morgan Securities Inc., Citigroup Global
Markets Inc. and UBS Securities LLC.




          “Asset Sale”: any Disposition of property or series of related Dispositions of
property excluding any such Disposition permitted by Section 7.5(a) through (l).




          “Assignee”: as defined in Section 10.6(b).




          “Assignment and Assumption”: an Assignment and Assumption, substantially in the form
of Exhibit B.




          “Bankruptcy Code”: as defined in the recitals hereto.




          “Bankruptcy Court”: as defined in the recitals hereto.




          “Benefited Lender”: as defined in Section 10.7(a).




2 









 








          “Board”: the Board of Governors of the Federal Reserve System of the United States
(or any successor).




          “Borrower”: as defined in the preamble hereto.




          “Business”: as defined in Section 4.16(b).




          “Business Day”: a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close, provided, that with
respect to notices and determinations in connection with, and payments of principal and interest
on, Eurodollar Loans, such day is also a day for trading by and between banks in Dollar deposits in
the interbank eurodollar market.




          “Canadian Court”: the Ontario Superior Court of Justice, Commercial List.




          “Canadian Debtors”: the Borrower’s Canadian Subsidiaries that are Debtors.




          “Capital Expenditures”: for any period, with respect to any Person, the aggregate of
all expenditures by such Person and its Subsidiaries for the acquisition or leasing (pursuant to a
capital lease) of fixed or capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period) that should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries, but excluding (i) such expenditures
that are made in connection with the purchase, replacement, substitution or restoration of assets
to the extent of (A) insurance proceeds (or other similar recoveries) paid (or reasonably expected
to be paid) on account of the loss of or damage to assets or (b) cash awards of compensation
arising from (or reasonably expected to arise from) the taking by eminent domain or condemnation of
assets, (ii) such expenditures that are made with all or any portion of a Reinvestment Deferred
Amount, (iii) capitalized interest, (iv) such expenditures for which such Person is or reasonably
expects to be reimbursed in cash by a third party (other than any Group Member), (v) such
expenditures that are made with the proceeds of an Excluded Issuance and (vi) such expenditures
that are made to fund the purchase price for assets acquired in Permitted Acquisitions.




          “Capital Lease Obligations”: as to any Person, the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes
of this Agreement, the amount of such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with GAAP.




          “Capital Stock”: any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants, rights or options to purchase any
of the foregoing.




          “Cases”: the cases of the Debtors before the Bankruptcy Court.




          “Cash Equivalents”: (a) securities issued or unconditionally guaranteed or insured by
the United States Government, the Canadian Government, Japan or any member of the European Union or
any other government approved by the Administrative Agent (which approval shall not be unreasonably
withheld), (b) securities issued or unconditionally guaranteed or insured by any state of the
United States of America or province of Canada or any agency or instrumentality thereof having
maturities of not more than twelve months from the date of acquisition and having one of the two
highest ratings obtainable from either S&P or Moody’s, (c) time deposits, certificates of deposit
and bankers’ acceptances having



3 









 






maturities of not more than twelve months from the date of acquisition, in each case with any
Lender (or any affiliate of any thereof) or with any commercial bank organized under the laws of
the United States of America or any state thereof or the District of Columbia, Japan, Canada or any
member of the European Union or any U.S. branch of a foreign bank having at the date of acquisition
capital and surplus of not less than $100,000,000, (d) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clauses (a), (b) and (c)
entered into with any bank meeting the qualifications specified in clause (c) above, (e) commercial
paper issued by the parent corporation of any Lender and commercial paper rated, at the time of
acquisition, at least “A-1” or the equivalent thereof by S&P or “P-1” or the equivalent thereof by
Moody’s and in either case maturing within twelve months after the date of acquisition, (e)
deposits maintained with money market funds having total assets in excess of $300,000,000, (f)
demand deposit accounts maintained in the ordinary course of business with banks or trust
companies, (g) temporary deposits, of amounts received in the ordinary course of business pending
disbursement of such amounts, in demand deposit accounts in banks outside the United States, (h)
deposits in mutual funds which invest substantially all of their assets in preferred equities
issued by U.S. corporations rated at least “AA” (or the equivalent thereof) by S&P;
provided, that notwithstanding the foregoing, Cash Equivalents shall, in any event, include
all cash and cash equivalents as set forth in the Borrower’s balance sheet prepared in accordance
with GAAP, and (i) other investments requested by the Borrower and approved by the Administrative
Agent.




          “CCAA Cases”: the cases commenced by the Canadian Debtors in the Canadian Court under
Section 18.6 of the Companies’ Creditors Arrangement Act.




          “Change of Control”: after the occurrence of the Effective Date, (a) the acquisition
of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof), of Capital Stock representing more than 35%
of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of
the Borrower; or (b) occupation of a majority of the seats (other than vacant seats) on the board
of directors of the Borrower by Persons who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed by directors so nominated.




          “Chinese Acceptance Notes”: acceptance notes issued by Chinese banks in the ordinary
course of business for the account of any direct or indirect Chinese Subsidiary of the Borrower or
customers thereof to effect the current payment of goods and services in accordance with customary
trade terms in China.




          “Closing Date”: the date on which the conditions precedent set forth in Section 5.1
shall have been satisfied or waived and the funding of the Closing Date Loans occurs.




          “Closing Date Commitment”: as to any Lender, the obligation of such Lender to make a
Closing Date Loan to the Borrower in an aggregate principal amount not to exceed the amount set
forth under the heading “Closing Date Commitment” opposite such Lender’s name on Schedule 1.1A.
The original aggregate amount of the Closing Date Commitments is $200,000,000.




          “Closing Date Loan”: as defined in Section 2.1.




          “Closing Date Percentage”: as to any Lender at any time, the percentage which such
Lender’s Closing Date Commitment then constitutes of the aggregate Closing Date Commitments (or, at
any time after the Closing Date, the percentage which the aggregate principal amount of such
Lender’s Closing Date Loans then outstanding constitutes of the aggregate principal amount of the
Closing Date Loans then outstanding).




4 









 








          “Code”: the Internal Revenue Code of 1986, as amended from time to time.




          “Collateral”: all property of the Loan Parties (other than Excluded Property), now
owned or hereafter acquired upon which a Lien is purported to be created by any Security Document.




          “Collateral Agent”: as defined in the preamble hereto.




          “Commitment”: as to any Lender, the sum of the Closing Date Commitment and the
Delayed Draw Commitment of such Lender.




          “Commonly Controlled Entity”: an entity, whether or not incorporated, that is under
common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group
that includes the Borrower and that is treated as a single employer under Section 414 of the Code.




          “Compliance Certificate”: a certificate of the Borrower duly executed by a
Responsible Officer, on behalf of the Borrower, substantially in the form of Exhibit C.




          “Conduit Lender”: any special purpose corporation organized and administered by any
Lender for the purpose of making Loans otherwise required to be made by such Lender and designated
by such Lender in a written instrument; provided, that the designation by any Lender of a
Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan
under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the
designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to
deliver all consents and waivers required or requested under this Agreement with respect to its
Conduit Lender, and provided, further, that no Conduit Lender shall (a) be entitled
to receive any greater amount pursuant to Section 2.16, 2.17, 2.18 or 10.5 than the designating
Lender would have been entitled to receive in respect of the extensions of credit made by such
Conduit Lender or (b) be deemed to have any Commitment.




          “Confirmation Order”: as defined in Section 5(h).




          “Consolidated Assets”: at a particular date, all amounts which would be included
under total assets on a consolidated balance sheet of the Borrower and its Subsidiaries as at such
date, determined in accordance with GAAP.




          “Consolidated Current Assets”: at any date, all amounts (other than cash and Cash
Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current
assets” (or any like caption) on a consolidated balance sheet of Borrower and its Subsidiaries at
such date.




          “Consolidated Current Liabilities”: at any date, all amounts that would, in
conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like
caption) on a consolidated balance sheet of the Borrower and its Subsidiaries at such date, but
excluding the current portion of any Funded Debt of the Borrower and its Subsidiaries.




          “Consolidated EBITDA”: for any period (and calculated without duplication),
Consolidated Net Income for such period excluding (a) any extraordinary and non-recurring non-cash
expenses, losses, income or gains as determined in accordance with GAAP, (b) charges, premiums,
expenses and any gains associated with the discharge of Indebtedness, (c) charges relating to FAS
106, (d) any non-cash income included, and any non-cash deductions made, in determining
Consolidated Net Income for such period (other than any deductions which represent the accrual of
or a reserve for the payment of cash charges in any future period), provided that cash
payments made in any subsequent period in respect of any item for which any such non-cash deduction
was excluded in a prior period shall



5 









 






be deemed to reduce Consolidated Net Income by such amount in such subsequent period, (e)
stock compensation expense and non-cash equity linked expense, (f) deferred financing fees (and any
write-offs thereof), (g) write-offs of goodwill, (h) an aggregate amount of up to (i) $200,000,000
for fiscal year 2009, and (ii) $150,000,000 for each fiscal year thereafter (provided that
up to $25,000,000 of such amount may be carried forward to the following fiscal year or carried
back to the preceding fiscal year) in respect of restructuring, restructuring-related or other
similar charges, (i) fees, costs, charges, commissions and expenses or other charges incurred
during such period in connection with this Agreement, the DIP Credit Agreement, the Cases, the Plan
of Reorganization and the transactions contemplated by the foregoing, including the write-off of
receivables of Chrysler, GM and their affiliates as a result of their respective bankruptcy
filings, the termination or settlement of executory contracts, professional and accounting costs
fees and expenses, management incentive, employee retention or similar plans (in each case to the
extent such plan is approved by the Bankruptcy Court to the extent required), litigation costs and
settlements, asset write-downs, income and gains recorded in connection with the corporate
reorganization effected in connection with the winding up the Debtors prior to emergence, (j)
foreign exchange gains and losses and (k) any state or local taxes, plus, to the extent deducted in
determining Consolidated Net Income, the sum of (A) Consolidated Interest Expense, (B) any expenses
for taxes, (C) depreciation and amortization expense, (D) minority interests in income (or losses)
of Subsidiaries and (E) net equity earnings (and losses) in Affiliates (excluding Subsidiaries).
For purposes of calculating the ratios set forth in Section 7.1(a) and (b), Consolidated EBITDA for
any fiscal period shall in any event include the Consolidated EBITDA for such fiscal period of any
entity acquired by the Borrower or any of its Subsidiaries in a Permitted Acquisition during such
period. Notwithstanding the foregoing, for purposes of calculating Consolidated EBITDA for each of
the four fiscal quarter periods ending December 31, 2009, March 31, 2010 and June 30, 2010,
Consolidated EBITDA for such four fiscal quarter periods shall equal Consolidated EBITDA for the
period commencing on October 1, 2009 and ending on December 31, 2009, April 3, 2010 and July 3,
2010, as applicable, multiplied by 4, 2 and 4/3, respectively.




          “Consolidated Interest Expense”: for any period, the amount which would, in
conformity with GAAP, be set forth opposite the caption “interest expense” (or any like caption) on
a consolidated income statement of the Borrower and its Subsidiaries for such period and, to the
extent not otherwise included in “interest expense”, any other discounts and expenses comparable to
or in the nature of interest under any Receivable Financing Transaction; provided, that
Consolidated Interest Expense for any period shall (a) exclude (i) fees payable in respect of such
period under Section 2.6, (ii) any amortization or write-off of deferred financing fees during such
period, (iii) premiums paid in connection with the discharge of Indebtedness, (iv) any non-cash
expense, and (v) interest payments made by the Debtors during the pendency of the Cases on
pre-petition Indebtedness, and (b) include any interest income during such period.




          “Consolidated Leverage Ratio”: as at the last day of any period of four consecutive
fiscal quarters, the ratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA
for such period.




          “Consolidated Net Income”: for any period, the consolidated net income (or deficit)
of the Borrower and its Subsidiaries for such period (taken as a cumulative whole), determined in
accordance with GAAP; provided that any provision for post-retirement medical benefits, to
the extent such provision calculated under FAS 106 exceeds actual cash outlays calculated on the
“pay as you go” basis, shall not to be taken into account.




          “Consolidated Revenues”: for any fiscal period, the consolidated revenues of the
Borrower and its Subsidiaries for such period, determined in accordance with GAAP.




6 









 








          “Consolidated Total Tangible Assets”: as of any date of determination thereof, the
aggregate consolidated book value of the assets of the Borrower and its Subsidiaries (other than
patents, patent rights, trademarks, trade names, franchises, copyrights, licenses, permits,
goodwill and other similar intangible assets properly classified as such in accordance with GAAP)
after all appropriate adjustments (including, without limitation, reserves for doubtful
receivables, obsolescence, depreciation and amortization), all as set forth in the most recent
consolidated balance sheet of the Borrower delivered pursuant to Section 6.1 on such date of
determination, determined on a consolidated basis in accordance with GAAP.




          “Consolidated Total Debt”: at any date, the aggregate principal amount of all
Indebtedness of the Borrower and its Subsidiaries at such date, determined on a consolidated basis,
that would be required to be shown as debt on a balance sheet of the Borrower prepared in
accordance with GAAP, but excluding Chinese Acceptance Notes and Earn-outs; provided that
solely with respect to the definition of “ECF Percentage”, Consolidated Total Debt shall be
determined as set forth above, but net of cash and Cash Equivalents of the Borrower and its
Subsidiaries in excess of $650,000,000 on the date of determination.




          “Consolidated Working Capital”: at any date, the excess of Consolidated Current
Assets on such date over Consolidated Current Liabilities on such date.




          “Consummation Date”: the date of substantial consummation (as defined in Section 1101
of the Bankruptcy Code) of the Plan of Reorganization.




          “Contractual Obligation”: as to any Person, any provision of any security issued by
such Person or of any agreement, instrument or other undertaking to which such Person is a party or
by which it or any of its property is bound.




          “Debtors”: as defined in the preamble.




          “Default”: any of the events specified in Section 8.1, whether or not any requirement
for the giving of notice, the lapse of time, or both, has been satisfied.




          “Defaulting Lender” any Lender that (a) has failed to fund any portion of the Loans
required to be funded by it hereunder within one (1) Business Day of the date required to be funded
by it hereunder, unless such failure is the subject of a good faith dispute or subsequently cured
(in which case such Lender shall cease to be a Defaulting Lender as of the date of such cure), (b)
has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one (1) Business Day of the date when due, unless such
failure is the subject of a good faith dispute or subsequently cured (in which case such Lender
shall cease to be a Defaulting Lender as of the date of such cure), or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.




          “Delayed Draw Availability Period”: the period from but excluding the Closing Date to
but excluding the date that is 35 days after the Closing Date.




          “Delayed Draw Commitment”: as to any Lender, the obligation, if any, of such Lender to
make a Delayed Draw Loan in a principal amount not to exceed the amount set forth under the heading
“Delayed Draw Commitment” opposite such Lenders name on Schedule 1.1A. The original aggregate
amount of the Delayed Draw Commitments is $200,000,000.




          “Delayed Draw Commitment Fee”: as defined in Section 2.6(c).




7 









 








          “Delayed Draw Loan”: as defined in Section 2.1.




          “Delayed Draw Funding Date”: the date on which the conditions precedent set forth in
Section 5.2 shall have been satisfied or waived and the funding of the Delayed Draw Loans occurs.




          “Delayed Draw Percentage”: as to any Lender at any time, the percentage which such
Lender’s Delayed Draw Commitment then constitutes of the aggregate Delayed Draw Commitments (or, at
any time after the Delayed Draw Funding Date, the percentage which the aggregate principal amount
of such Lender’s Delayed Draw Loans then outstanding constitutes of the aggregate principal amount
of the Delayed Draw Loans then outstanding).




          “DIP Agent”: JPMorgan Chase Bank, N.A. in its capacity as administrative agent for the
lenders under the DIP Credit Agreement.




          “DIP Credit Agreement”: the Credit and Guarantee Agreement, dated as of July 6, 2009
among the Borrower and certain of its Subsidiaries, the lenders from time to time party thereto,
the DIP Agent and the other parties thereto, as amended, supplemented or otherwise modified prior
to the date hereof.




          “DIP Facility”: the term loan facility made available under the DIP Credit Agreement.




          “Disclosure Statement”: the disclosure statement in respect of the Plan of
Reorganization, in form and substance reasonably satisfactory to the Administrative Agent,
distributed to certain holders of claims (as defined in Section 101(5) of the Bankruptcy Code)
against the Debtors.




          “Disposition”: with respect to any property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof, excluding any such transaction that
yields Net Cash Proceeds to any Group Member (valued at the initial principal amount thereof in the
case of non-cash proceeds consisting of notes or other debt securities and valued at fair market
value in the case of other non-cash proceeds) of $1,000,000 or less. The terms “Dispose”
and “Disposed of” shall have correlative meanings.




          “Dollars” and “$”: dollars in lawful currency of the United States.




          “Domestic Subsidiary”: any Subsidiary of the Borrower organized under the laws of any
jurisdiction within the United States.




          “Earn-outs”: with respect to any Person, obligations of such Person arising from a
Permitted Acquisition which are payable to the seller based on the achievement of specified
financial results over time. The amount of any Earn-outs at any time for the purpose of this
Agreement shall be the amount earned and due to be paid at such time.




          “ECF Percentage”: for any fiscal year (or, in the case of the first period, the
portion of the fiscal year following the first anniversary of the Closing Date), (a) 50% if the
Consolidated Leverage Ratio exceeds 1.75 to 1.00 as of the last day of such fiscal year, (b) 25% if
the Consolidated Leverage Ratio is equal to or less than 1.75 to 1.00 but exceeds 0.50 to 1.00 as
of the last day of such fiscal year and (c) 0% if the Consolidated Leverage Ratio is equal to or
less than 0.50 to 1.00 as of the last day of such fiscal year.




          “Effective Date”: the effective date of the Plan of Reorganization.




8 









 








          “Eligible Assignee”: (a) a commercial bank, financial institution, financial company,
fund or insurance company that is engaged in making, purchasing, holding or investing in bank loans
and similar extensions of credit in the ordinary course or (b) any other Person that is not a
competitor of the Borrower or any of its Subsidiaries or an affiliate of any such competitor.




          “Environmental Laws”: any and all foreign, Federal, state, local or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental
Authority or other Requirements of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the environment, as now
or may at any time hereafter be in effect.




          “Equity Sweep Percentage”: at any time, (a) 50% if the Consolidated Leverage Ratio
exceeds 1.75 to 1.00 as of the last day of the most recent period of four consecutive fiscal
quarters of the Borrower, (b) 25% if the Consolidated Leverage Ratio is equal to or less than 1.75
to 1.00 but exceeds 1.00 to 1.00 as of the last day of the most recent period of four consecutive
fiscal quarters of the Borrower and (c) 0% if the Consolidated Leverage Ratio is equal to or less
than 1.00 to 1.00 as of the last day of the most recent period of four consecutive fiscal quarters
of the Borrower.




          “ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to
time.




          “ERISA Affiliate”: any trade or business (whether or not incorporated) that, together
with any Loan Party, 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”: (a) any Reportable Event; (b) the existence with respect to any Plan of
a non-exempt Prohibited Transaction; (c) any failure by any Single Employer Plan to satisfy the
minimum funding standards (within the meaning of Sections 412 or 430 of the Code or Section 302 of
ERISA) applicable to such Single Employer Plan, whether or not waived; (d) a determination that any
Single Employer Plan is in “at risk” status (within the meaning of Section 430 of the Code or Title
IV of ERISA); (e) the incurrence by any Loan Party or any of its ERISA Affiliates of any liability
under Title IV of ERISA with respect to the termination of any Single Employer Plan, including but
not limited to the imposition of any Lien in favor of the PBGC or any Single Employer Plan; (f) the
incurrence by any Loan Party 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 any
Loan Party or any of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan
from a Loan Party 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, in
Reorganization, or in endangered or critical status (within the meaning of Section 432 of the Code
or Section 305 or Title IV of ERISA.




          “Eurocurrency Reserve Requirements”: for any day as applied to a Eurodollar Loan, the
aggregate (without duplication) of the maximum rates (expressed as a decimal) of reserve
requirements in effect on such day (including basic, supplemental, marginal and emergency reserves)
under any regulations of the Board or other Governmental Authority having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred
to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.




          “Eurodollar Base Rate”: with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, the rate per annum determined on the basis of the rate for
deposits in Dollars for a period equal to such Interest Period commencing on the first day of such
Interest Period appearing on



9 









 






Reuters Screen LIBOR01 page as of 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period. In the event that such rate does not appear on Reuters Screen
LIBOR01 page (or otherwise on such screen), the “Eurodollar Base Rate” shall be determined
by reference to such other comparable publicly available service for displaying eurodollar rates as
may be reasonably selected by the Administrative Agent or, in the absence of such availability, by
reference to the rate at which the Administrative Agent is offered Dollar deposits at or about
11:00 A.M., New York City time, two Business Days prior to the beginning of such Interest Period in
the interbank eurodollar market where its eurodollar and foreign currency and exchange operations
are then being conducted for delivery on the first day of such Interest Period for the number of
days comprised therein.




          “Eurodollar Loans”: Loans the rate of interest applicable to which is based upon the
Eurodollar Rate.




          “Eurodollar Rate”: with respect to each day during each Interest Period pertaining to
a Eurodollar Loan, a rate per annum determined for such day in accordance with the following
formula (rounded upward to the nearest 1/100th of 1%):




	 	 	 	 	 
	 

	 	Eurodollar Base Rate
 

1.00 - Eurocurrency Reserve Requirements
	 	 





; provided, however, notwithstanding the foregoing, the Eurodollar Rate shall
be the greater of (x) such rate determined pursuant to the foregoing formula and (y) 2.00% per
annum.




          “Eurodollar Tranche”: the collective reference to Eurodollar Loans the then current
Interest Periods with respect to all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same day).




          “Event of Default”: any of the events specified in Section 8.1, provided that
any requirement for the giving of notice, the lapse of time, or both, has been satisfied.




          “Excess Cash Flow”: for any fiscal year of the Borrower (or shorter period beginning
on the first anniversary of the Closing Date through the end of such fiscal year), the excess, if
any, of (a) the sum, without duplication, of (i) Consolidated Net Income for such fiscal year (or
period), (ii) the amount of all non-cash charges (including depreciation and amortization) deducted
in arriving at such Consolidated Net Income, (iii) decreases in Consolidated Working Capital for
such fiscal year (or period), and (iv) the aggregate net amount of non-cash loss on the Disposition
of property by the Borrower and its Subsidiaries during such fiscal year (or period) (other than
sales of inventory in the ordinary course of business), to the extent deducted in arriving at such
Consolidated Net Income over (b) the sum, without duplication, of (i) the amount of all
non-cash credits included in arriving at such Consolidated Net Income, (ii) the aggregate amount
actually paid by the Borrower and its Subsidiaries in cash during such fiscal year (or period) on
account of Capital Expenditures (excluding the principal amount of Indebtedness incurred in
connection with such expenditures and any such expenditures financed with the proceeds of any
Reinvestment Deferred Amount), (iii) the aggregate amount of all optional prepayments of the Loans
during such fiscal year (or period) (other than in respect of any revolving credit facility to the
extent there is not an equivalent permanent reduction in commitments thereunder), (iv) the
aggregate amount of all regularly scheduled principal payments of Indebtedness (including the
Loans) of the Borrower and its Subsidiaries made in cash during such fiscal year (or period) (other
than in respect of any revolving credit facility to the extent there is not an equivalent permanent
reduction in commitments thereunder), (v) increases in Consolidated Working Capital for such fiscal
year (or period), (vi) the aggregate net amount of non-cash gain on the Disposition of property by
the Borrower and its



10 









 






Subsidiaries during such fiscal year (or period) (other than sales of inventory in the
ordinary course of business), (vii) minority interests in income and earnings of Affiliates for
which the Borrower has not received cash distributions thereof, and (viii) all cash consideration
paid with respect to Permitted Acquisitions (except to the extent funded with the proceeds of
Excluded Issuances or Indebtedness), including, without limitation, payments in respect of
“earnouts” and similar payment obligations and seller notes, to the extent included in arriving at
such Consolidated Net Income.




          “Excess Cash Flow Application Date”: as defined in Section 2.9(c).




          “Excluded Issuance”: any Capital Stock of the Borrower issued (a) to directors,
employees or consultants of the Borrower or its Subsidiaries pursuant to compensation plans or
arrangements approved by the Board, (b) upon the conversion or exercise of any Capital Stock of the
Borrower outstanding on the date hereof or issued hereafter as part of an Excluded Issuance, (c) to
a Group Member in accordance with Section 7.7, (d) to fund Capital Expenditures permitted under
Section 7.1(c) and (e) to fund the payment of any consideration for a Permitted Acquisition in
accordance with Section 7.7.




          “Excluded Property”: (i) property owned by any Excluded Subsidiary or Foreign
Subsidiary; (ii) receivables and customary related rights and assets subject to a Receivables
Financing Transaction; (iii) any property to the extent that a grant of a security interest in such
property pursuant to the Security Documents is prohibited by any Requirements of Law of a
Governmental Authority, requires a consent not obtained of any Governmental Authority pursuant to
such Requirement of Law or is prohibited by, or constitutes a breach or default under or results in
the termination of or requires any consent not obtained under, any contract, license, agreement,
instrument or other document evidencing or giving rise to such property or, in the case of any
Investment, Pledged Stock or Pledged Note (as such terms are defined in the Security Documents),
any applicable shareholder or similar agreement, except to the extent that such Requirement of Law
or the term in such contract, license, agreement, instrument or other document or shareholder or
similar agreement providing for such prohibition, breach, default or termination or requiring such
consent is ineffective under applicable law; (iv) Vehicles (as defined in the Guarantee and
Collateral Agreement) and title documents therefor; (v) any Capital Stock held by a Loan Party in
(A) a joint venture, so long as (x) not more than 50% of the aggregate Capital Stock of such joint
venture is held by the Loan Parties in the aggregate and (y) such Capital Stock is not subject to a
Lien in favor of any other Person and (B) any direct holding company of one or more joint ventures
under clause (A) of this clause (v), provided that such holding company does not engage in
any business or own any assets other than owning the Capital Stock of such joint ventures; (vi) any
property with respect to which the Administrative Agent determines that the cost or burden of
subjecting such property to a Lien under the Security Documents is disproportionate to the value of
the collateral security afforded thereby; (vii) real property owned by the Loan Parties having a
fair market value estimated in good faith by the Borrower of less than $5,000,000, provided
that the aggregate fair market value of all such owned real property located in the U.S. (as
estimated in good faith by the Borrower) that is Excluded Property shall not exceed $25,000,000 as
of the Closing Date and $25,000,000 as of the date the financial statements are delivered for the
end of any fiscal year of the Borrower; (viii) interests in real property leased, subleased or
licensed to any of the Loan Parties; and (ix) thirty-five percent (35%) of the total outstanding
voting Capital Stock of each new and existing Foreign Subsidiary.




          “Excluded Subsidiary”: each Subsidiary of a Foreign Subsidiary and, with respect to
any requirement to enter into any Security Document, any Special Purpose Subsidiary.




          “Facility”: the term loan facility made available to the Borrower pursuant to this
Agreement.




11 









 








          “Federal Funds Effective Rate”: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.




          “Foreign Subsidiary”: any Subsidiary of the Borrower that is not a Domestic
Subsidiary.




          “Funded Debt”: as to any Person, all Indebtedness of such Person that matures more
than one year from the date of its creation or matures within one year from such date but is
renewable or extendible, at the option of such Person, to a date more than one year from such date
or arises under a revolving credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year from such date, including all current
maturities and current sinking fund payments in respect of such Indebtedness whether or not
required to be paid within one year from the date of its creation or maturity and, in the case of
the Borrower, Indebtedness in respect of the Loans.




          “Funding Office”: the office of the Administrative Agent specified in Section 10.2 or
such other office as may be specified from time to time by the Administrative Agent as its funding
office by written notice to the Borrower and the Lenders.




          “GAAP”: generally accepted accounting principles in the United States as in effect
from time to time, except that for purposes of Section 7.1, GAAP shall be determined on the basis
of such principles in effect on the date hereof and consistent with those used in the preparation
of the most recent audited financial statements delivered pursuant to Section 6.1(a) of the DIP
Credit Agreement.




          “Governmental Authority”: any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
functions of or pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).




          “Group Members”: the collective reference to the Borrower and its Subsidiaries.




          “Guarantee and Collateral Agreement”: the Guarantee and Collateral Agreement to be
executed and delivered by the Borrower and each Guarantor, substantially in the form of Exhibit D.




          “Guarantee Obligation”: as to any Person (the “guaranteeing person”), any
obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing
Person that guarantees or in effect guarantees, or which is given to induce the creation of a
separate obligation by another Person (including any bank under any letter of credit) that
guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the
“primary obligations”) of any other third Person (the “primary obligor”) in any
manner, whether directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of



12 









 






instruments for deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such
primary obligation and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation shall be such
guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by
the Borrower in good faith.




          “Guarantor”: each Domestic Subsidiary of the Borrower other than (a) Excluded
Subsidiaries, (b) Immaterial Subsidiaries (provided that all Immaterial Subsidiaries
excluded under this clause (b) and Section 6.9(c)(B) shall not at any time contribute in the
aggregate more than 5% of Consolidated Assets or more than 5% of Consolidated Revenues), (c) joint
ventures in which not more than 85% of the aggregate Capital Stock of such joint venture is held by
the Loan Parties in the aggregate and (d) any direct holding
company of one or more joint ventures under
clause (c) hereof, provided that such holding company does not engage in any business or
own any assets other than owning the Capital Stock of such joint
ventures.




          “Immaterial Subsidiary”: at any time, any Subsidiary of the Borrower which, based on
the financial statements most recently delivered pursuant to Section 6.1(a) or (b), constituted
less than 1% of Consolidated Assets or, for the twelve month period ended on the date of such
financial statements, represented less than 1% of Consolidated Revenues, in each case determined
using the equity method of accounting in accordance with GAAP.




          “Incremental Amendment”: as defined in Section 2.20.




          “Incremental Facility”: as defined in Section 2.20.




          “Incremental Facility Closing Date”: as defined in Section 2.20.




          “Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services, which would, in accordance with GAAP be shown on the liability side
of the balance sheet, (c) all obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all indebtedness created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all Capital Lease Obligations of such
Person, (f) all obligations of such Person, contingent or otherwise, as an account party or
applicant under or in respect of acceptances, letters of credit, surety bonds or similar
arrangements, (g) all Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (f) above, (h) all obligations of the kind referred to in
clauses (a) through (g) above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts
and contract rights) owned by such Person, whether or not such Person has assumed or become liable
for the payment of such obligation, provided, if such Person has not assumed or become
liable for such obligation, the amount of such Indebtedness shall be deemed to be the lesser of the
fair market value of such property or the obligation being secured thereby and (i) for the purposes
of Section 8.1(e) only, all obligations of such Person in respect of Swap Agreements, but excluding
(i) trade and other accounts payables incurred in the ordinary course of such Person’s business,
(ii) accrued expenses and deferred compensation arrangements in the ordinary course, and (iii)
advance payments in the ordinary course. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person



13 









 






is a general partner) to the extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness expressly provide that such Person is not liable therefor.




          “Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan is
insolvent within the meaning of Section 4245 of ERISA.




          “Insolvent”: pertaining to a condition of Insolvency.




          “Intellectual Property”: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including copyrights, copyright licenses, inventions, designs, patents,
patent licenses, trademarks, tradenames, domain names and other source indicators, trademark
licenses, technology, trade secrets, 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.




          “Intercompany Subordinated Note”: a promissory note, substantially in the form of
Exhibit A or otherwise in form and substance reasonably acceptable to the Administrative Agent.




          “Intercreditor Agreement”: the Intercreditor Agreement to be executed and delivered
by the Administrative Agent, the Collateral Agent, the agent or trustee for the Second Lien Term
Loans and the Loan Parties, substantially in the form of Exhibit E, as amended, modified and
supplemented from time to time.




          “Interest Coverage Ratio”: for any period, the ratio of (a) Consolidated EBITDA for
such period to (b) Consolidated Interest Expense for such period.




          “Interest Payment Date”: (a) as to any Eurodollar Loan, the last day of each Interest
Period applicable to such Loan and the Maturity Date; provided that if any Interest Period
for a Eurodollar Loan exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates; (b) as to any ABR Loan,
the last day of each calendar quarter and the Maturity Date, (c) as to any Loan, the date of any
repayment or prepayment made in respect thereof, and (d) as to any ABR Loan if an Event of Default
is in existence, the last day of each calendar month.




          “Interest Period”: as to any Eurodollar Loan, (a) initially, the period commencing on
the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with respect thereto; and (b)
thereafter, each period commencing on the last day of the next preceding Interest Period applicable
to such Eurodollar Loan and ending one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not later than 11:00 A.M., New York City
time, on the date that is three Business Days prior to the last day of the then current Interest
Period with respect thereto; provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:





     (i) if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding Business Day;



14 









 






     (ii) the Borrower may not select an Interest Period that would extend beyond the
Maturity Date; and




     (iii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of a calendar month.



          “Investments”: an advance, loan, extension of credit (by way of guaranty or
otherwise, but excluding trade debt incurred in the ordinary course of business) or capital
contribution to, or purchase any Capital Stock, bonds, notes, loans, debentures or other debt
securities of, or any assets constituting a business unit of, or any other similar investment in,
any Person. The amount of any Investment by any Person on any date of determination shall be the
acquisition price of the gross assets acquired (including any liability assumed by such Person to
the extent such liability would be reflected on a balance sheet prepared in accordance with GAAP)
plus all additional capital contributions or purchase price paid in respect thereof,
without any adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment minus the amount of all cash returns of
principal or capital thereon, cash dividends thereon and other cash returns on investment thereon
or liabilities expressly assumed by another Person (other than a Group Member) in connection with
the sale of such Investment. Whenever the term “outstanding” is used in this Agreement with
reference to an Investment, it shall take into account the matters referred to in the preceding
sentence.




          “LC Basket Limit”: $225,000,000 less the aggregate amount of any Incremental Facility
added to this Agreement pursuant to Section 2.20 that is a revolving facility to the extent such
revolving facility may be used for letters of credit.




          “Lenders”: as defined in the preamble; provided, that unless the context
otherwise requires, each reference herein to the Lenders shall be deemed to include any Conduit
Lender.




          “Lien”: any mortgage, pledge, hypothecation, deposit arrangement, encumbrance, lien
(statutory or other), charge or other security interest or any priority or other security agreement
of any kind or nature whatsoever (including any conditional sale or other title retention agreement
and any capital lease having substantially the same economic effect as any of the foregoing).




          “Liquidity”: on any date of determination, the sum, without duplication, of (i) the
cash and Cash Equivalents which are not subject to any Liens (other than (a) Liens in favor of the
Collateral Agent on behalf of the Secured Parties, (b) Liens permitted by Section 7.3(c)(ii) and
(c) inchoate Liens arising by operating of law which are not the subject of enforcement actions)
held by the Borrower and its Subsidiaries on such date and (ii) the aggregate availability under
any loan agreements or other lines of credit of the Borrower and its Subsidiaries on such date.




          “Loan Documents”: this Agreement, the Security Documents, the Intercreditor
Agreement, the Notes and any amendment, waiver, supplement or other modification to any of the
foregoing.




          “Loan Parties”: the Borrower and the Guarantors.




          “Loans”: collectively, the Closing Date Loans and the Delayed Draw Loans.




          “Material Adverse Effect”: a material adverse effect on (a) the business, property,
operations or financial condition of the Borrower and its Subsidiaries, taken as a whole or (b) the
validity



15 









 






or enforceability of this Agreement or any of the other Loan Documents or the rights or
remedies of the Administrative Agent, the Collateral Agent or the Lenders hereunder or thereunder.




          “Materials of Environmental Concern”: any gasoline or petroleum (including crude oil
or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or
wastes, defined or regulated as such in or under any Environmental Law, including asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.




          “Maturity Date”: the fifth anniversary of the Closing Date (the “Scheduled
Maturity Date”); provided that if the Second Lien Term Loans have a scheduled final
maturity date prior to the Scheduled Maturity Date and remain outstanding on the date that is three
months prior to such scheduled final maturity date (the “Accelerated Maturity Date”), the
Maturity Date shall be the Accelerated Maturity Date.




          “Moody’s”: Moody’s Investors Service, Inc.




          “Mortgaged Property”: as defined in Section 4.20(b).




          “Mortgages”: collectively, any deeds of trust, trust deeds, hypothecs and mortgages
creating and evidencing a Lien on any real property made by the Loan Parties in favor of or for the
benefit of the Collateral Agent on behalf of the Secured Parties in form and substance reasonably
satisfactory to the Administrative Agent, in each case securing the Obligations.




          “Multiemployer Plan”: a Plan that is a multiemployer plan as defined in Section
4001(a)(3) of ERISA.




          “Net Cash Proceeds”: (a) in connection with any Asset Sale or any Recovery Event, the
proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by
way of deferred payment of principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received), net of (i) attorneys’ fees,
accountants’ fees, investment banking fees, amounts required to be applied to the repayment of
Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of
such Asset Sale or Recovery Event (other than any Lien created pursuant to a Security Document) and
other third-party fees and expenses actually incurred in connection therewith and (ii) Taxes and
Other Taxes paid or reasonably estimated to be payable as a result of any Asset Sale or Recovery
Event (after taking into account any available tax credits or deductions and any tax sharing
arrangements), (b) in connection with any issuance or sale of Capital Stock or any incurrence of
Indebtedness, the cash proceeds received from such issuance or incurrence, net of attorneys’ fees,
investment banking fees, accountants’ fees, underwriting discounts and commissions and other
customary fees and expenses actually incurred in connection therewith, and (c) in connection with
any Receivable Financing Transaction, the initial cash purchase price received by, or Indebtedness
incurred by, any Loan Party thereunder (and any increase in the aggregate funded amount thereof)
net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in connection therewith.




          “Non-Excluded Taxes”: as defined in Section 2.17(a).




          “Non-U.S. Lender”: as defined in Section 2.17(d).




          “Notes”: the collective reference to any promissory note evidencing Loans.





16 











 





          “Obligations”: the unpaid principal of and interest on (including interest accruing
after the maturity of the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like proceeding relating to a
Loan Party, whether or not a claim for post-filing or post-petition interest is allowed in such
proceeding) the Loans and all other obligations and liabilities of the Borrower and each Guarantor
(or, in the case of Specified Letters of Credit, each Group Member on whose account such Specified
Letter of Credit is issued and guarantee obligations of other Group Members in respect thereof) to
the Administrative Agent or to any Lender (or, in the case of Specified Letters of Credit,
Specified Swap Agreements and Specified Cash Management Agreements, any affiliate of any Lender),
whether direct or indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other
Loan Document, any Specified Letter of Credit (and related letter of credit applications), any
Specified Swap Agreement, any Specified Cash Management Agreement or any other document made,
delivered or given in connection herewith or therewith, whether on account of principal, interest,
reimbursement obligations, Guarantee Obligations, fees, indemnities, costs, expenses (including all
reasonable fees, charges and disbursements of counsel to the Administrative Agent or to any Lender
that are required to be paid by the Borrower pursuant hereto) or otherwise.




          “Other Taxes”: any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or from
the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document, including any interest, additions to tax or penalties applicable thereto,
whether disputed or not.




          “Outstanding Amount”: with respect to the Loans at any time, the aggregate principal
amount thereof, after giving effect to any borrowings and prepayments or repayments of Loans
occurring on such date.




          “Outstanding Percentage”: as to any Lender at any time, the percentage which such
Lender’s Commitment then constitutes of the aggregate Commitments (or, (i) from the Closing Date to
the Delayed Draw Funding Date, if any, the percentage, expressed as a fraction, the numerator of
which is the sum of the amount of such Lender’s Closing Date Loan and the amount of its Delayed
Draw Commitment, the denominator of which is the sum of the amount of aggregate amount of Closing
Date Loans then outstanding and the amount of aggregate Delayed Draw Commitments and (ii) from the
earlier of the Delayed Draw Funding Date, if any, or the expiration or termination of the Delayed
Draw Availability Period, the percentage which is the aggregate principal amount of such Lender’s
Loans then outstanding constitutes of the aggregate principal amount of the Loans then
outstanding.)




          “Participant”: as defined in Section 10.6(c).




          “Participation Register”: as defined in Section 10.6(c).




          “PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
of Title IV of ERISA (or any successor).




          “Permitted Acquisition”: any Acquisition by (i) the Borrower or any of its
Subsidiaries of all or substantially all of the assets of a Person, or of all or substantially all
of any business or division of a Person or (ii) the Borrower or any of its Subsidiaries of no less
than 100% of the capital stock, partnership interests, membership interests or equity of any
Person, in each case to the extent that:





     (a) each of the conditions precedent set forth in Annex III shall have been
satisfied in a manner reasonably satisfactory to the Administrative Agent;



17 









 






     (b) such Acquisition shall not be hostile and shall have been approved by the board of
directors (or other similar body) and/or the stockholders or other equityholders of the
Target; and




     (c) no Default or Event of Default is in existence or would occur after giving effect
to such Acquisition.



          “Permitted Refinancing Indebtedness”: as defined in Section 7.2(s).




          “Permitted Second Lien Indebtedness”: (a) Indebtedness of the Borrower in respect of
the Second Lien Credit Agreement and (b) any other Indebtedness of the Borrower, provided
that (i) such other Indebtedness and any related Guarantee Obligations shall not be secured by any
Lien by which the Indebtedness in respect of the Second Lien Credit Agreement is not secured and
any such Liens shall be subordinated to the Liens securing the Facility in a manner not less
favorable to the Lenders than the subordination of the Liens securing the Indebtedness in respect
of the Second Lien Credit Agreement to the Liens securing the Facility, (ii) the Net Cash Proceeds
resulting from such other Indebtedness shall be used to refinance the Indebtedness in respect of
the Second Lien Credit Agreement, (iii) such other Indebtedness shall not have any principal
payments due prior to the date that is 91 days after the Maturity Date or, if later, the final
maturity date of any Incremental Facility, whether at maturity or otherwise, except upon the
occurrence of a change of control or similar event (including asset sales), in each case so long as
the provisions relating to change of control or similar events (including asset sales) included in
the governing instrument of such Indebtedness provide that the provisions of this Agreement must be
satisfied prior to the satisfaction of such provisions of such Indebtedness, (iv) if any covenants,
events of default, guarantees or other terms of such other Indebtedness (other than interest rate,
prepayment premiums, fees and other pricing terms) are more restrictive to the Borrower and its
Subsidiaries than those of the Facility, such covenant, event of default, guarantee or other term
as set forth from time to time on the documentation governing such other Indebtedness shall be
deemed to be incorporated in this Agreement for the benefit of the Lenders (and the Borrower agrees
to notify the Administrative Agent of the effectiveness, or amendment from time to time, of the
terms of any documentation governing such other Indebtedness and to provide a copy of such
documentation), (v) no Subsidiary of the Borrower that is not a Guarantor of the Facility is an
obligor in respect of such other Indebtedness and (vi) such other Indebtedness bears interest at a
rate, which rate shall be, in the good faith judgment of the Borrower’s board of directors,
consistent with the market at the time of issuance for similar Indebtedness for comparable issuers
or borrowers.




          “Person”: an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.




          “Petition Date”: as defined in the recitals hereto.




          “Plan”: at a particular time, any employee pension benefit plan (as defined in
Section 3(2) of ERISA) in respect of which a Loan Party or any ERISA Affiliate is (or, if such plan
were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.




          “Plan of Reorganization” as defined in the recitals hereto.




          “Prime Rate”: the rate of interest per annum publicly announced from time to time by
JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City (the
Prime




18 









 







Rate not being intended to be the lowest rate of interest charged by JPMorgan Chase Bank, N.A.
in connection with extensions of credit to debtors).




          “Prohibited Transaction”: as defined in Section 406 of ERISA or Section 4975 of the
Code.




          “Pro Forma Balance Sheet”: as defined in Section 4.18.




          “Projections”: as defined in Section 6.2(c).




          “Properties”: as defined in Section 4.16(a).




          “Receivable Financing Transaction”: any transaction or series of transactions
involving a sale for cash of accounts receivable, without recourse based upon the collectibility of
the receivables sold, by the Borrower or any of its Subsidiaries to a Special Purpose Subsidiary
and a subsequent sale or pledge of such accounts receivable (or an interest therein) by such
Special Purpose Subsidiary, in each case without any guarantee by the Borrower or any of its
Subsidiaries (other than the Special Purpose Subsidiary).




          “Recovery Event”: any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of any Group Member in an
amount in excess of $2,500,000.




          “Refinanced Term Loans”: as defined in Section 10.1(d).




          “Register”: as defined in Section 10.6(b).




          “Regulation U”: Regulation U of the Board as in effect from time to time.




          “Reinvestment Deferred Amount”: with respect to any Reinvestment Event, the aggregate
Net Cash Proceeds received by any Group Member in connection therewith that are not applied to
prepay the Loans pursuant to Section 2.9(b) as a result of the delivery of a Reinvestment Notice.




          “Reinvestment Event”: any Asset Sale or Recovery Event in respect of which the
Borrower has delivered a Reinvestment Notice.




          “Reinvestment Notice”: a written notice executed by a Responsible Officer stating
that no Event of Default has occurred and is continuing and that the Borrower (directly or
indirectly through a Subsidiary) intends and expects to use all or a specified portion of the Net
Cash Proceeds of an Asset Sale or a Recovery Event in the business.




          “Reinvestment Prepayment Amount”: with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant
Reinvestment Prepayment Date to acquire or repair assets useful in the businesses of the Borrower
and its Subsidiaries.




          “Reinvestment Prepayment Date”: with respect to any Reinvestment Event, the earlier
of (a) the date occurring 360 days after such Reinvestment Event (provided that if on such
360th day, the applicable Reinvestment Prepayment Amount is contractually committed to
acquire or repair assets useful in the businesses of the Borrower and its Subsidiaries, the
Reinvestment Prepayment Date with respect to such amount shall be the earlier of (i) the date
occurring 450 days after such Reinvestment Event, (ii) the




19 









 







date of termination of such commitment, and (iii) if such amount is not so expended, the first
Business Day following the date such amount was contractually committed to be expended) and (b) the
date on which the Borrower shall have determined not to, or shall have otherwise ceased to, acquire
or repair assets useful in the businesses of the Borrower and its Subsidiaries with all or any
portion of the relevant Reinvestment Deferred Amount.




          “Related Parties”: as defined in Section 9.3.




          “Replacement Revolving Facility”: as defined in Section 10.1(d).




          “Replacement Term Loans”: as defined in Section 10.1(d).




          “Reorganization”: with respect to any Multiemployer Plan, the condition that such
plan is in reorganization within the meaning of Section 4241 of ERISA.




          “Reorganized Lear Corporation”: Lear Corporation, as reorganized pursuant to and
under the Plan of Reorganization.




          “Reportable Event”: any of the events set forth in Section 4043(c) of ERISA or the
regulations thereunder, other than those events as to which the thirty day notice period is waived
under PBGC regulations.




          “Required Lenders”: at any time, Lenders holding more than 50% of (a) until the
Closing Date, the Commitments then in effect, (b) after the Closing Date and until the Delayed Draw
Funding Date or termination of the Delayed Draw Commitments, the aggregate of the Outstanding
Amount and Delayed Draw Commitments then in effect and (c) thereafter, the Outstanding Amount;
provided that the portion of the Outstanding Amount and Commitments held or deemed held by
any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.




          “Requirement of Law”: as to any Person, the Certificate of Incorporation and By-Laws
or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.




          “Responsible Officer”: with respect to any Loan Party, the chief executive officer,
the president, the chief financial officer, any vice president, the treasurer or the assistant
treasurer of such Loan Party.




          “Restricted Payments”: as defined in Section 7.6.




          “S&P”: Standard & Poor’s Ratings Services.




          “SEC”: the Securities and Exchange Commission, any successor thereto and any
analogous Governmental Authority.




          “Second Lien Agent”: JPMorgan Chase Bank, N.A., as the administrative agent for the
lenders under the Second Lien Credit Agreement, together with any of its successors.




          “Second Lien Credit Agreement”: the Second Lien Credit Agreement to be executed on or
about the Effective Date, among Reorganized Lear Corporation, the several lenders from time to time




20 









 







parties thereto and the Second Lien Agent, as amended, supplemented, restated or otherwise
modified from time to time to the extent permitted by Section 7.15.




          “Second Lien Term Loans”: the term loans outstanding under the Second Lien Credit
Agreement.




          “Second Lien Term Loan Documents”: the “Loan Documents” as defined in the Second Lien
Credit Agreement.




          “Secured Parties”: collectively, the Administrative Agent, the Lenders, each provider
under a Specified Cash Management Agreement, each issuer of a Specified Letter of Credit, each
counterparty to a Specified Swap Agreement, the Persons entitled to indemnification under the Loan
Documents and each co-agent or sub-agent appointed by the Administrative Agent from time to time
pursuant to Section 9.2.




          “Security Documents”: the collective reference to the Guarantee and Collateral
Agreement, the Mortgages and all other security documents hereafter delivered to the Administrative
Agent and the Collateral Agent granting a Lien on any property of any Person to secure the
obligations and liabilities of any Loan Party under any Loan Document.




          “Seller Debt”: unsecured debt owing to the seller in a Permitted Acquisition.




          “Series A Preferred Stock”: as defined in the Plan of Reorganization.




          “Single Employer Plan”: any Plan that is covered by Title IV of ERISA, but that is
not a Multiemployer Plan.




          “Solvent”: when used with respect to any Person, means that, as of any date of
determination, (a) the amount of the “present fair saleable value” of the assets of such Person
will, as of such date, exceed the amount of all “liabilities of such Person, contingent or
otherwise”, as of such date, as such quoted terms are determined in accordance with applicable
federal and state laws governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater than the amount that
will be required to pay the liability of such Person on its debts as such debts become absolute and
matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital
with which to conduct its business, and (d) such Person will be able to pay its debts as they
mature. For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim”
means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach
gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.




          “Special Purpose Subsidiary”: any Wholly Owned Subsidiary of the Borrower created by
the Borrower for the sole purpose of facilitating a Receivable Financing Transaction;
provided, that such Special Purpose Subsidiary shall cease to be a Special Purpose
Subsidiary if at any time (a) such Special Purpose Subsidiary engages in any business other than
Receivable Financing Transactions and activities directly related thereto or (b) the Borrower or
any of its Subsidiaries (other than a Special Purpose Subsidiary) or any of their respective assets
incur any liability, direct or indirect, contingent or otherwise, in respect of any obligation of a
Special Purpose Subsidiary whether arising under or in connection with any Receivable Financing
Transaction or otherwise (other than Standard Securitization Undertakings); provided
further, however, that if the law of a jurisdiction in which the Borrower proposes to
create a




21 









 







Special Purpose Subsidiary does not provide for the creation of a bankruptcy remote entity
that is acceptable to the Borrower or requires the formation of one or more additional entities
(whether or not Subsidiaries of the Borrower), such other type of entity may, upon the request of
the Borrower and with the consent of the Administrative Agent (such consent not to be unreasonably
withheld) serve as a “Special Purpose Subsidiary.”




          “Specified Cash Management Agreement”: any agreement providing for treasury,
depositary or cash management services, including in connection with any automated clearing house
transactions, controlled disbursements, return items, overdrafts, interstate depository network
services or any similar transactions between the Borrower or any Guarantor (or guaranteed by the
Borrower or any Guarantor) and any Lender (or any affiliate thereof) at the time such obligations
were created or any institution that was (or whose affiliate was) a Lender in the primary
syndication of the Facility.




          “Specified Jurisdiction”: any country, state or other jurisdictional subdivision
outside North America or Europe.




          “Specified Letters of Credit”: any letter of credit (a) issued for the account of any
Group Member by any Lender at the time such agreement is entered into or any affiliate thereof at
the time such letter of credit is issued and (b) that has been designated by the relevant Lender
and such Group Member, by written notice to the Administrative Agent prior to the issuance thereof,
as a Specified Letter of Credit and with respect to which the Administrative Agent has confirmed to
the relevant Lender sufficient availability pursuant to Section 7.2(i). Such designation shall not
create in favor of such Lender or affiliate of a Lender any rights in connection with the
management or release of any Collateral or of the obligations of any Loan Party hereunder or under
any Collateral Document.




          “Specified Swap Agreement”: any Swap Agreement (a) entered into by the Borrower or
any Guarantor and any Person that is a Lender or an affiliate of a Lender at the time such Swap
Agreement is entered into and (b) that has been designated by the relevant Lender and such Group
Member, by written notice to the Administrative Agent prior to the effectiveness thereof, as a
Specified Swap Agreement. Such designation shall not create in favor of such Lender or affiliate
of a Lender any rights in connection with the management or release of any Collateral or of the
obligations of any Loan Party hereunder or under any Collateral Document. For purposes hereof a
Specified Swap Agreement shall include any trade executed pursuant to a master agreement which is a
Specified Swap Agreement.




          “Standard Securitization Undertakings”: representations, warranties, covenants and
indemnities entered into by the Borrower or any Subsidiary thereof in connection with a Receivable
Financing Transaction which are reasonably customary in an accounts receivable financing
transaction.




          “Subsidiary”: as to any Person, a corporation, partnership, limited liability company
or other entity of which shares of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such
Person (exclusive of any Affiliate in which such Person has a minority ownership interest). Unless
otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower.




          “Swap Agreement”: any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing




22 









 







indices or measures of economic, financial or pricing risk or value or any similar transaction
or any combination of these transactions.




          “Target”: the Person, or business or substantially all of the assets of a Person or a
division of a Person intended to be acquired in a Permitted Acquisition.




          “Taxes”: all present or future taxes, duties, levies, imposts, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto, whether disputed or not.




          “3% Subsidiary”: at any time, any Subsidiary of the Borrower which, based on the
financial statements most recently delivered pursuant to subsection 6.1(a) or (b), constituted at
least 3% of Consolidated Assets or for the twelve month period ended on the date of such financial
statements represented at least 3% of Consolidated Revenues, in each case determined using the
equity method of accounting in accordance with GAAP.




          “Ticking Fee”: as defined in Section 2.6(a).




          “Title Insurance Company”: as defined in Section 5(t)(ii).




          “Transferee”: any Assignee or Participant.




          “Type”: as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.




          “UCC”: the Uniform Commercial Code, as in effect from time to time in the State of
New York or any other applicable jurisdiction.




          “Upfront Fees”: as defined in Section 2.6(b).




          “United States”: the United States of America.




          “Wholly Owned Subsidiary”: as to any Person, any other Person all of the Capital
Stock of which (other than directors’ qualifying shares required by law) is owned by such Person
directly and/or through other Wholly Owned Subsidiaries.




          “Withdrawal Liability”: liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Title IV of ERISA.




          1.2. Other Definitional Provisions. (a) Unless otherwise specified therein, all terms
defined in this Agreement shall have the defined meanings when used in the other Loan Documents or
any certificate or other document made or delivered pursuant hereto or thereto.




          (b) As used herein and in the other Loan Documents, and any certificate or other document made
or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not
defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP, 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 date
hereof 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




23 









 







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 have been withdrawn by the Borrower or the Administrative Agent, as the case may be, or such
provision amended in accordance herewith, (ii) the words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”, (iii) the word “incur” shall be
construed to mean incur, create, issue, assume or become liable in respect of or suffer to exist
(and the words “incurred” and “incurrence” shall have correlative meanings), (iv) the words “asset”
and “property” shall be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, Capital Stock, securities, revenues,
accounts, leasehold interests and contract rights, and (v) references to agreements or other
Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or
Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time.




          (c) The words “hereof”, “herein” and “hereunder” and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.




          (d) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.




          (e) When determining whether a Default or Event of Default pursuant to Section 7.1 shall be in
existence after giving pro forma effect to a certain event, the covenant levels to be used in
making such determination shall be those in effect as of the last day of the most recent fiscal
quarter of the Borrower for which financial reports are required to have been delivered pursuant to
Section 6.1.




SECTION 2. AMOUNT AND TERMS OF LOANS




          2.1. Loans. Subject to the terms and conditions set forth herein, each Lender listed on
Schedule 1.1A hereto has severally agreed to make (a) term loans (the “Closing Date Loans”)
on the Closing Date in the full amount of such Lender’s Closing Date Commitment to the Borrower and
(b) term loans (the “Delayed Draw Loans”; together with the Closing Date Loans, the
“Loans”) on one occasion during the Delayed Draw Availability Period in the full amount of
such Lender’s Delayed Draw Commitment to the Borrower. The Loans may from time to time be
Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Administrative
Agent in accordance with Sections 2.2 and 2.10.




          2.2. Procedure for Borrowing. The Borrower shall give the Administrative Agent irrevocable
notice (which notice must be received by the Administrative Agent prior to 12 noon, New York City
time, one Business Day prior to the anticipated Closing Date or Delayed Draw Funding Date, as
applicable) requesting that the Lenders make the Loans on the Closing Date or Delayed Draw Funding
Date, as applicable, and specifying the amount of such Loans, and in the case of Eurodollar Loans,
the amount and length of the Interest Period therefor. Upon receipt of such notice the
Administrative Agent shall promptly notify each applicable Lender thereof. Not later than 12:00
Noon, New York City time, on the Closing Date or Delayed Draw Funding Date, as applicable, each
Lender shall make available to the Administrative Agent at the Funding Office an amount in
immediately available funds equal to the Closing Date Loan or the Delayed Draw Loan, as applicable,
to be made by such Lender. The Administrative Agent shall credit the account of the Borrower on
the books of such office of the Administrative Agent with the aggregate of the amounts made
available to the Administrative Agent by the Lenders in immediately available funds.




24 









 








          2.3. [Reserved].




          2.4. Maturity and Repayment of Loans.




          (a) The Closing Date Loan of each Lender shall mature in nineteen consecutive quarterly
installments commencing on the last day of the first full calendar quarter following the Closing
Date, each of which shall be in an amount equal to the percentage set forth below opposite such
date multiplied by the amount of such Lender’s Closing Date Loan funded on the Closing Date (it
being understood that if the Maturity Date is the Accelerated Maturity Date, there shall be fewer
quarterly installments and the final installment shall be increased accordingly):




	 	 	 	 	 
	Payment Date	 	Percentage
	March 31, 2010
	 	 	0.25	%
	June 30, 2010
	 	 	0.25	%
	September 30, 2010
	 	 	0.25	%
	December 31, 2010
	 	 	0.25	%
	March 31, 2011
	 	 	0.25	%
	June 30, 2011
	 	 	0.25	%
	September 30, 2011
	 	 	0.25	%
	December 31, 2011
	 	 	0.25	%
	March 31, 2012
	 	 	0.25	%
	June 30, 2012
	 	 	0.25	%
	September 30, 2012
	 	 	0.25	%
	December 31, 2012
	 	 	0.25	%
	March 31, 2013
	 	 	0.25	%
	June 30, 2013
	 	 	0.25	%
	September 30, 2013
	 	 	0.25	%
	December 31, 2013
	 	 	0.25	%
	March 31, 2014
	 	 	0.25	%
	June 30, 2014
	 	 	0.25	%
	September 30, 2014
	 	 	0.25	%
	Maturity Date
	 	 	95.25	%






          (b) The Delayed Draw Loan of each Lender shall mature in nineteen consecutive quarterly
installments, commencing on the last day of the first full calendar quarter following the Delayed
Draw Funding Date, each of which shall be in an amount equal to the percentage set forth below
opposite such date multiplied by the amount of such Lender’s Delayed Draw Loan outstanding at the
end of the Delayed Draw Availability Period (it being understood that if the Maturity Date is the
Accelerated Maturity Date, there shall be fewer quarterly installments and the final installment
shall be increased accordingly):





25 









 








	 	 	 	 	 
	Payment Date	 	Percentage
	March 31, 2010
	 	 	0.25	%
	June 30, 2010
	 	 	0.25	%
	September 30, 2010
	 	 	0.25	%
	December 31, 2010
	 	 	0.25	%
	March 31, 2011
	 	 	0.25	%
	June 30, 2011
	 	 	0.25	%
	September 30, 2011
	 	 	0.25	%
	December 31, 2011
	 	 	0.25	%
	March 31, 2012
	 	 	0.25	%
	June 30, 2012
	 	 	0.25	%
	September 30, 2012
	 	 	0.25	%
	December 31, 2012
	 	 	0.25	%
	March 31, 2013
	 	 	0.25	%
	June 30, 2013
	 	 	0.25	%
	September 30, 2013
	 	 	0.25	%
	December 31, 2013
	 	 	0.25	%
	March 31, 2014
	 	 	0.25	%
	June 30, 2014
	 	 	0.25	%
	September 30, 2014
	 	 	0.25	%
	Maturity Date
	 	 	95.25	%






          2.5. [Reserved].




          2.6. Fees. (a) The Borrower agrees to pay to the Administrative Agent, for the account of
each Lender, a ticking fee (the “Ticking Fee”) in an amount equal to 0.75% per annum of the
Commitment of such Lender, from the effective date of this Agreement pursuant to Section 10.18
until the Closing Date, payable on the Closing Date.




          (b) The Borrower agrees to pay to the Administrative Agent, for the account of each Lender,
upfront fees (the “Upfront Fees”) (i) in an amount equal to 1.00% of the Closing Date
Commitment of such Lender, payable on the Closing Date and (ii) in an amount equal to 1.00% of the
Delayed Draw Commitment of such Lender that is funded on the Delayed Draw Funding Date, payable on
the Delayed Draw Funding Date.




          (c) The Borrower agrees to pay to the Administrative Agent, for the account of each Lender, a
commitment fee (the “Delayed Draw Commitment Fee”) in an amount equal to 2.00% per annum of
the Delayed Draw Commitments from the Closing Date until the earlier of the Delayed Draw Funding
Date or termination of the Delayed Draw Commitments, pursuant to Section 2.7, payable on the
Delayed Draw Funding Date or termination of the Delayed Draw Commitments, as applicable.




26 









 








          (d) The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the
dates as set forth in any fee agreements with the Administrative Agent and to perform any other
obligations contained therein.




          2.7.   Termination or Reduction of Commitments.




          (a) Unless previously terminated, (i) the Closing Date Commitments shall terminate on the
earlier of (x) the funding of the Closing Date Loans on the Closing Date and (y) 5:00 p.m., New
York City time, on December 15, 2009 and (ii) the Delayed Draw Commitments shall terminate at 5:00
p.m., New York City time, on the date that is 35 days after the Closing Date (or, if the Closing
Date does not occur by 5:00 p.m., New York City time, on December 15, 2009, at such time).




          (b) The Borrower shall have the right, upon not less than three Business Days’ notice to the
Administrative Agent, to terminate any Commitments or, from time to time, to reduce the amount of
any Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a whole multiple
thereof, and shall reduce permanently the applicable Commitments then in effect.




          2.8. Optional Prepayments.




          (a) Subject to subsection (b) below, the Borrower may at any time and from time to time prepay
the Loans, in whole or in part, without premium or penalty, upon irrevocable notice delivered to
the Administrative Agent no later than 1:00 P.M., New York City time, three Business Days prior
thereto, in the case of Eurodollar Loans, and one Business Day prior thereto, in the case of ABR
Loans (provided that ABR Loans may be prepaid on the same Business Day if notice is received by the
Administrative Agent no later than 12:00 P.M., New York City time), which notice shall specify the
date and amount of prepayment and Type of the Loans being prepaid, as applicable; provided, that if
a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable
thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.18. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. If
any such notice is given, the amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to such date on the amount prepaid. Partial
prepayments of Loans shall be in an aggregate principal amount of $1,000,000 or a whole multiple of
$1,000,000 in excess thereof. Partial optional prepayments of the Loans shall be ratable as among
the Lenders thereof.




          (b) All voluntary prepayments of Loans effected on or prior to the first anniversary of the
Closing Date with the proceeds of a substantially concurrent issuance of loans under any secured
credit facilities (excluding a refinancing of the Facility in connection with another transaction
not permitted by this Agreement (as determined prior to giving effect to any amendment or waiver of
this Agreement being adopted in connection with such transaction), provided that the
primary purpose of such transaction is not to refinance Indebtedness hereunder at an Applicable
Margin or similar interest rate spread more favorable to the Borrower), shall be accompanied by a
prepayment fee of 1.00% of the aggregate amount of such prepayments if the Applicable Margin or
similar interest rate spread applicable to such new loans is or, upon the satisfaction of certain
conditions, would be less than the Applicable Margin applicable to the Loans, as of the date
hereof. Such prepayment fee shall be paid by the Borrower to the Administrative Agent, for the
account of the Lenders, on the date of such prepayment.




          2.9. Mandatory Prepayments. (a) If any Capital Stock or Indebtedness shall be issued or
incurred by any Group Member (excluding any Excluded Issuance and any Indebtedness permitted by
Section 7.2(a) through (s)) an amount equal to the Equity Sweep Percentage of such Net Cash
Proceeds in the case of Capital Stock and 100% of the Net Cash Proceeds in the case of Indebtedness
shall be applied




27 









 







by the Borrower on the date of receipt thereof by such Group Member toward the prepayment of
the Loans as set forth in Section 2.9(e).




          (b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or
Recovery Event then, unless a Reinvestment Notice shall have been timely delivered in respect
thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied by or on behalf of the
Borrower promptly but no later than the end of the fiscal month following the fiscal month in which
such Net Cash Proceeds are received) toward the prepayment of the Loans as set forth in Section
2.9(e); provided that notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of
Asset Sales that may be excluded from the foregoing prepayment requirement pursuant to Reinvestment
Notices shall not exceed $150,000,000 in any fiscal year of the Borrower and (ii) on each
Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to
the relevant Reinvestment Event shall be applied toward the prepayment of the Loans as set forth in
Section 2.9(e).




          (c) If, for (i) the period from the first anniversary of the Closing Date through the end of
the then current fiscal year of the Borrower or (ii) any fiscal year of the Borrower thereafter,
there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application
Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Loans as set
forth in Section 2.9(e). Each such prepayment shall be made on a date (an “Excess Cash Flow
Application Date”) no later than five Business Days after the earlier of (i) the date on which
the financial statements of the Borrower referred to in Section 6.1(a), for the fiscal year with
respect to which such prepayment is made, are required to be delivered to the Lenders and (ii) the
date such financial statements are actually delivered.




          (d) Following the establishment of any Receivable Financing Transaction by the Borrower or any
of its Domestic Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be
promptly applied by or on behalf of the Borrower toward the prepayment of the Loans as set forth in
Section 2.9(e).




          (e) Amounts to be applied in connection with prepayments made pursuant to this Section 2.9
shall be made ratably among the Lenders of the Loans. The application of any prepayment made
pursuant to this Section 2.9 shall be made, first, to ABR Loans and, second, to
Eurodollar Loans. Each prepayment of the Loans under Section 2.9 shall be accompanied by accrued
interest to the date of such prepayment on the amount prepaid and, if a Eurodollar Loan is prepaid
on any day other the last day of the Interest Period applicable thereto, the Borrower shall also
pay amounts owing pursuant to Section 2.18.




          2.10. Conversion and Continuation Options. (a) The Borrower may elect from time to time to
convert Eurodollar Loans to ABR Loans by giving the Administrative Agent prior irrevocable notice
of such election no later than 11:00 A.M., New York City time, on the Business Day preceding the
proposed conversion date. The Borrower may elect from time to time to convert ABR Loans to
Eurodollar Loans by giving the Administrative Agent prior irrevocable notice of such election no
later than 11:00 A.M., New York City time, on the third Business Day preceding the proposed
conversion date (which notice shall specify the length of the initial Interest Period therefor),
provided that no ABR Loan may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Required Lenders have determined
in its or their sole discretion not to permit such conversions. Upon receipt of any such notice
the Administrative Agent shall promptly notify each relevant Lender thereof.




          (b) Any Eurodollar Loan may be continued as such upon the expiration of the then current
Interest Period with respect thereto by the Borrower giving irrevocable notice to the
Administrative Agent, in accordance with the applicable provisions of the term “Interest Period”
set forth




28 









 







in Section 1.1, of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Required Lenders have determined
in its or their sole discretion not to permit such continuations, and provided,
further, that if the Borrower shall fail to give any required notice as described above in
this paragraph or if such continuation is not permitted pursuant to the preceding proviso such
Loans shall be automatically converted to ABR on the last day of such then expiring Interest
Period. Upon receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.




          2.11. Limitations on Eurodollar Tranches. Notwithstanding anything to the contrary in this
Agreement, all borrowings, conversions and continuations of Eurodollar Loans and all selections of
Interest Periods shall be in such amounts and be made pursuant to such elections so that, (a) after
giving effect thereto, the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to $1,000,000 or a whole multiple of $500,000 in excess thereof
and (b) no more than ten Eurodollar Tranches shall be outstanding at any one time.




          2.12. Interest Rates and Payment Dates. (a) Subject to the provisions of Section 2.12(c),
each Eurodollar Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.




          (b) Subject to the provisions of Section 2.12(c), each ABR Loan shall bear interest at a rate
per annum equal to the ABR plus the Applicable Margin.




          (c) If any Event of Default shall have occurred and be continuing, on and after the date the
Borrower receives notice from the Administrative Agent stating that interest is to accrue pursuant
to this paragraph (c) or following acceleration of payment of the Loans, all outstanding Loans and
other Obligations under the Loan Documents (whether or not overdue at such time) shall bear
interest at a rate per annum equal to (i) in the case of the Loans, the rate that would otherwise
be applicable thereto pursuant to the foregoing provisions of this Section plus 2% or and
(ii) in the case of any other Obligation, the rate then applicable to ABR Loans plus 2%, in
each case, with respect to clauses (i) and (ii) above, from the date of such non-payment until such
amount is paid in full (after as well as before judgment).




          (d) Interest shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to paragraph (c) of this Section shall be payable from time to time on
demand.




          2.13. Computation of Interest and Fees. (a) Interest and fees payable pursuant hereto
shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with
respect to ABR Loans the rate of interest on which is calculated on the basis of the Prime Rate,
the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Lenders of each determination of a Eurodollar Rate. Any change in the
interest rate on a Loan resulting from a change in the ABR or the Eurocurrency Reserve Requirements
shall become effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of the effective date and the amount of each such change in interest rate.




          (b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be presumptively correct and binding on the Borrower and the
Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the
Borrower,




29 









 







deliver to the Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.12(a).




          2.14. Inability to Determine Interest Rate. If prior to the first day of any Interest
Period:





     (a) the Administrative Agent shall have determined (which determination shall
be presumptively correct and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for such Interest Period, or




     (b) the Administrative Agent shall have received notice from the Required
Lenders that the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their affected
Loans during such Interest Period,


the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the
relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar
Loans requested to be made on the first day of such Interest Period shall be made as ABR Loans,
(y) any Loans that were to have been converted on the first day of such Interest Period to
Eurodollar Loans shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans shall be
converted, on the last day of the then-current Interest Period, to ABR Loans. Until such notice
has been withdrawn by the Administrative Agent (which the Administrative Agent shall do promptly
after the circumstances giving rise to such event no longer exist), no further Eurodollar Loans
shall be made or continued as such, nor shall the Borrower have the right to convert Loans to
Eurodollar Loans.




          2.15.
 Pro Rata Treatment and Payments. (a) Except as otherwise provided herein, each
payment by the Borrower on account of any fee payable to Lenders shall be made pro rata according
to the respective Outstanding Percentages, Closing Date Percentages or Delayed Draw Percentages, as
applicable, of the relevant Lenders entitled thereto.




          (b) Except as otherwise provided herein, each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Loans shall be made pro
rata according to the respective Outstanding Percentages of the relevant Lenders entitled
thereto. The amount of each principal prepayment of the Loans shall be applied to reduce the then
remaining installments of the Loans (i) as directed by the Borrower in the case of prepayments made
pursuant to Section 2.8 and (ii) ratably based upon the respective then remaining principal amounts
thereof in the case of prepayments made pursuant to Section 2.9. Amounts prepaid on account of the
Loans may not be reborrowed.




          (c) All payments (including prepayments) to be made by the Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and
shall be made prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such payments to each
relevant Lender promptly upon receipt in like funds as received. If any payment hereunder (other
than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar
Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day. In the case of any




30 









 







extension of any payment of principal pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such extension.




          (d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent, and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If
such amount is not made available to the Administrative Agent by the required time on the date of
borrowing therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a
rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation, for the period until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest
error. If such Lender’s share of such borrowing is not made available to the Administrative Agent
by such Lender within three Business Days after such date of borrowing, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate per annum
applicable thereto, within three Business Days after demand therefor from the Borrower.




          (e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior
to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make
such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required to, in reliance
upon such assumption, make available to the Lenders their respective pro rata
shares of a corresponding amount. If such payment is not made to the Administrative Agent by the
Borrower within three Business Days after such due date, the Administrative Agent shall be entitled
to recover, on demand, from each Lender to which any amount which was made available pursuant to
the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the
Administrative Agent or any Lender against the Borrower.




          (f) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.15(d), 2.15(e) or 9.7, then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision of this Agreement), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until
all such unsatisfied obligations are fully paid.




          2.16.

 Requirements of Law. (a) If the adoption of or any change in any Requirement of Law
or in the interpretation or application thereof or compliance by any Lender with any request or
directive (whether or not having the force of law) from any central bank or other Governmental
Authority, in each case, made subsequent to the date hereof:





	 	(i)	 	shall subject any Lender to any tax of any kind whatsoever with respect to
this Agreement or any Eurodollar Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded Taxes covered by
Section 2.17 and changes in the rate of tax on the overall net income of such Lender);
	 
	 	(ii)	 	shall impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other extensions of credit
by, or any other acquisition of




31 









 






	 	 	 	funds by, any office of such Lender that is not otherwise included in the
determination of the Eurodollar Rate; or
	 
	 	(iii)	 	shall impose on such Lender any other condition;




and the result of any of the foregoing is to increase the cost to such Lender, by an amount that
such Lender reasonably deems to be material, of making, converting into, continuing or maintaining
Eurodollar Loans, or to reduce any amount receivable hereunder in respect thereof, then, in any
such case, the Borrower shall promptly pay such Lender, within 30 days after receipt of a
reasonably detailed invoice therefor, any additional amounts necessary to compensate such Lender
for such increased cost or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy
to the Administrative Agent) of the event by reason of which it has become so entitled.




          (b) If any Lender shall have determined that the adoption of or any change in any Requirement
of Law regarding capital adequacy or in the interpretation or application thereof or compliance by
such Lender or any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental Authority, in each
case, made subsequent to the date hereof shall have the effect of reducing the rate of return on
such Lender’s or such corporation’s capital as a consequence of its obligations hereunder to a
level below that which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender’s or such corporation’s policies with
respect to capital adequacy) by an amount reasonably deemed by such Lender to be material, then
from time to time, after submission by such Lender to the Borrower (with a copy to the
Administrative Agent) of a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such corporation for such reduction.




          (c) A certificate as to any additional amounts payable pursuant to this Section submitted by
any Lender to the Borrower (with a copy to the Administrative Agent) shall be presumptively correct
in the absence of manifest error. Notwithstanding anything to the contrary in this Section, the
Borrower shall not be required to compensate a Lender pursuant to this Section for any amounts
incurred more than nine months prior to the date that such Lender notifies the Borrower of such
Lender’s intention to claim compensation therefor; provided that, if the circumstances
giving rise to such claim have a retroactive effect, then such nine-month period shall be extended
to include the period of such retroactive effect. The obligations of the Borrower pursuant to this
Section shall survive the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.




          2.17.

 Taxes. (a) All payments made by or on account of any Loan Party under this Agreement
or any other Loan Document shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority (including any interest, addition to tax or penalties
applicable thereto), excluding income taxes and franchise taxes (imposed in lieu of net income
taxes) and taxes imposed on or measured by the Administrative Agent’s or any Lender’s net profits
if such tax is imposed as a result of a present or former connection between the Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any such connection
arising solely from the Administrative Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement or any other Loan
Document). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings (“Non-Excluded Taxes”) or any Other Taxes are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder




32 









 







or under any other Loan Document, the amounts so payable to the Administrative Agent or such
Lender shall be increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement; provided, however,
that the Borrower shall not be required to increase any such amounts payable to the Administrative
Agent or any Lender with respect to any Non-Excluded Taxes (i) that are attributable to the
Administrative Agent’s or such Lender’s failure to comply with the requirements of paragraph (d) or
(e) of this Section or (ii) that are United States withholding taxes imposed on amounts payable to
the Administrative Agent or such Lender at the time the Administrative Agent or such Lender becomes
a party to this Agreement, except to the extent that the Administrative Agent’s or such Lender’s
assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the
Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph (a).




          (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.




          (c) Whenever any Non-Excluded Taxes or Other Taxes are payable by any Loan Party, as promptly
as reasonably possible thereafter such Loan Party shall send to the Administrative Agent for its
own account or for the account of the relevant Lender, as the case may be, (i) a certified copy of
an original official receipt received by such Loan Party showing payment thereof or (ii) if such
Loan Party reasonably determines that it is unable to provide a certified copy of such receipt, a
certificate as to the amount of such payment. If the relevant Loan Party fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority or fails to remit to
the Administrative Agent copies of the required receipts or other required documentary evidence,
such Loan Party shall indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any Lender as a result
of any such failure.




          (d) Each Lender (or Transferee) that is not a “United States Person” as defined in Section
7701(a)(30) of the Code (a “Non-U.S. Lender”) shall deliver to the Borrower and the
Administrative Agent (or, in the case of a Participant, to the Administrative Agent and the Lender
from which the related participation shall have been purchased) two copies of either U.S. Internal
Revenue Service (“IRS”) Form W-8BEN claiming eligibility for benefits of an income tax
treaty to which the United States is a party, Form W-8ECI or Form W-8IMY (accompanied by applicable
underlying IRS forms), or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio
interest”, a statement substantially in the form of Exhibit F and two copies of the applicable Form
W-8, or any subsequent versions thereof or successors thereto, in each case properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S.
federal withholding tax on all payments by the Borrower under this Agreement and the other Loan
Documents. Such forms shall be delivered by each Non-U.S. Lender on or before the date it becomes
a party to this Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation). In addition, each Non-U.S. Lender shall deliver
such forms promptly upon the expiration, obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower and the
Administrative Agent at any time it determines that it is no longer in a position to provide any
previously delivered certificate to the Borrower and the Administrative Agent (or any other form of
certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other
provision of this paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant
to this paragraph that such Non-U.S. Lender is not legally able to deliver.




          (e) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which




33 









 








such jurisdiction is a party, with respect to payments under this Agreement shall deliver to
the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower (or the Administrative Agent), such properly
completed and executed documentation prescribed by applicable law as will permit such payments to
be made without withholding or at a reduced rate, provided that such Lender is legally
entitled to complete, execute and deliver such documentation and in such Lender’s reasonable
judgment such completion, execution or submission would not materially prejudice the commercial or
legal position of such Lender.




          (f) Any Lender that is a United States person as defined in Section 7701(a)(30) of the Code
shall deliver to the Borrower (with a copy to the Administrative Agent) a duly completed and signed
IRS Form W-9 (or successor form) establishing that the Lender is organized under the laws of the
United States and is not subject to backup withholding.




          (g) If the Administrative Agent or any Lender determines, in its sole discretion (exercised in
good faith), that it has received a refund of any Non-Excluded Taxes or Other Taxes as to which it
has been indemnified by the Borrower or with respect to which the Borrower has paid additional
amounts pursuant to this Section 2.17, it shall pay over such refund to the Borrower (but only to
the extent of indemnity payments made, or additional amounts paid, by the Borrower under this
Section 2.17 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of the Administrative Agent or such Lender and without interest
(other than any interest paid by the relevant Governmental Authority with respect to such refund);
within 45 Business Days of the determination that the Borrower is entitled to such refund
provided, that the Borrower, upon the request of the Administrative Agent or such Lender,
agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the
event the Administrative Agent or such Lender is required to repay such refund to such Governmental
Authority. This paragraph shall not be construed to require the Administrative Agent or any Lender
to make available its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or to any other Person.




          (h) Each Lender shall indemnify the Administrative Agent, within 10 days after demand
therefor, for the full amount of any Taxes attributable to such Lender that are payable or paid by
the Administrative Agent, and reasonable expenses arising therefrom or with respect thereto,
whether or not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
any Lender by the Administrative Agent shall be conclusive absent manifest error.




          (i) The agreements in this Section shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.




          2.18. Indemnity. The Borrower agrees to indemnify each Lender for, and to hold each Lender
harmless from, any loss or expense that such Lender may sustain or incur as a consequence of
(a) default by the Borrower in making a borrowing of, conversion into or continuation of Eurodollar
Loans after the Borrower has given a notice requesting the same in accordance with the provisions
of this Agreement (other than by operation of Section 2.14), (b) default by the Borrower in making
any prepayment of or conversion from Eurodollar Loans after the Borrower has given a notice thereof
in accordance with the provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day that is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the amount of interest
that would have accrued on the amount so prepaid, or not so borrowed, converted or continued, for
the period from the date of such prepayment or of such failure to borrow, convert or continue to
the last day of such Interest Period (or, in the case of a failure to borrow, convert or continue,
the Interest Period that would have commenced on the




34 









 







date of such failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any) over (ii) the
amount of interest (as reasonably determined by such Lender) that would have accrued to such Lender
on such amount by placing such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market. A certificate as to any amounts payable pursuant to this Section
submitted to the Borrower by any Lender shall be presumptively correct in the absence of manifest
error. This covenant shall survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.




          2.19. Change of Lending Office. Each Lender agrees that, upon the occurrence of any event
giving rise to the operation of Section 2.16 or 2.17(a) with respect to such Lender, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such
Lender) to designate another lending office for any Loans affected by such event with the object of
avoiding the consequences of such event; provided, that such designation is made on terms that, in
the sole judgment of such Lender, cause such Lender and its lending office(s) to suffer no
economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section
shall affect or postpone any of the obligations of the Borrower or the rights of any Lender
pursuant to Section 2.16 or 2.17(a).




          2.20.   Incremental Facility




          (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the
Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of
the Lenders), request one or more additional tranches of term loans, revolving facilities or letter
of credit facilities (each, an “Incremental Facility”), provided that (i) at the
time and after the effectiveness of any Incremental Amendment referred to below, no Default or
Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in compliance
with the covenants contained in Section 7.1 determined on a pro forma basis as of the last day of
the most recent period of the Borrower for which financial statements are available as if any term
loans under such Incremental Facility had been outstanding and any revolving commitment under such
Incremental Facility (to the extent not available to issue letters of credit) had been fully used
on the last day of such period and (iii) the Consolidated Leverage Ratio determined on a pro forma
basis as of the last day of the most recent fiscal quarter of the Borrower for which financial
statements are available, determined as if any term loans under such Incremental Facility had been
outstanding on the last day of such period, shall be less than 2.5 to 1.0. Each Incremental
Facility shall be in an aggregate principal amount that is not less than $50,000,000
(provided that such amount may be less than $50,000,000 if such amount represents all
remaining availability under the limit set forth in the next sentence) and there shall be not more
than 3 requests for Incremental Facilities. Notwithstanding anything to the contrary herein, the
aggregate amount of the Incremental Facilities shall not exceed $200,000,000. Any Incremental
Facility (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall
not mature earlier than the Maturity Date or have a weighted average life (if applicable) which is
shorter than the then remaining average life of the Loans, and (c) shall otherwise be on terms and
pursuant to documentation to be determined by the Borrower and the Persons willing to provide such
Incremental Facility, provided that (A) to the extent such terms and documentation are not
consistent with the Facility (other than with respect to pricing, amortization and maturity) they
shall be reasonably satisfactory to the Administrative Agent and (B) if the Applicable Margin
(which term for purposes of this Section 2.20 shall include any original issue discount
(“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable
by the Borrower to the lenders under Facility or the Incremental Facility, as applicable, in the
primary syndication thereof (with OID being equated to interest based on assumed three-year life to
maturity)) relating to any Incremental Facility exceeds the Applicable Margin relating to the
Facility immediately prior to the effectiveness of the applicable Incremental Amendment, the
Applicable Margin relating to the Facility shall be adjusted to equal the Applicable Margin
relating to such Incremental Facility. Each notice from the Borrower pursuant to this Section 2.20
shall set forth the requested amount and proposed




35 









 







terms of the relevant Incremental Facility and the Lenders or other Persons willing to provide
the Incremental Facility. The Incremental Facility may be provided by any existing Lender or by
any Eligible Assignee selected by the Borrower (any such other financial institution or fund being
called an “Additional Lender”), provided that the Administrative Agent shall have
consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such
Incremental Facility if such consent would be required under Section 10.6 for an assignment of
Loans to such Lender or Additional Lender. Commitments in respect of Incremental Facilities shall
become Commitments under this Agreement pursuant to an amendment (an “Incremental
Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the
Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any,
and the Administrative Agent pursuant to Section 10.1(e) hereof. The Incremental Amendment may,
without the consent of any other Lenders, effect such amendments to this Agreement and the other
Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative
Agent and the Borrower, to effect the provisions of this Section 2.20. The effectiveness of any
Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an
“Incremental Facility Closing Date”) of each of the conditions set forth in Section 5.2
(it being understood that all references to the Delayed Draw Funding Date or similar language in
such Section 5.2 shall be deemed to refer to the effective date of such Incremental Amendment) and
such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of
the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be
obligated to provide any Incremental Facility, unless it so agrees. The Administrative Agent and
the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment
requirements contained elsewhere in this Agreement shall not apply to the transactions effected
pursuant to this paragraph.




          2.21. Intercreditor Agreement. Each Lender hereby authorizes and directs the Administrative
Agent and the Collateral Agent to enter into the Intercreditor Agreement on its behalf and hereby
approves and agrees to be bound by the terms of the Intercreditor Agreement. Notwithstanding
anything to the contrary herein, in the case of any inconsistency between this Agreement and the
Intercreditor Agreement, the Intercreditor Agreement shall govern. The Lenders acknowledge that
the Second Lien Term Loans and related obligations are secured by the Collateral, subject to the
Intercreditor Agreement.




SECTION
3. [RESERVED]




SECTION
4. REPRESENTATIONS AND WARRANTIES




          To induce the Agents and the Lenders to enter into this Agreement and the Lenders to make the
Loans, each Loan Party hereby jointly and severally represents and warrants to the Agents and each
Lender that:




          4.1. No Change. Since the Petition Date, there has been no development or event that has
had or could reasonably be expected to have a Material Adverse Effect (it being agreed that solely
for purposes of this Section 4.1 no change in automotive industry conditions or in banking,
financial or capital markets on and after such date which does not disproportionately adversely
affect the Borrower and its Subsidiaries, taken as a whole, shall have a Material Adverse Effect).




          4.2. Existence; Compliance with Law. Each Loan Party (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its organization, (b) has the
power and authority, and the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign corporation or other organization and in good standing under the laws of
each jurisdiction where its ownership, lease




36 









 







or operation of property or the conduct of its business requires such qualification and (d) is
in compliance with all Requirements of Law.




          4.3. Power; Authorization; Enforceable Obligations. Upon entry by the Bankruptcy Court of
the Confirmation Order, each Loan Party has the power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case of the Borrower, to
obtain extensions of credit hereunder. Each Loan Party has taken all necessary organizational
action to authorize the execution, delivery and performance of the Loan Documents to which it is a
party and, in the case of the Borrower, to authorize the extensions of credit on the terms and
conditions of this Agreement. No consent or authorization of, filing with, notice to or other act
by or in respect of, any Governmental Authority or any other Person is required in connection with
the extensions of credit hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the Loan Documents except (i) consents, authorizations,
filings and notices described in Schedule 4.3, which consents, authorizations, filings and notices
(other than the Confirmation Order) have been obtained or made and are in full force and effect and
(ii) the filings referred to in Section 4.20. Each Loan Document has been duly executed and
delivered on behalf of each Loan Party thereto. This Agreement constitutes, and each other Loan
Document upon execution will constitute, a legal, valid and binding obligation of each Loan Party
party thereto, enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).




          4.4. No Legal Bar. The execution, delivery and performance of this Agreement and the other
Loan Documents, the borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or any Contractual Obligation of any Loan Party and will not result in, or
require, the creation or imposition of any Lien on any of their respective properties or revenues
pursuant to any Requirement of Law or any such Contractual Obligation (other than the Liens created
by the Loan Documents and the Second Lien Term Loans).




          4.5. Litigation. No litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower, threatened by or against
any Loan Party or against any of their respective properties or revenues (including with respect to
the Loan Documents) that could reasonably be expected to have a Material Adverse Effect.




          4.6. No Default. No Loan Party is in default under or with respect to any of its
Contractual Obligations in any respect that could reasonably be expected to have a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing.




          4.7. Ownership of Property; Liens. Except as could not reasonably be expected to have a
Material Adverse Effect, each Loan Party has title in fee simple to, or a valid leasehold,
subleasehold, license or other interest in, all its real property, and good title to, or a valid
leasehold interest in, all its other property, and none of such property, except for minor
encumbrances and defects in title that do not materially interfere with its ability to conduct its
business as currently conducted or to utilize such properties and assets for their intended
purposes is subject to any Lien except as permitted by Section 7.3.




          4.8. Intellectual Property. Each Loan Party owns, or is licensed to use, all Intellectual
Property necessary for the conduct of its business as currently conducted. No material claim has
been asserted and is pending by any Person against any Loan Party challenging or questioning the
use of any Intellectual Property or the validity or effectiveness of any Intellectual Property of
any Loan Party, nor does the Borrower know of any valid basis for any such claim. To the knowledge
of the Borrower, no use




37 









 







by each Loan Party of any of its material Intellectual Property infringes on the rights of any
Person in any material respect.




          4.9. Taxes. Each Loan Party has filed or caused to be filed all Federal and material state
and other material tax returns that are required to be filed and has paid all taxes shown to be due
and payable on said returns or on any material assessments made against it or any of its property
and all other material taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (except any such taxes the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which reserves in conformity
with GAAP (where GAAP requires such reserves) have been provided on the books of the relevant Loan
Party); no tax Lien has been filed, and, to the knowledge of the Borrower, no claim is being
asserted, with respect to any such tax, fee or other charge.




          4.10. Federal Regulations. No part of the proceeds of any Loans, and no other extensions of
credit hereunder, will be used (a) for “buying” or “carrying” any “margin stock” within the
respective meanings of each of the quoted terms under Regulation U as now and from time to time
hereafter in effect for any purpose that violates the provisions of the Regulations of the Board or
(b) for any purpose that violates the provisions of the Regulations of the Board. If requested by
any Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3
or FR Form U-1, as applicable, referred to in Regulation U.




          4.11. Labor Matters. Except as, in the aggregate, could not reasonably be expected to have
a Material Adverse Effect: (a) there are no strikes or other labor disputes against any Loan Party
pending or, to the knowledge of the Borrower, threatened; (b) hours worked by and payment made to
employees of each Loan Party have not been in violation of the Fair Labor Standards Act or any
other applicable Requirement of Law dealing with such matters; and (c) all payments due from any
Loan Party on account of employee health and welfare insurance have been, in all material respects,
paid or accrued as a liability on the books of the relevant Loan Party.




          4.12. ERISA. Except, in the aggregate, as could not reasonably be expected to result in a
Material Adverse Effect, (i) each Loan Party and each of their respective ERISA Affiliates is in
compliance with the applicable provisions of ERISA and the Code relating to Single Employer Plans
and Multiemployer Plans and the regulations and published interpretations thereunder and (ii) no
ERISA Event has occurred during the five-year period prior to the date on which this representation
is made or deemed made with respect to any Plan. Except, in the aggregate, as could not reasonably
be expected to result in a Material Adverse Effect, the present value of all accrued benefits under
each Single Employer Plan (based on those assumptions used to fund such Plan) did not, as of the
last annual valuation date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits.




          4.13. Investment Company Act; Other Regulations. No Loan Party is an “investment company”,
or a company “controlled” by an “investment company”, within the meaning of the Investment Company
Act of 1940, as amended. No Loan Party is subject to regulation under any Requirement of Law
(other than Regulation X of the Board) that limits its ability to incur the Indebtedness to be
incurred hereunder.




          4.14. Subsidiaries. As of the date hereof, (a) Schedule 4.14 sets forth the name and
jurisdiction of incorporation of each Subsidiary and, as to each such Subsidiary, the percentage of
each class of Capital Stock owned by any Loan Party and (b) except as set forth on Schedule 4.14,
there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or
commitments (other than




38 









 







stock options or similar equity awards granted to current or former employees or directors and
directors’ qualifying shares) of any nature relating to any Capital Stock of the Borrower or any
Subsidiary.




          4.15. Use of Proceeds. The proceeds of the Loans shall be used, together with cash on hand
of the Borrower, to replace and refinance the outstanding loans made under the DIP Credit Agreement
or, in the case of the Delayed Draw Loans, to refund cash used by the Borrower for the foregoing.
The proceeds of the Loans shall not be used to purchase or carry margin stock.




          4.16. Environmental Matters. Except as, in the aggregate, could not reasonably be expected
to have a Material Adverse Effect:





     (a) the facilities and properties owned, leased or operated by any Group Member
(the “Properties”) do not contain, and to the knowledge of the Borrower,
have not previously contained, any Materials of Environmental Concern in amounts or
concentrations or under circumstances that constitute or constituted a violation of,
or could give rise to liability under, any Environmental Law;




     (b) no Group Member has received or is aware of any notice of violation,
alleged violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any of
the Properties or the business operated by any Group Member (the
“Business”), nor does the Borrower have knowledge or reason to believe that
any such notice will be received or is being threatened;




     (c) Materials of Environmental Concern have not been transported or disposed of
from the Properties during the last five years or, to the knowledge of the Borrower,
any prior time in violation of, or in a manner or to a location that could give rise
to liability under, any Environmental Law, nor have any Materials of Environmental
Concern been generated, treated, stored or disposed of at, on or under any of the
Properties during the last five years or, to the knowledge of the Borrower, any
prior time in violation of, or in a manner that could give rise to liability under,
any applicable Environmental Law;




     (d) no judicial proceeding or governmental or administrative action is pending
or, to the knowledge of the Borrower, threatened, under any Environmental Law to
which any Group Member is or will be named as a party with respect to the Properties
or the Business, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the Properties
or the Business;




     (e) there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to the
operations of any Group Member in connection with the Properties or otherwise in
connection with the Business, during the last five years or, to the knowledge of the
Borrower, any prior time in violation of or in amounts or in a manner that could
give rise to liability under Environmental Laws;




     (f) the Properties and all operations at the Properties are in compliance, and
have in the last five years and, to the knowledge of the Borrower, at all prior
times been in compliance, with all applicable Environmental Laws, and there is no
contamination at,



39 









 







under or about the Properties or violation of any Environmental Law with
respect to the Properties or the Business; and



          (g) no Group Member has assumed any liability by contract or, to the knowledge
of the Borrower, operation of law, of any other Person under Environmental Laws.




          4.17. Accuracy of Information, etc. No factual statement or information contained in this
Agreement, any other Loan Document or any other document, certificate or statement furnished by or
on behalf of any Loan Party to the Administrative Agent, the Lenders or the Bankruptcy Court, or
any of them, for use in connection with the transactions contemplated by this Agreement or the
other Loan Documents other than any projections or pro forma information, when taken as a whole,
contained as of the date such statement, information, document or certificate was so furnished, any
untrue statement of a material fact or omitted to state a material fact necessary to make the
statements contained herein or therein not materially misleading in light of the circumstances when
made. The projections and pro forma information contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of the Borrower to be
reasonable at the time made, it being recognized by the Lenders that such projections as they
relate to future events are subject to significant uncertainties, many of which are beyond the
control of the Borrower and not to be viewed as fact and that actual results during the period or
periods covered by such projections may differ from the projected results set forth therein by a
material amount.




          4.18. Financial Statements. (a) The unaudited pro forma consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at October 3, 2009 (including the notes thereto) (the
“Pro Forma Balance Sheet”), copies of which will be furnished to the Administrative Agent
on or prior to the Closing Date, will have been prepared giving effect (as if such events had
occurred on such date) to (i) the occurrence of the Effective Date, (ii) the Second Lien Term Loans
deemed made on the Closing Date, (iii) the Loans made on the Closing Date and the use of the
proceeds thereof and (iv) the payment of fees and expenses in connection with the foregoing. The
Pro Forma Balance Sheet will have been prepared based on the best information available to the
Borrower as of the date of delivery thereof, and will present fairly on a pro forma basis the
estimated financial position of the Borrower and its consolidated Subsidiaries as at October 3,
2009, assuming that the events specified in the preceding sentence had actually occurred at such
date.




          (b) [Reserved.]




          (c) The (i) audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as of December 31, 2008 and the related statements of income and cash flow for the
fiscal year ending on such date and (ii) unaudited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as of June 30, 2009 and the related statements of income and cash
flow for the fiscal quarter ending on such date, each as heretofore furnished to the Administrative
Agent and the Lenders and certified by a Responsible Officer of the Borrower, are complete and
correct in all material respects and fairly present the financial condition of the Borrower and its
Subsidiaries on such date. All such financial statements, including the related schedules and notes
thereto, have been prepared in conformity with GAAP applied on a consistent basis, and all
liabilities, direct and contingent, of the Borrower on a consolidated basis with its Subsidiaries
on such date required to be disclosed pursuant to GAAP are disclosed in such financial statements,
subject to year-end audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.




          4.19. Insurance. All policies of insurance of any kind or nature owned by or issued to each
Loan Party, including policies of life, fire, theft, product liability, public liability, property
damage,




40 









 







other casualty, employee fidelity, workers’ compensation, employee health and welfare,
property and liability insurance, are (a) in full force and effect except to the extent
commercially reasonably determined by the Borrower not to be necessary pursuant to clause (b) of
this Section 4.19 or which is not material to the overall coverage and (b) are of a nature and
provide such coverage as in the reasonable opinion of the Borrower, is sufficient and is
customarily carried by companies of the size and character of the Loan Parties.




          4.20. Security Documents. (a) The Guarantee and Collateral Agreement is effective to
create in favor of the Collateral Agent, for its benefit, for the benefit of the Administrative
Agent and for the benefit of the Lenders, a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof. In the case of the Pledged Stock described in
the Guarantee and Collateral Agreement, when stock certificates representing such Pledged Stock are
delivered to the Collateral Agent (together with a properly completed and signed stock power or
endorsement), and in the case of the other Collateral described in the Guarantee and Collateral
Agreement, when financing statements and other filings specified on Schedule 4.20(a) in appropriate
form are filed in the offices specified on Schedule 4.20(a) together with payment of any filing or
recordation fees, or, with respect to after-acquired property, when the requirements set forth in
Section 6.9 have been complied with, the Collateral Agent shall have a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in such Collateral and the
proceeds thereof (except for registration of and application for Intellectual Property filed
outside the United States) to the extent such Lien can be perfected by the filing of financing
statements under the applicable UCC, as security for the Obligations (as defined in the Guarantee
and Collateral Agreement), in each case prior and superior in right to any other Person (except, in
the case of Collateral other than Pledged Stock, Liens permitted by Section 7.3, and in the case of
the Collateral constituting Pledged Stock, inchoate Liens arising by operation of law), in each
case, to the extent required by the Guarantee and Collateral Agreement.




          (b) Each of the Mortgages is effective to create in favor of the Collateral Agent, for its
benefit, for the benefit of the Administrative Agent and for the benefit of the Lenders, a legal,
valid and enforceable Lien on the Mortgaged Property described therein, and when the Mortgages are
filed in the offices specified on Schedule 4.20(b), each such Mortgage shall constitute a Lien on,
and security interest in, all right, title and interest of the Loan Parties in the subject
Mortgaged Property, as security for the Obligations (as defined in the relevant Mortgage), in each
case prior and superior in right to any other Person (except Liens permitted by Section 7.3). Part
1 of Schedule 1.1B lists, as of the date hereof, each parcel of owned real property located in the
United States and held by the Borrower or any of the Guarantors that has a fair market value
estimated in good faith by the Borrower, in excess of $5,000,000 (each, a “Mortgaged
Property”). Part 2 of Schedule 1.1B lists, as of the date hereof, (A) each parcel of owned
real property located in the United States and held by the Borrower or any of the Guarantors that
has a fair market value estimated in good faith by the Borrower in excess of $1,000,000 which is
not listed on Part 1 of Schedule 1.1B, and (B) each material parcel of real property located in the
United States and which is leased (as lessee) or subleased (as sublessee) by the Borrower or any of
the Guarantors.




          4.21. Solvency. After giving effect to the occurrence of the Effective Date and the
incurrence of all Indebtedness and Obligations being incurred in connection herewith and therewith,
the Borrower is Solvent.




          4.22. Regulation H. Except as disclosed in Schedule 4.22, no Mortgage encumbers improved
real property that is located in an area that has been identified by the Secretary of Housing and
Urban Development as an area having special flood hazards and in which flood insurance has been
made available under the National Flood Insurance Act of 1968, as amended.





41 












 





SECTION 5. CONDITIONS PRECEDENT




          5.1. Closing Date.




          The agreement of each Lender to make the extension of credit requested to be made by it on the
Closing Date is subject to the satisfaction, prior to or concurrently with the making of such
extension of credit on the Closing Date, of the following conditions precedent:





     (a) Credit Agreement. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by the Borrower, (ii) the Guarantee and
Collateral Agreement, executed and delivered by the Borrower and each Guarantor, and
(iii) the Intercreditor Agreement, executed and delivered by the Administrative
Agent, the Collateral Agent, the Second Lien Agent, the Borrower and each Guarantor.




     (b) Closing Certificate; Certified Certificate of Incorporation; Good
Standing Certificates. The Administrative Agent shall have received (i) a
certificate of a Responsible Officer of each Loan Party, dated the Closing Date, in
form and substance reasonably satisfactory to the Administrative Agent, as to the
incumbency and signature of their respective officers executing each Loan Document
to which it is a party, together with satisfactory evidence of the incumbency of
such Responsible Officer, (ii) a copy of the resolutions, in form and substance
reasonably satisfactory to the Administrative Agent, of the Board of Directors (or
the executive committee or other governing authority thereof) of each Loan Party
authorizing the execution, delivery and performance of each Loan Document to be
entered into on the Closing Date to which it is a party, (iii) a certificate of the
Borrower, in form and substance reasonably satisfactory to the Administrative Agent,
attaching the certificate of incorporation of each Loan Party that is a corporation
certified by the relevant authority of the jurisdiction of organization of such Loan
Party and (iv) a good standing certificate for each Loan Party from its jurisdiction
of organization.




     (c) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents shall be true
and correct in all material respects (provided that if any representation or
warranty is by its terms qualified by materiality, such representation shall be true
and correct in all respects) on and as of such date as if made on and as of such
date, except to the extent that any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or warranty
shall be true and correct on and as of such earlier date.




     (d) Fees. The Lenders and the Administrative Agent shall have received
all fees required to be paid, and all expenses for which invoices have been
presented (including the reasonable fees and expenses of legal counsel), on or
before the Closing Date.




     (e) Legal Opinion of Counsel to the Borrower. The Administrative Agent
shall have received (i) an opinion, in form and substance reasonably satisfactory to
the Administrative Agent, of counsel to the Borrower and its Subsidiaries and (ii)
the legal opinion of local counsel in jurisdictions in which the Mortgages have been
filed as may be reasonably requested by the Administrative Agent.



42 









 






     (f) Compliance with DIP Credit Agreement. The Administrative Agent
shall have received a certificate of a Responsible Officer of the Borrower in form
and substance reasonably satisfactory to the Administrative Agent, certifying (i) no
Default or Event of Default (as defined in the DIP Credit Agreement) exists under
the DIP Credit Agreement immediately prior to the termination thereof and (ii) the
Borrower is in compliance with the financial covenants set forth in Section 7.1 of
the DIP Credit Agreement, immediately prior to the termination of the DIP Credit
Agreement.




     (g) Pro Forma Liquidity. After giving pro forma effect
to the Plan of Reorganization and the borrowing of the Loans on the Closing Date (i)
Liquidity of the Borrower and its Subsidiaries shall not be less than the minimum
Liquidity required to be maintained pursuant to Section 7.1(b) of the DIP Credit
Agreement as of the last day of the fiscal month in which the Closing Date occurs,
and (ii) the aggregate principal amount of the Loans and the Second Lien Term Loans
shall not exceed $1,100,000,000, and the Borrower shall have provided to the
Administrative Agent reasonably satisfactory support for such calculations.




     (h) Confirmation Order. The Bankruptcy Court shall have entered an
order confirming the Plan of Reorganization, which order (the “Confirmation
Order”) (i) shall be in form and substance reasonably satisfactory to the
Administrative Agent, (ii) shall authorize the Facility and (iii) unless the
Arrangers otherwise agree, shall be in full force and effect and shall not have been
reversed or modified and shall not be stayed or subject to a motion to stay or
subject to appeal or petition for review, rehearing or certiorari. The Canadian
Court shall have entered an order in the CCAA Cases recognizing and implementing the
Confirmation Order with respect to the Canadian Debtors, which order (i) shall be
consistent with the Confirmation Order except to the extent otherwise reasonably
satisfactory to the Administrative Agent and (ii) unless the Arrangers otherwise
agree, shall be in full force and effect and shall not have been reversed or
modified and shall not be stayed or subject to a motion to stay or subject to appeal
or petition for review, rehearing or certiorari. The Effective Date shall have
occurred (and all conditions precedent thereto as set forth therein shall have been
satisfied (or shall be concurrently satisfied) or waived by the Administrative
Agent).




     (i) Repayment of DIP Facility. The DIP Facility shall have been repaid
in full in cash and all commitments relating thereto shall have been terminated, and
all liens and security interests related thereto shall have been terminated,
released or continued, as applicable.




     (j) Projections. The Borrower shall have delivered projections through
2014 prepared in good faith on the basis of the assumptions stated therein.




     (k) Second Lien Term Loans. (i) The Second Lien Credit Agreement shall
contain terms that conform to the Plan of Reorganization and are otherwise
reasonably satisfactory to the Administrative Agent, and (ii) the Administrative
Agent shall have received reasonably satisfactory evidence that the conditions to
the effectiveness of the Second Lien Term Loan Documents shall have been satisfied
or waived in accordance with their terms.




     (l) Pro Forma Balance Sheet; Financial Statements. The Lenders shall
have received (i) the Pro Forma Balance Sheet, (ii) audited consolidated financial
statements of the Borrower and its Subsidiaries for the most recently ended fiscal
year and (iii)



43 









 







unaudited interim consolidated financial statements of the Borrower and its
Subsidiaries for each fiscal quarter ended after the date of the latest applicable
financial statements delivered pursuant to clause (i) of this paragraph as to which
such financial statements are available.




     (m) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the extensions of credit
requested to be made on such date.




     (n) Patriot Act and “Know Your Customer” Information. The
Administrative Agent shall have received all documentation and other information
mutually agreed to be required by regulatory authorities under applicable “know your
customer” and anti-money laundering rules and regulations, including the United
States PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “USA Patriot Act”).




     (o) Ratings. The Borrower shall have used commercially reasonable
efforts to obtain a rating for the Facility from both S&P and Moody’s.




     (p) Insurance. The Administrative Agent shall have received insurance
certificates satisfying the requirements of Section 6.5 and
Section ___ of the
Mortgages.




     (q) Pledged Stock; Stock Powers; Pledged Notes. The Collateral Agent
shall have received (i) the certificates representing the shares of Capital Stock
pledged pursuant to the Security Documents, together with an undated stock power for
each such certificate executed in blank by a duly authorized officer of the pledgor
thereof and (ii) each promissory note (if any) pledged to the Collateral Agent
pursuant to the Security Documents endorsed (without recourse) in blank (or
accompanied by an executed transfer form in blank) by the pledgor thereof, in each
case of the foregoing, to the extent not previously delivered to the DIP Agent under
the DIP Credit Agreement.




     (r) Mortgages, etc. (i) The Administrative Agent shall have received
a Mortgage with respect to each Mortgaged Property, executed and delivered by a duly
authorized officer of each party thereto.




     (ii) If requested by the Administrative Agent, the Administrative Agent shall
have received, and the title insurance company issuing the policy referred to in
clause (iii) below (the “Title Insurance Company”) shall have received, maps
or plats of an as-built survey of the sites of the Mortgaged Properties certified to
the Administrative Agent and the Title Insurance Company in a manner reasonably
satisfactory to them, dated a date reasonably satisfactory to the Administrative
Agent and the Title Insurance Company by an independent professional licensed land
surveyor reasonably satisfactory to the Administrative Agent.




     (iii) The Administrative Agent shall have received in respect of each Mortgaged
Property with a fair market value estimated in good faith by the Borrower in excess
of $5,000,000 a binding pro forma mortgagee’s title insurance policy (or policies)
or marked-up unconditional commitment to issue such insurance, in each case in form
and substance reasonably satisfactory to the Administrative Agent. The
Administrative Agent shall have received evidence reasonably satisfactory to it that
all premiums in



44 









 







respect of each such policy, all charges for mortgage recording tax, and all
related expenses, if any, have been paid.




     (iv) If requested by the Administrative Agent, the Administrative Agent shall
have received in respect of each Mortgaged Property with a fair market value
estimated in good faith by the Borrower in excess of $5,000,000 (A) a policy of
flood insurance that (1) covers any parcel of improved real property that is
encumbered by any Mortgage and located in a special flood hazard area, (2) is
written in an amount not less than the outstanding principal amount of the
indebtedness secured by such Mortgage that is reasonably allocable to such real
property, the fair market value of such real property as estimated in good faith by
the Borrower or the maximum limit of coverage made available with respect to the
particular type of property under the National Flood Insurance Act of 1968, as
amended, whichever is less, and (3) has a term ending not later than the maturity of
the Indebtedness secured by such Mortgage and (B) confirmation that the Borrower has
received the notice required pursuant to Section 208(e)(3) of Regulation H of the
Board with respect to any parcel of improved real property that is encumbered by any
Mortgage and located in a special flood hazard area.




     (v) The Administrative Agent shall have received a copy of all recorded
documents referred to, or listed as exceptions to title in, the title policy or
policies referred to in clause (iii)) above.




     (s) Lien Searches. The Administrative Agent shall have received the
results of a recent lien search in each of the jurisdictions where any Loan Party is
organized, and such search shall reveal no liens on any of the assets of the Loan
Parties except for liens permitted by Section 7.3 or discharged on or prior to the
Closing Date pursuant to documentation reasonably satisfactory to the Administrative
Agent.




     (t) Filings, Registrations and Recordings. Each document (including
any Uniform Commercial Code financing statement) required by the Security Documents
or under law or reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the Collateral Agent, for its
benefit, for the benefit of the Administrative Agent and for the ratable benefit of
the Lenders, a perfected Lien (or in the case of the Mortgages, a valid Lien) on the
Collateral described therein, prior and superior in right to any other Person (other
than with respect to Liens expressly permitted by Section 7.3), shall be in proper
form to the satisfaction of the Collateral Agent for filing, registration or
recordation.



          5.2. Delayed Draw Funding Date.




          The agreement of each Lender to make the extension of credit requested to be made by it on the
Delayed Draw Funding Date is subject to the satisfaction, prior to or concurrently with the making
of such extension of credit on the Delayed Draw Funding Date, of the following conditions
precedent:




          (a) Representations and Warranties. Each of the representations and warranties made by
any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material
respects (provided that if any representation or warranty is by its terms qualified by
materiality, such representation shall be true and correct in all respects) on and as of such date
as if made on and as of such date, except to the extent that any such representation or warranty is
stated to relate solely to an earlier date, in which case such representation or warranty shall be
true and correct on and as of such earlier date.




45 









 








          (b) No Default. No Default or Event of Default shall have occurred and be continuing
on such date or after giving effect to the extensions of credit requested to be made on such date.



For the purpose of determining compliance with the conditions specified in this Section 5, each
Lender that has signed this Agreement shall be deemed to have accepted, and to be satisfied with,
each document or other matter required under this Section 5 unless the Administrative Agent shall
have received written notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.




SECTION 6. AFFIRMATIVE COVENANTS




          Each Loan Party hereby jointly and severally agrees that, commencing on the Closing Date and
so long as any Loan or other amount is owing to any Lender or the Administrative Agent hereunder,
each Loan Party shall and shall cause each of its Subsidiaries to:




          6.1. Financial Statements. Furnish to the Administrative Agent to be provided to each Lender:





     (a) as soon as available, but in any event not later than 120 days after the
end of each fiscal year of the Borrower, a copy of the audited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end of such year
and the related audited consolidated statements of income and of cash flows for such
year, setting forth in each case, in comparative form the figures for the previous
year, reported on without a qualification arising out of the scope of the audit or
other material qualification or exception (other than a “going concern” exception or
similar exception or qualification for fiscal year 2009), by independent certified
public accountants of nationally recognized standing; and




     (b) as soon as available, but in any event not later than 60 days after the end
of each of the first three quarterly periods of each fiscal year of the Borrower,
commencing with the fiscal quarter ended on or about October 3, 2009, the unaudited
consolidated and consolidating (on the same basis as the Borrower prepared
consolidating financial statements prior to the Closing Date) balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter and the
related unaudited consolidated and consolidating (on the same basis as the Borrower
prepared consolidating financial statements prior to the Closing Date) statements of
income and of cash flows for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case, in comparative form the figures
for the previous year, certified by a Responsible Officer, on behalf of the
Borrower, as being fairly stated in all material respects.


All such financial statements shall be complete and correct in all material respects and shall be
prepared in reasonable detail and in accordance with GAAP applied (except (i) as approved by such
accountants or officer, as the case may be, and disclosed in reasonable detail therein and (ii)
with respect to unaudited statements, the absence of footnote disclosure and subject to year-end
audit adjustments) consistently throughout the periods reflected therein and with prior periods.




          6.2. Certificates; Other Information. Furnish to the Administrative Agent which shall make such item available to each Lender
(or, in the case of clause (f), to the relevant Lender):





     (a) [Reserved];



46 









 






     (b) concurrently with the delivery of any financial statements pursuant to
Section 6.1, (i) a certificate of the Borrower stating that the Responsible Officer
executing such certificate on behalf of the Borrower has no knowledge of any Default
or Event of Default except as specified in such certificate, (ii) a Compliance
Certificate containing all information and calculations necessary for determining
compliance by each Loan Party with the provisions of this Agreement referred to
therein, including calculations in reasonable detail with respect to compliance with
Section 7.1, and (iii) in the case of quarterly or annual financial statements, to
the extent not previously disclosed to the Administrative Agent, (1) a description
of any change in the jurisdiction of organization of any Loan Party, (2) a
description of any Domestic Subsidiary acquired or created, including name and
jurisdiction of organization, and (3) a description of any Person that has become a
Loan Party, in each case since the date of the most recent report delivered pursuant
to this clause (iii) (or, in the case of the first such report so delivered, since
the Closing Date);




     (c) as soon as available, and in any event no later than 45 days after the end
of each fiscal year of the Borrower, a detailed consolidated budget for the
following fiscal year (including a projected consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of the following fiscal year, the
related consolidated statements of projected cash flow and projected income and a
description of the underlying assumptions applicable thereto), and, as soon as
available, significant revisions, if any, of such budget and projections with
respect to such fiscal year (collectively, the “Projections”), which
Projections shall in each case be accompanied by a certificate of the Borrower
executed by a Responsible Officer, on behalf of the Borrower, stating that such
Projections are based on reasonable estimates, information and assumptions and that
such Responsible Officer executing such certificate, on behalf of the Borrower, has
no reason to believe that such Projections are incorrect or misleading in any
material respect, and that whether or not any such Projections are in fact achieved
are subject to significant uncertainties and contingencies, many of which are not
within the control of the Borrower, and that no assurance can be given that such
Projections will be realized, and actual results may vary from the projected results
and such variations may be material;




     (d) concurrently with the delivery of any financial statements pursuant to
Section 6.1(a) or (b), a narrative discussion and analysis of the financial
condition and results of operations of the Borrower and its Subsidiaries for such
fiscal quarter and for the period from the beginning of the then current fiscal year
to the end of such fiscal quarter;




     (e) within five days after the same are filed, copies of all financial
statements and reports that the Borrower may make to, or file with, the SEC;




     (f) to the Administrative Agent on behalf of each Required Lender promptly
following receipt thereof, copies of any documents described in Sections 101(k) or
101(l) of ERISA that, following reasonable request of the Administrative Agent
(which right to request shall be exercised no more than once during a 12-month
period), any Loan Party
or any ERISA Affiliate shall have promptly requested from the administrator or
sponsor of a Multiemployer Plan with respect to such Multiemployer Plan; and




     (g) promptly, subject to applicable confidentiality agreements of the Group
Members, such reasonably available additional financial and other information as any
Lender through the Administrative Agent may from time to time reasonably request.



47 









 




Documents required to be delivered pursuant to Section 6.1, Section 6.2 or Section 6.7 may be
delivered electronically and if so delivered, shall be deemed to have been delivered on the date
received by the Administrative Agent. Each Lender shall be deemed to have received such documents
on the date on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency
or another relevant website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial or governmental third-party website or whether sponsored by the
Administrative Agent); provided, that the Borrower shall notify (which may be by facsimile
or electronic mail) the Administrative Agent of the posting of any such documents and, at the
request of the Administrative Agent, provide by electronic mail electronic versions (i.e., soft
copies) of such documents.




          6.3. Payment of Obligations. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent,
as the case may be, all its material obligations in respect of taxes, assessments and governmental
charges or levies of whatever nature, except where the amount or validity thereof is currently
being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the Borrower and its Subsidiaries.




          6.4. Maintenance of Existence; Compliance. (a)(i) Preserve, renew and keep in full force and effect its organizational existence and
(ii) take all reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business, except, in each case, as otherwise permitted by
Section 7.4 and except, in the case of clause (ii) above, to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (b) comply in all material
respects with all Requirements of Law.




          6.5. Maintenance of Property; Insurance. (a) Keep all property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted except as could not reasonably be expected to have a
Material Adverse Effect and (b) maintain with financially sound and reputable insurance companies
insurance on all its property in at least such amounts and against at least such risks (but
including in any event public liability, product liability and business interruption) as are
usually insured against in the same general area by companies engaged in the same or a similar
business.




          6.6. Inspection of Property; Books and Records; Discussions. (a) Keep proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and activities and (b) permit
representatives of the Agents or any Lender (subject to reasonable confidentiality agreements) to
visit and inspect any of its properties and examine and make abstracts from any of its books and
records at any reasonable time upon reasonable notice and as often as may reasonably be desired and
to discuss the business, operations, properties and financial and other condition of the Group
Members with officers and managerial employees of the Group Members and with their independent
certified public accountants,
provided that an officer of the Borrower shall be provided reasonable opportunity to
participate in any such discussion with the accountants; provided further that such inspections
shall be coordinated through the Administrative Agent so that in the absence of an Event of
Default, not more than one such inspection shall occur in any calendar year. The Agents and the
Lenders agree to use reasonable efforts to coordinate and manage the exercise of their rights under
this Section 6.6 so as to minimize the disruption to the business of the Borrower and its
Subsidiaries resulting therefrom.




          6.7. Notices. Promptly give notice to the Administrative Agent and each Lender of:





     (a) the occurrence of any Default or Event of Default;



48 









 






     (b) any litigation or proceeding affecting any Loan Party (i) in which the
amount involved is $10,000,000 or more and not covered by insurance, (ii) in which
injunctive or similar relief is sought or (iii) which relates to any Loan Document;




     (c) the occurrence of any ERISA Event that, alone or together with any other
ERISA Event(s) that have occurred, could reasonably be expected to result in
liability of any Loan Party or any of its ERISA Affiliates in an aggregate amount
exceeding $10,000,000; and




     (d) any development or event that has had or could reasonably be expected to
have a Material Adverse Effect.


Each notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible
Officer setting forth details of the occurrence referred to therein and stating what action the
relevant Loan Party proposes to take with respect thereto.




          6.8. Environmental Laws. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse
Effect:





     (a) comply with, and take all commercially reasonable steps to ensure
compliance by all tenants and subtenants, if any, with, all applicable Environmental
Laws, and obtain and comply with and maintain, and take all commercially reasonable
steps to ensure that all tenants and subtenants obtain and comply with and maintain,
any and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws.




     (b) conduct and complete all investigations, studies, sampling and testing, and
all remedial, removal and other actions required under Environmental Laws and
promptly comply with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws.



          6.9. Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Parties (other
than (x) any property described in paragraph (b) below and (y) any property constituting Excluded
Property) as to which the Collateral Agent, for the benefit of the Secured Parties, does not have a
perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments
to the Security Documents or such other documents as the Administrative Agent deems necessary or
advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a security
interest in such property and (ii) take all actions necessary or advisable to grant to the
Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security
interest under the laws of the United States in such property, including the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required by the Security
Documents or by law or as may be requested by the Administrative Agent.




          (b) (i) As soon as possible (and in no event later than 45 days after the delivery of any
financial statements under subsection 6.1(a) or (b), for any fiscal period, in the case of
Subsidiaries referred to in the following clause (A) which period may be extended by the
Administrative Agent from time to time in its discretion), cause (A) all of the Capital Stock
(other than Excluded Property) owned directly or indirectly by the Borrower of each of the
Borrower’s direct or indirect Domestic Subsidiaries (other than any Excluded Subsidiary or
Immaterial Subsidiary) to be pledged to the Collateral Agent, pursuant to an amendment to the
Security Documents reasonably requested by the Administrative Agent, (B) if requested by the
Administrative Agent, cause all of the Capital Stock (other than Excluded Property) owned directly
or indirectly by the Borrower of any of the Borrower’s direct or indirect Domestic Subsidiaries
(other than any Excluded Subsidiary and whether or not such Domestic Subsidiary is an Immaterial
Subsidiary) to be pledged to the Collateral Agent pursuant to an amendment to the Security
Documents reasonably requested by the Administrative Agent, (C) 65% of the voting Capital Stock and
all non-voting Capital Stock (other than Excluded




49 









 







Property) of each of the Borrower’s or any of its
Domestic Subsidiaries’ direct Foreign Subsidiaries which are not Immaterial Subsidiaries (or such
lesser amount as may be owned by the Borrower and its Domestic Subsidiaries), to be pledged to the
Collateral Agent pursuant to the Security Documents, for the ratable benefit of the Secured
Parties, pursuant to an amendment to the Security Documents reasonably requested by the
Administrative Agent and (D) the Administrative Agent to receive legal opinions of counsel to the
Borrower acceptable to the Administrative Agent covering such matters in respect of such pledges as
the Administrative Agent shall reasonably request.





     (ii) Notwithstanding the foregoing, cause the Capital Stock of any Special Purpose
Subsidiary or Subsidiary of the Borrower which acts as a purchaser of receivables for a
receivables securitization program of the Borrower and its Domestic Subsidiaries to be
pledged as Collateral pursuant to the Security Documents.



          (c) As soon as possible, cause (i) each of the Borrower’s direct or indirect Domestic
Subsidiaries (other than (A) an Excluded Subsidiary, (B) an Immaterial Subsidiary (provided
that all Immaterial Subsidiaries excluded under this clause (B) and clause (b) of the definition of
“Guarantor” shall not at any time contribute in the aggregate more than 5% of Consolidated Assets
or more than 5% of Consolidated Revenues), (C) a joint venture in which not more than 85% of the
aggregate Capital Stock of such joint venture is held by the Loan Parties in the aggregate or (D) a
direct holding company of one or more joint ventures under clause (C) hereof, provided that
such holding company does not engage in any business or own any assets other than owning the
Capital Stock of such joint ventures) to become a Guarantor by executing and delivering a joinder
or assumption agreement to the Guarantee and Collateral Agreement in a form reasonably requested by
the Administrative Agent if such Subsidiary is not then a Guarantor and (ii) opinions of counsel to
the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, covering
such matters in respect of the Guarantee and Collateral Agreement as the Administrative Agent shall
reasonably request to be delivered to the Administrative Agent.




          (d) With respect to any fee interest in any real property having a fair market value (together
with improvements thereof) in the good faith estimation of the Borrower of at least $5,000,000
or otherwise not constituting Excluded Property acquired after the Closing Date by any Loan
Party (other than any such real property subject to a Lien expressly permitted by Section 7.3(g)),
as soon as reasonably possible and in any event within 60 days after such acquisition (i) execute
and deliver a Mortgage, in favor of the Collateral Agent, for its benefit, for the benefit of the
Administrative Agent and for the benefit of the Lenders, covering such real property, creating a
Lien on such real property prior and superior in right to all other Liens on such real property
(except Liens permitted by Section 7.3), (ii) if reasonably requested by the Administrative Agent,
provide the Collateral Agent, for its benefit, for the benefit of the Administrative Agent and for
the benefit of the Lenders with (x) a binding pro forma mortgagee’s title insurance policy or
marked-up unconditional commitment to issue such insurance covering such real property in an amount
equal to the purchase price of such real property (or such lesser amount as shall be reasonably
specified by the Administrative Agent) as well as a current map or plat of an as-built survey
thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed
necessary by the Administrative Agent in connection with such Mortgage, each of the foregoing in
form and substance reasonably satisfactory to the Administrative Agent and (iii) if requested by
the Administrative Agent, deliver to the Agents legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to
the Administrative Agent.




50 









 








          6.10. Post-Closing Matters. (a) Maintain at all times substantially all of the cash and Cash Equivalents of the Loan
Parties (other than cash and Cash Equivalents which are pledged to third parties to secure
obligations of the Loan Parties) at an account or accounts with the Administrative Agent or any
other financial institution that has entered into a control agreement in form and substance
reasonably satisfactory to the Administrative Agent; provided, that (i) the Loan Parties
may maintain accounts with financial institutions other than the Administrative Agent and not
subject to control agreements consisting of (A) payroll accounts, which accounts shall at no time
contain more cash than is necessary to meet the periodic payroll obligations of the Borrower and
its Subsidiaries, (B) accounts with balances up to $10,000,000 in the aggregate, (C) trust
accounts, so long as such trust accounts only contain funds of third parties and (D) accounts, if
any, maintained in connection with employee benefit plans, so long as such accounts contain only
funds required to be maintained by such employee benefit plans.




          (b) Cause the post-closing matters identified on Schedule 6.10 to be completed on or before
the date set forth on Schedule 6.10 for the relevant post-closing matter (which date may be
extended by the Administrative Agent from time to time in its discretion).




SECTION 7. NEGATIVE COVENANTS




          Each Loan Party hereby jointly and severally agrees that, commencing on the Closing Date and
so long as any Loan or other amount is owing to any Lender or the Administrative Agent hereunder,
they shall not, and shall not permit any of its Subsidiaries to, directly or indirectly:




          7.1. Financial Covenants.




          (a) Consolidated Leverage Ratio. Permit, on the last day of any fiscal quarter
beginning with the first fiscal quarter end date following the Closing Date, the Consolidated
Leverage Ratio for the four consecutive fiscal quarters of the Borrower ending with such fiscal quarter
end date to exceed the amount set forth opposite such fiscal quarter below:




	 	 	 
	Fiscal Quarter	 	Consolidated Leverage Ratio
	Q4 2009
	 	7.50
	Q1 2010
	 	7.50
	Q2 2010
	 	6.00
	Q3 2010
	 	4.75
	Q4 2010
	 	3.50
	Q1 2011
	 	2.75
	Q2 2011
	 	2.50
	Q3 2011
	 	2.25
	Q4 2011 and each fiscal quarter thereafter
	 	2.00






51 









 






          (b) Interest Coverage. Permit, on the last day of any fiscal quarter beginning with
the first fiscal quarter end date following the Closing Date, the Interest Coverage Ratio for the
four consecutive fiscal quarters of the Borrower ending with such fiscal quarter end date to be
less than the amount set forth opposite such fiscal quarter below:




	 	 	 
	Fiscal Quarter	 	Interest Coverage Ratio
	Q4 2009
	 	1.25
	Q1 2010
	 	1.25
	Q2 2010
	 	1.50
	Q3 2010
	 	1.75
	Q4 2010
	 	2.50
	Q1 2011 and each fiscal quarter thereafter
	 	3.00






          (c) Capital Expenditures. Permit the aggregate amount of Capital Expenditures made by
the Loan Parties during any fiscal year set forth below to exceed the amount set forth opposite
such fiscal year:




	 	 	 
	 	 	Maximum Capital Expenditure Amount
	Fiscal Year	 	($)
	2010
	 	200,000,000
	2011
	 	215,000,000
	2012
	 	250,000,000
	2013
	 	275,000,000
	2014
	 	300,000,000





; provided, that (a) up to 100% of any such amount referred to above, if not expended in
the fiscal year for which it is permitted, may be carried over for expenditure in the next
succeeding fiscal year and (b) Capital Expenditures made pursuant to this Section during any fiscal
year shall be deemed made, first, in


52 









 






respect of amounts permitted for such fiscal year as provided
above and, second, in respect of amounts carried over from the prior fiscal year pursuant to clause
(a) above.




          7.2. Indebtedness. Create, issue, incur, assume, become liable in respect of or suffer to exist any
Indebtedness, except:





     (a) Indebtedness of any Loan Party pursuant to any Loan Document;




     (b) intercompany Indebtedness incurred pursuant to any Investment permitted by
Section 7.7(f) so long as any such Indebtedness owing by a Loan Party to any Person
other than a Loan Party shall, in each case, be evidenced by an Intercompany
Subordinated Note (other than, and solely to the extent that, such Intercompany
Subordinated Note would be prohibited by any law or regulation of a jurisdiction
where any such Person that is a Foreign Subsidiary is located or organized);




     (c) unsecured Guarantee Obligations incurred in the ordinary course of business
or with respect to Indebtedness permitted pursuant to this Agreement by (i) the
Borrower or any of its Subsidiaries of obligations of the Borrower or any Guarantor
or (ii) any Subsidiary that is not Loan Party of any obligations of a Subsidiary
that is not a Loan Party;




     (d) Indebtedness outstanding on the Closing Date (after giving effect to the
occurrence of the Effective Date) and listed on Schedule 7.2(d);




     (e) Indebtedness (including, without limitation, Capital Lease Obligations)
secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not to
exceed $75,000,000 at any one time outstanding;




     (f) additional Indebtedness of the Borrower or any of its Subsidiaries in an
aggregate principal amount not to exceed (x) with respect to the Loan Parties,
$100,000,000 and (y) with respect to Subsidiaries that are not Loan Parties,
$150,000,000, in each case, at any one time outstanding; provided that the
aggregate principal amount of Indebtedness under clauses (x) and (y) shall not
exceed $200,000,000 at any one time outstanding;




     (g) Indebtedness of the Borrower or any of its Subsidiaries in respect of
workers’ compensation claims, self-insurance obligations, performance, bid and
surety bonds and completion guaranties, in each case in the ordinary course of
business;




     (h) Indebtedness of the Borrower or any of its Subsidiaries arising from the
honoring by a bank or other financial institution of a check, draft or similar
instrument inadvertently drawn by the Borrower or such Subsidiary in the ordinary
course of business against insufficient funds, so long as such Indebtedness is
repaid within five Business Days;




     (i) letters of credit issued for the account of any Group Member (including
Specified Letters of Credit), so long as the sum of (i) the aggregate undrawn face
amount thereof, (ii) any unreimbursed obligations in respect thereof and (iii) the
aggregate amount of pledges and deposits made pursuant to Section 7.3(t) below does
not exceed the LC Basket Limit at any time;



53 









 






     (j) obligations of Chinese Subsidiaries in respect of Chinese Acceptance Notes
in the ordinary course of business;




     (k) Indebtedness of a joint venture (including a joint venture which is treated
as a Subsidiary as a result of FASB Interpretation No. 46 issued by the Financial
Accounting Standards Board) as long as such Indebtedness is non-recourse to the
Borrower or any other Subsidiary of the Borrower in an aggregate principal amount
not to exceed $150,000,000 at any time;




     (l) Indebtedness incurred by any Group Member other than a Loan Party pursuant
to working capital lines of credit or any overdraft line or other cash management
system in an aggregate outstanding principal amount for all such Group Members at
the close of business on any day not to exceed $150,000,000;




     (m) (i) Indebtedness of the Borrower in respect of Permitted Second Lien
Indebtedness in an aggregate principal amount not to exceed $600,000,000,
plus any additional principal amount from interest thereon that is
paid-in-kind, and (ii) Guarantee Obligations of any Guarantor in respect of such
Indebtedness;




     (n) Indebtedness under tax-favored or government-sponsored financing
transactions; provided that (i) the terms of such transactions and the Group Members
party thereto have been approved by the Administrative Agent, (ii) such Indebtedness
is not senior in right of payment to the Obligations, (iii) any Lien on Collateral
arising pursuant to such transactions is subordinated to the Liens on the Collateral
securing the Obligations and (iv) the aggregate principal amount of such
Indebtedness shall not exceed $75,000,000 at any time;




     (o) Indebtedness incurred by any Group Member in order to finance Permitted
Acquisitions;




     (p) Seller Debt and Earn-outs incurred in connection with Permitted
Acquisitions; provided, that such Seller Debt or Earn-outs shall be
subordinated and/or restricted in a manner reasonably satisfactory to the
Administrative Agent at the time they are contemplated to be incurred;




     (q) Indebtedness of a Subsidiary of the Borrower acquired pursuant to a
Permitted Acquisition (or Indebtedness assumed at the time of a Permitted
Acquisition of an asset securing such Indebtedness); provided that (i) such
Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition, and (ii) such Indebtedness does not
constitute debt for borrowed money, it being understood and agreed that Capitalized
Lease Obligations and purchase money Indebtedness shall not constitute debt for
borrowed money for purposes of this subclause (ii);




     (r) contingent obligations with respect to customary indemnification
obligations in favor of sellers in connection with Acquisitions permitted under
Section 7.7 and purchasers in connection with Dispositions permitted under Section
7.5;




     (s) provided that no Event of Default shall have occurred and be continuing or
would occur as a consequence thereof, Indebtedness which serves to refund, replace,
extend repurchase, redeem or refinance any Indebtedness permitted under paragraphs
(d),



54 









 







(e), (f), (o), (p) or (q) above, or any Indebtedness issued to so refund,
replace, extend, repurchase or refinance such Indebtedness, including, in each case,
additional Indebtedness incurred to pay premiums (including tender premiums),
defeasance costs and fees and expenses in connection therewith (collectively, the
“Permitted Refinancing Indebtedness”) at or prior to its respective
maturity; provided, however, that:




     (i) the weighted average life to maturity of such Permitted Refinancing
Indebtedness shall not be shorter than the weighted average life to maturity of such
refinanced Indebtedness at the time of such refunding or refinancing;




     (ii) to the extent such Permitted Refinancing Indebtedness refinances
Indebtedness subordinated or pari passu to the Obligations, such Permitted
Refinancing Indebtedness is subordinated or pari passu to the Obligations at least
to the same extent as the Indebtedness being refunded or refinanced;




     (iii) such Permitted Refinancing Indebtedness shall not be in a principal
amount in excess of the principal amount of, premium, if any, accrued interest on,
and related fees and expenses of, the Indebtedness being refunded, replaced,
extended, repurchased, redeemed or refinanced (including any premium, expenses,
costs and fees incurred in connection with such refund, replacement or refinancing);




     (iv) the obligors in respect of such Permitted Refinancing Indebtedness
(including in their capacities as primary obligor and guarantor) are the same as for
the Indebtedness being refinanced; and




     (v) any Liens securing such Permitted Refinancing Indebtedness are not extended
to any property which does not secure the Indebtedness being refinanced; and




     (t) unsecured Indebtedness and unsecured Guarantee Obligations of any Loan
Party in respect of such unsecured Indebtedness so long as the Net Cash Proceeds
thereof are applied to prepay the Loans in accordance with Section 2.9(a).



          7.3. Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, whether now
owned or hereafter acquired, except:





     (a) Liens for taxes not yet due or that are being contested in good faith by
appropriate proceedings, provided that adequate reserves with respect
thereto (if required by GAAP) are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP (or, in the case of
Foreign Subsidiaries, generally accepted accounting principles in effect from time
to time in their respective jurisdiction of organization);




     (b) landlord’s carriers’, warehousemen’s, mechanics’, materialmen’s,
repairmen’s, supplier, construction or other like Liens in the ordinary course of
business that are not overdue for a period of more than 45 days or that are being
bonded or contested in good faith by appropriate proceedings;




     (c) (i) pledges or deposits made in connection with workers’ compensation,
unemployment insurance and other social security legislation, and (ii) Liens (A) of
a collecting bank arising in the ordinary course of business under Section 4-210 of
the Uniform Commercial Code in effect in the relevant jurisdiction covering only the
items



55 









 







being collected upon or (B) in favor of a banking institution or financial
intermediary, encumbering amounts credited to deposit or securities accounts
(including the right of set-off) arising in the ordinary course of business in
connection with the maintenance of such accounts;




     (d) deposits to secure the performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, surety and appeal bonds, performance
bonds, utility payments and other obligations of a like nature incurred in the
ordinary course of business;




     (e) zoning restrictions, survey exceptions and such matters as an accurate
survey would disclose, mortgage rights, easements, rights-of-way, restrictions and
other similar encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and that do not in any case materially
detract from the value of the property subject thereto or materially interfere with
the ordinary conduct of the business of the Borrower or any of its Subsidiaries;




     (f) Liens in existence on the Closing Date (after giving effect to the
occurrence of the Effective Date) and listed on Schedule 7.3(f) and extensions,
renewals and replacements of any such Liens so long as the principal amount of
Indebtedness or other obligations secured thereby is not increased and so long as
such Liens are not extended to any other property of the Borrower or any of its
Subsidiaries;




     (g) Liens securing Indebtedness of the Borrower or any other Subsidiary
incurred pursuant to Section 7.2(e) to finance the acquisition of fixed or capital
assets; provided that (i) such Liens shall be created within 90 days of the
acquisition of such
fixed or capital assets, (ii) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness and proceeds thereof
and (iii) the amount of Indebtedness secured thereby is not increased and
extensions, renewals and replacements of any such Liens so long as the principal
amount of Indebtedness or other obligations secured thereby is not increased and so
long as such Liens are not extended to any other property of the Borrower or any of
its Subsidiaries;




     (h) Liens created pursuant to the Loan Documents;




     (i) any interest or title of a lessor under any lease entered into by the
Borrower or any other Subsidiary in the ordinary course of its business and covering
only the assets so leased;




     (j) Liens with respect of leases, licenses, sublicenses or subleases granted to
others not interfering in any material respect with the businesses of the Borrower
or any of its Subsidiaries;




     (k) Liens with respect to operating leases not prohibited under this Agreement
and entered into in the ordinary course of business;




     (l) Liens not otherwise permitted by this Section so long as neither (i) the
aggregate outstanding principal amount of the obligations secured thereby nor (ii)
the aggregate fair market value (determined as of the date such Lien is incurred) of
the assets subject thereto exceeds (as to the Borrower and all Subsidiaries)
$50,000,000 at any one



56 









 







time; provided that not more than $35,000,000 of such
basket amount shall be available for Liens securing Indebtedness of the Borrower and
its Subsidiaries;




     (m) Liens on the assets of a Foreign Subsidiary and its Subsidiaries securing
obligations of such Persons that are not prohibited by Section 7.2 so long as the
aggregate outstanding principal amount of the obligations for borrowed money secured
thereby does not exceed (as to all Foreign Subsidiaries) $75,000,000 at any one
time;




     (n) receipt of progress payments and advances from customers in the ordinary
course of business to the extent same creates a Lien on the related inventory and
proceeds thereof;




     (o) Liens on the assets of joint ventures and their Subsidiaries securing
obligations of such Persons that are not prohibited by Section 7.2 so long as such
Liens do not encumber any assets or property of the Borrower or its other
Subsidiaries;




     (p) attachment, judgment or other similar Liens securing judgments or decrees
not constituting an Event of Default under Section 8.1(h) or securing appeal or
other surety bonds related to such judgments or decrees;




     (q) Liens securing obligations (other than obligations representing
Indebtedness for borrowed money) under operating, reciprocal easement or similar
agreements entered into in the ordinary course of business;




     (r) statutory Liens and rights of offset arising in the ordinary course of
business of the Borrower and its Subsidiaries;




     (s) Liens on assets of Foreign Subsidiaries securing Indebtedness of a Foreign
Subsidiary permitted by Sections 7.2(f) and 7.2(k) and securing other obligations
under the agreements governing or relating to such Indebtedness, so long as such
Liens do not encumber the Capital Stock of the Borrower or any of its Subsidiaries;




     (t) pledges or deposits made to support any obligations of the Group Members
(including cash collateral to secure obligations under letters of credit permitted
pursuant to Section 7.2(i)) so long as (without duplication) the sum of (i) the
aggregate undrawn face amount of letters of credit permitted pursuant to Section
7.2(i) above, (ii) any unreimbursed obligations in respect of letters of credit
permitted pursuant to Section 7.2(i) above and (iii) the aggregate amount of such
pledges and deposits does not exceed the limit set forth in Section 7.2(i);




     (u) Liens arising in connection with financing transactions permitted by
Section 7.2(n), provided that such liens do not at any time encumber any property
unless approved by the Administrative Agent and such Liens otherwise comply with
Section 7.2(n);




     (v) Liens on the Collateral (or any portion thereof) securing the obligations
under Permitted Second Lien Indebtedness; provided that such Liens are
subordinated pursuant to the Intercreditor Agreement;




     (w) Liens on property or assets acquired pursuant to a Permitted Acquisition,
or on property or assets of a Subsidiary of the Borrower in existence at the time
such



57 









 







Subsidiary is acquired pursuant to a Permitted Acquisition; provided that (i)
any Indebtedness that is secured by such Liens is permitted to exist under Section
7.2(q), and (ii) such Liens are not incurred in connection with, or in contemplation
or anticipation of, such Permitted Acquisition and do not attach to any other asset
of the Borrower or any of its Subsidiaries and extensions, renewals and replacements
of any such Liens so long as the principal amount of Indebtedness or other
obligations secured thereby is not increased and so long as such Liens are not
extended to any other property of the Borrower or any of its Subsidiaries;




     (x) statutory Liens and Liens granted by any orders in any proceeding in
connection with the CCAA Cases, in each case on any assets of any Canadian
Subsidiary of the Borrower;




     (y) Liens on receivables and customary related assets subject to a Receivable
Financing Transaction; and




     (z) the exchange or transfer within China of Chinese Acceptance Notes by
Chinese Subsidiaries of the Borrower in the ordinary course of business.



          7.4. Fundamental Changes. Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its
property or business, except that:





     (a) any Subsidiary of the Borrower may be merged, consolidated with or into or
transferred to the Borrower (provided that the Borrower shall be the
continuing or
surviving corporation) or with, into or to any Guarantor (provided that
the Guarantor shall be the continuing or surviving corporation or simultaneously
therewith, the continuing corporation shall become a Guarantor);




     (b) any Subsidiary of the Borrower that is not a Loan Party may be merged,
consolidated, amalgamated, liquidated, wound-up, dissolved or all or substantially
all of its property or business Disposed of with, into or to a Subsidiary that is
not a Loan Party;




     (c) any Subsidiary of the Borrower may Dispose of any or all of its assets to
the Borrower or any Guarantor (upon voluntary liquidation or otherwise);




     (d) any Disposition otherwise permitted pursuant to Section 7.5 may be
completed; and




     (e) any Permitted Acquisition otherwise permitted pursuant to Section 7.7 may
be completed.



          7.5. Disposition of Property. Dispose of any of its property, whether now owned or hereafter acquired, or, in the case of
any Subsidiary, issue or sell any shares of such Subsidiary’s Capital Stock to any Person, except:





     (a) the Disposition of obsolete or worn out property or property no longer
useful in the business of the Borrower and its Subsidiaries, in each case in the
ordinary course of business;



58 









 






     (b) the Disposition of inventory or Cash Equivalents in the ordinary course of
business;




     (c) Dispositions permitted by Section 7.4(c), Restricted Payments permitted by
Section 7.6 and Investments permitted by Section 7.7;




     (d) the Disposition or issuance of any Subsidiary’s Capital Stock to the
Borrower or any Guarantor;




     (e) the licensing and cross-licensing arrangements of technology or other
intellectual property in the ordinary course of business;




     (f) the Disposition of any property or assets (i) to any Loan Party and (ii) by
any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan
Party;




     (g) transfers of property as a result of any Recovery Event;




     (h) leases, occupancy agreements and subleases of property in the ordinary
course of business;




     (i) the Disposition by the Borrower and certain of its Subsidiaries of account
receivables of General Motors Corporation, Chrysler LLC and their affiliates and
customary related property to special purpose vehicles established by General Motors
Corporation and Chrysler LLC pursuant to the United States Department of the
Treasury’s Auto Supplier Support Programs;




     (j) the Disposition of receivables and customary related assets (i) in
connection with a Receivables Financing Transaction or (ii) pursuant to factoring
programs on customary market terms for such transactions and with respect to
receivables of, and generated by, Group Members that are not Loan Parties;




     (k) the Disposition for fair market value of certain assets in Sweden related
to the transfer of certain programs to a competitor as previously disclosed to the
Administrative Agent;




     (l) the exchange or transfer within China of Chinese Acceptance Notes by
Chinese Subsidiaries of the Borrower; and




     (m) the Disposition of other property (other than receivables and customary
related assets) having a fair market value not to exceed 5% of Consolidated Total
Tangible Assets in the aggregate during any fiscal year of the Borrower;
provided that the Net Cash Proceeds thereof are applied to prepay the Loans
to the extent required by Section 2.9(b).



          7.6. Restricted Payments. Declare or pay any dividend (other than dividends payable solely in common stock of the
Person making such dividend) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any Capital Stock of the Borrower or any Subsidiary of the Borrower, whether now or
hereafter outstanding, or make any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary of the
Borrower (collectively, “Restricted Payments”), except that (a) any Subsidiary may make Restricted



59 









 






Payments to any Loan Party, (b) any Subsidiary may make Restricted Payments to the Group Member
that is its parent company so long as, in the case of any Restricted Payment made by a Loan Party,
such parent company is also a Loan Party, (c) any Subsidiary may make Restricted Payments with
respect to the Capital Stock of such Subsidiary, provided that each Group Member shareholder of
such Subsidiary receives at least its ratable share thereof,
(d) in accordance with the excess cash paydown provisions
contemplated by the Plan of
Reorganization, the Borrower may make payments with respect to the Series A Preferred Stock in an
aggregate amount not to exceed $50,000,000 and (e) the Borrower may pay cash in lieu of fractional
shares in connection with any conversion of Series A Preferred Stock or warrants in accordance with
its terms, provided that at the time of such cash payment no Default or Event of Default
shall have occurred and be continuing. Notwithstanding the foregoing, the cashless exercise of
stock options granted pursuant to any employee benefit plan shall not be construed as a Restricted
Payment.




          7.7. Investments. Make any Investment except:





     (a) extensions of trade credit in the ordinary course of business;




     (b) Investments in Cash Equivalents;




     (c) Guarantee Obligations permitted by Section 7.2;




     (d) loans and advances to employees or directors of any Group Member in the
ordinary course of business (including for travel, entertainment and relocation
expenses);




     (e) Investments in the business of the Borrower and its Subsidiaries made by
the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment
Deferred Amount;




     (f) intercompany Investments by (i) any Group Member in the Borrower or any
Person that, prior to such investment, is a Guarantor, (ii) by any Subsidiary that
is not a Loan Party in any other Subsidiary that is not a Loan Party, (iii) by any
Loan Party in a Foreign Subsidiary to fund in the ordinary course of business
foreign operations and (iv) by any Loan Party in any Subsidiary that is not a Loan
Party, provided that the aggregate amount of Investments under clause (iv)
in Subsidiaries that are organized under the laws of a Specified Jurisdiction shall
not exceed $250,000,000 at any one time outstanding in the aggregate plus, without
duplication, all cash returns of principal or capital, cash dividends and other cash
returns received by any Loan Party after the date hereof from any Subsidiary that is
organized under the laws of a Specified Jurisdiction;




     (g) Investments consisting of Indebtedness permitted by Section 7.2;




     (h) prepaid expenses and lease, utility, workers, compensation, performance and
other similar deposits made in the ordinary course of business;




     (i) Investments (including debt obligations) received in the ordinary course of
business by the Borrower or any Subsidiary in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement or delinquent
obligations of, and other disputes with, customers and suppliers arising out of the
ordinary course of business;




     (j) Investments in existence on the Closing Date;



60 









 






     (k) Investments in Greenfield Holdings, LLC and Integrated Manufacturing and
Assembly L.L.C. to the extent that such Investments are made in the ordinary course
of a Loan Party’s business, for cash management purposes and not exceeding
$50,000,000 at any one time outstanding plus, without duplication, all cash
returns of principal or capital, cash dividends and other cash returns received by
any Loan Party after the date hereof from Greenfield Holdings, LLC or Integrated
Manufacturing and Assembly L.L.C.;




     (l) the Disposition or contribution by the Borrower and certain of its domestic
Subsidiaries of certain metals and electronics assets to its existing Subsidiaries
consistent with the restructuring plan including in the financial projections; and




     (m) Swap Agreements permitted by Section 7.9;




     (n) Investments in Special Purpose Subsidiaries arising or made under
Receivable Financing Transactions;




     (o) Permitted Acquisitions; and




     (p) in addition to Investments otherwise expressly permitted by this Section,
Investments by the Borrower or any of its Subsidiaries in an aggregate amount not to
exceed $200,000,000 at any one time outstanding.



          7.8. Transactions with Affiliates. Enter into any transaction, including any purchase, sale, lease or exchange of property,
the rendering of any service or the payment of any management, advisory or similar fees, with any
Affiliate (other than transactions among Group Members) unless such transaction (a) is otherwise
permitted under this Agreement, (b) is in the ordinary course of business of the relevant Group’s
Member, upon fair and reasonable terms no less favorable to the relevant Group Member than it would
obtain in a comparable arm’s length transaction with a Person that is not an Affiliate; or (c)
involves any Lender or Agent (or their Affiliates) in its capacity as Lender or Agent under this
Agreement.




          7.9. Swap Agreements. Enter into any Swap Agreement except (a) Swap Agreements entered into to hedge or mitigate
risks to which any Group Member has actual exposure (other than those in respect of Capital Stock
of any Person) and (b) Swap Agreements entered into in order to effectively cap, collar or exchange
interest rates (from fixed to floating rates, from one floating rate to another floating rate or
otherwise) with respect to any interest-bearing liability or investments of any Group Member,
provided that in each case such agreements are not entered into for speculative purposes.




          7.10. Changes in Fiscal Periods. Permit the fiscal year of the Borrower to end on a day other than December 31.




          7.11. Negative Pledge Clauses. Enter into or permit to exist or become effective any agreement that prohibits or limits
(other than a dollar limit, provided that such dollar limit is sufficient in amount to allow at all
times the Liens to secure the obligations under the Loan Documents in full) the ability of any Loan
Party to create, incur, assume or suffer to exist any Lien upon any of its property or revenues,
whether now owned or hereafter acquired, to secure its obligations under the Loan Documents to
which it is a party other than (a) this Agreement and the other Loan Documents, (b) any agreements
governing any purchase money Liens or Capital Lease Obligations otherwise permitted hereby or any
other secured obligation (other than Indebtedness for borrowed money) permitted by Section 7.3(c),
(d), (t), (w) or (y) (in which case, any prohibition or limitation shall only be effective against
(x) in the case of




61 









 







purchase money Liens or Capital Lease Obligations, the assets financed thereby
and proceeds thereof and (y) in the case of other secured obligations, the specific assets subject
to the Lien securing such obligation), (c) the Second Lien Term Loan Documents and any agreement
governing Permitted Second Lien Indebtedness (provided that the prohibition or limitation contained
therein is no less favorable to the Lenders than that which exists in the Second Lien Term Loan
Documents) , any agreement governing any Indebtedness existing as of the Closing Date and any
agreement governing any Permitted Refinancing Indebtedness of such Indebtedness existing as of the
Closing Date (provided that the prohibition or limitation contained therein is no less favorable to
the Lenders than that which exists in the agreement governing such Indebtedness as of the Closing
Date), (d) customary provisions in joint venture agreements and similar agreements that restrict
the transfer of assets of, or equity interests in, joint ventures, (e) customary provisions in any
agreements governing any Receivable Financing Transaction (in which case, any prohibition or
limitation shall only be effective against the assets conveyed thereunder), (f) any agreement
governing Specified Letters of Credit or any Specified Swap Agreement containing provisions not
more restrictive that the provisions of this Agreement and (g) licenses or sublicenses by the
Borrower and its Subsidiaries of intellectual property in the ordinary course of business (in
which case, any prohibition or limitation shall only be effective against the intellectual property
subject thereto).




          7.12. Clauses Restricting Subsidiary Distributions. Enter into or permit to exist or become effective any consensual encumbrance or restriction
on the ability of any Subsidiary of the Borrower to (a) make Restricted Payments in respect of any
Capital Stock of such Subsidiary held by, or pay any Indebtedness owed to, the Borrower or any
other Loan Party, (b) make loans or advances to, or other Investments in, the Borrower or any other
Loan Party or (c) transfer any of its assets to the Borrower or any other Loan Party, except for
such encumbrances or restrictions existing under or by reason of (i) any restrictions existing
under the Loan Documents, the Second Lien Term Loan Documents and any agreement governing Permitted
Second Lien Indebtedness (provided that the prohibition or limitation contained therein is no less
favorable to the Lenders than that which exits in the Second Lien Term Loan Documents), any
agreement governing any Indebtedness existing as of the Closing Date and any agreement governing
any Permitted Refinancing Indebtedness of such Indebtedness existing as of the Closing Date
(provided that the prohibition or limitation contained therein is no less favorable to the Lenders
than that which exists in the agreement governing such Indebtedness as of the Closing Date), (ii)
customary provisions in joint venture agreements and similar agreements that restrict the transfer
of equity interests in joint ventures (in which case such restrictions shall relate only to assets
of, or equity interests in, such joint venture or any holding company which may hold the Capital
Stock of such joint venture), (iii) any restrictions regarding licenses or sublicenses by the
Borrower and its Subsidiaries of intellectual property in the ordinary course of business (in
which case such restriction shall relate only to such intellectual property); (iv) customary
restrictions and conditions contained in agreements relating to the sale of all or a substantial
part of the capital stock or assets of any Subsidiary pending such sale, provided such restrictions
and conditions apply only to the Subsidiary to be sold and such sale is permitted hereunder, (v)
with respect to restrictions described in clause (a) of this Section 7.12, restrictions contained
in agreements governing Indebtedness permitted by Section 7.2(c) hereof; and (vi) with respect to
restrictions described in clause (c) of this Section 7.12, restrictions contained in agreements
governing Indebtedness permitted by Section 7.2(e) (as long as such restrictions apply to the
property financed thereby) and (k) hereof (as long as such restrictions apply only to the assets of
the applicable joint venture).




          7.13. Lines of Business. Enter into any business, either directly or through any Subsidiary, except for those
businesses in which the Borrower and its Subsidiaries are engaged on the date of this Agreement or
that are reasonably related thereto.




          7.14. Use of Proceeds. Use the proceeds of the Loans for purposes other than those described in Section 4.15.





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          7.15. Optional Payments and Modifications in respect of Permitted Second Lien
Indebtedness. Except to the extent permitted by the Intercreditor Agreement, (a) make or offer to make
any payment, prepayment, repurchase or redemption of or otherwise defease or segregate funds with
respect to the Permitted Second Lien Indebtedness other than (i) scheduled payments of interest,
(ii) refinancings thereof to the extent permitted by
Section 7.2 and (iii) in accordance with the excess cash
paydown provisions contemplated by the Plan of Reorganization, payments in an aggregate amount not to exceed $50,000,000 or (b) amend,
modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or
other change to, any of the terms of the Second Lien Term Loan Documents or the documents governing
other Permitted Second Lien Indebtedness (other than any such amendment, modification, waiver or
other change that would extend the maturity or reduce the amount of any payment of principal
thereof or reduce
the rate or extend any date for payment of interest thereon or would otherwise constitute a
refinancing permitted by Section 7.2 and, in each case, is not otherwise materially adverse to the
Lenders).




          7.16. Sale and Leasebacks. Enter into any arrangement with any Person providing for the leasing by any Loan Party of
real or personal property that has been or is to be sold or transferred by such Loan Party to such
Person or to any other Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of such Loan Party unless the Net Cash Proceeds
received by such Loan Party have been used to make a prepayment of the Loans to the extent required
by Section 2.9(b) above.




SECTION 8. EVENTS OF DEFAULT




          8.1. Events of Default. If any of the following events shall occur and be continuing on or after the occurrence of
the Closing Date:





     (a) the Borrower shall fail to pay any principal of any Loan when due in
accordance with the terms hereof; or the Borrower shall fail to pay any interest on
any Loan, or any other amount payable hereunder or under any other Loan Document,
within three Business Days after any such interest or other amount becomes due in
accordance with the terms hereof; or




     (b) any representation or warranty made or deemed made by any Loan Party herein
or in any other Loan Document or that is contained in any certificate, document or
financial or other statement furnished by it at any time under or in connection with
this Agreement or any such other Loan Document shall prove to have been inaccurate
in any material respect on or as of the date made or deemed made; or




     (c) any Loan Party shall default in the observance or performance of any
agreement contained in clause (i) of Section 6.4(a) (with respect to the Borrower
only), Section 6.7(a) or Section 7 of this Agreement or Section 5.5 of the Guarantee
and Collateral Agreement; or




     (d) any Loan Party shall default in the observance or performance of any other
agreement contained in this Agreement or any other Loan Document (other than as
provided in paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent or the Required Lenders to the Borrower; or



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     (e) any Group Member (other than an Immaterial Subsidiary) shall (i) default in
making any payment of any principal of any Indebtedness (including any Guarantee
Obligation, but excluding the Loans) on the scheduled or original due date with
respect thereto; or (ii) default in making any payment of any interest on any such
Indebtedness beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created; or (iii) default in the
observance or performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect of
which default or other event or
condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to
cause, with the giving of notice if required, such Indebtedness to become due prior
to its stated maturity or (in the case of any such Indebtedness constituting a
Guarantee Obligation) to become payable; provided, that a default, event or
condition described in clause (i), (ii) or (iii) of this paragraph (e) shall not at
any time constitute an Event of Default unless, at such time, one or more defaults,
events or conditions of the type described in clauses (i), (ii) and (iii) of this
paragraph (e) shall have occurred and be continuing with respect to Indebtedness the
outstanding principal amount (or the termination value, as applicable) of which
exceeds in the aggregate $35,000,000; or




     (f) (i) the Borrower or any of its Subsidiaries (other than 3% Subsidiaries)
shall commence any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets; or (ii) there shall be
commenced against the Borrower or any of its Subsidiaries (other than 3%
Subsidiaries) any case, proceeding or other action of a nature referred to in clause
(i) above that (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed or undischarged for a period
of 60 days; or (iii) there shall be commenced against the Borrower or any of its
Subsidiaries (other than 3% Subsidiaries) any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets that results in the entry of an
order for any such relief that shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv) the Board of
Directors of the Borrower shall authorize any action set forth in clause (i) above;
or (v) the Borrower or any of its Subsidiaries (other than 3% Subsidiaries) shall
generally not, or shall be unable to, or shall admit in writing its inability to,
pay its debts as they become due; or (vi) or the Borrower or any of its Subsidiaries
(other than 3% Subsidiaries) shall make a general assignment for the benefit of its
creditors; provided that all 3% Subsidiaries that are subject to any of the
proceedings or actions described in clauses (i) through (vi) of this paragraph (f)
shall not at any time contribute in the aggregate more than 5% of Consolidated
Assets or more than 5% of Consolidated Revenues; or




     (g) (i) an ERISA Event shall have occurred; (ii) a trustee shall be appointed
by a United States district court to administer any Single Employer Plan, (iii) the
PBGC shall institute proceedings to terminate any Single Employer Plan(s); (iv) any
Loan Party or any of their respective ERISA Affiliates shall have been notified by
the sponsor of a



64 









 







Multiemployer Plan that it has incurred or will be assessed
Withdrawal Liability to such Multiemployer Plan and such entity does not have
reasonable grounds for contesting such Withdrawal Liability or is not contesting
such Withdrawal Liability in a timely and appropriate manner; or (v) any other event
or condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (v) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a Material
Adverse Effect; or




     (h) one or more judgments or decrees shall be entered against any Group Member
involving in the aggregate a liability (excluding any amounts paid or covered by
insurance as to which the relevant insurance company has not denied coverage) of
$35,000,000 or more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry thereof;
or




     (i) any of the Loan Documents shall cease, for any reason, to be in full force
and effect, or any Loan Party or any Affiliate of any Loan Party shall so assert, or
any Liens created by any Loan Documents shall cease to be enforceable and of the
same effect and priority purported to be created thereby other than by reason of the
release thereof in accordance with the terms of the Loan Documents; or




     (j) a Change of Control shall have occurred; or




     (k) the Intercreditor Agreement shall cease, for any reason, to be in full
force and effect or the Liens securing the obligations under the Second Lien Term
Loan Agreement shall cease, for any reason, to be validly subordinated to the Liens
securing the Obligations, or any Loan Party or any Affiliate of any Loan Party shall
assert any of the foregoing;


then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or
(ii) of paragraph (f) above with respect to the Borrower, automatically the Commitments shall
immediately terminate and the Loans (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including, without limitation, all amounts to be
paid pursuant to Section 2.6(a)) shall immediately become due and payable, and (B) if such event is
any other Event of Default, either or both of the following actions may be taken: (i) with the
consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately terminate; and (ii) with the
consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans (with accrued
interest thereon) and all other amounts owing under this Agreement and the other Loan Documents to
be due and payable forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this Section, presentment, demand, protest and all other notices of
any kind are hereby expressly waived by the Borrower.




SECTION 9. THE AGENTS




          9.1. Appointment. Each Lender hereby irrevocably designates and appoints the Administrative Agent as the
agent and the Collateral Agent as the collateral agent of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes each of the Administrative Agent
and the Collateral Agent, in its capacity as such, to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such powers and



65 









 







perform
such duties as are expressly delegated to the Administrative Agent and Collateral Agent, as
applicable, by the terms of this Agreement and the other Loan Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent and the Collateral Agent shall not have any
duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other
Loan Document or otherwise exist against the Administrative Agent or the Collateral Agent, as
applicable.




          9.2. Delegation of Duties. Each of the Administrative Agent and the Collateral Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such duties. Neither
Agent shall be responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care. The exculpatory provisions of this Agreement and of the other
Loan Documents shall apply to any such agent or attorney-in-fact and to their Related Parties (as
defined below).




          9.3. Exculpatory Provisions. Neither any Agent nor any of its officers, directors, employees, agents, advisors,
attorneys-in-fact, controlling persons or affiliates (collectively, the “Related Parties”) shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except to the extent that any of the
foregoing are found by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from its or such Person’s own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements, representations or
warranties made by any Loan Party or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document referred to or provided
for in, or received by the Agents under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or for any failure of any Loan Party a party thereto to
perform its obligations hereunder or thereunder. The Agents shall not be under any obligation to
any Lender to ascertain or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party.




          9.4. Reliance by Agents. The Agents and their Related Parties shall be entitled to rely, and shall be fully
protected in relying, upon any instrument, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, facsimile or email message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel (including counsel to the
Borrower), independent accountants and other experts selected by the Agents. The Agents and their
Related Parties may deem and treat the payee of any Note as the owner thereof for all purposes
unless a written notice of assignment, negotiation or transfer thereof shall have been filed with
the Administrative Agent. The Agents and their Related Parties shall be fully justified in failing
or refusing to take any action under this Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders (or, if so specified by this
Agreement, all Lenders or any other instructing group of Lenders specified by this Agreement) as it
deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any
and all liability and expense that may be incurred by it by reason of taking or continuing to take
any such action. The Agents and their Related Parties shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders (or, if so specified by this Agreement, all
Lenders or any other instructing group of Lenders specified by this Agreement), and such request
and



66 









 






any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and
all future holders of the Loans.




          9.5. Notice of Default. No Agent shall be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default unless such Agent has received notice from a Lender or the Borrower referring to
this Agreement, describing such Default or Event of Default and stating that such notice is a
“notice of default”. In the event that an Agent receives such a notice, such Agent shall give
notice thereof to the Lenders. The Agents shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by
this Agreement, all Lenders or any other instructing group of Lenders specified by this Agreement);
provided that unless and until the Agents shall have received such directions, the Agents may (but
shall not be obligated to) take such action, or refrain from taking such action, with respect to
such Default or Event of Default as they shall deem advisable in the best interests of the Lenders.




          9.6. Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges that neither the Agents nor any of their Related Parties
have made any representations or warranties to it and that no act by the any Agent hereafter taken,
including any review of the affairs of a Loan Party or any affiliate of a Loan Party, shall be
deemed to constitute any representation or warranty by any Agent to any Lender. Each Lender
represents to the Agents that it has, independently and without reliance upon any Agent or any
other Lender, and based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property, financial and other
condition and creditworthiness of the Loan Parties and their affiliates and made its own decision
to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this Agreement and the
other Loan Documents, and to make such investigation as it deems necessary to inform itself as to
the business, operations, property, financial and other condition and creditworthiness of the Loan
Parties and their affiliates. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Agents hereunder, the Agents shall not have any duty or
responsibility to provide any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan
Party or any affiliate of a Loan Party that may come into the possession of the Agents or any of
its officers, directors, employees, agents, advisors, attorneys-in-fact or affiliates.




          9.7. Indemnification. The Lenders agree to indemnify each Agent and its Related Parties (each, an “Agent
Indemnitee”) (to the extent not reimbursed by the Borrower and without limiting the obligation of
the Borrower to do so), ratably according to their respective Outstanding Percentages in effect on
the date on which indemnification is sought under this Section (or, if indemnification is sought
after the date upon which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with such Outstanding Percentages immediately prior to such date),
from and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind (including reasonable attorneys fees
and expenses) whatsoever that may at any time (whether before or after the payment of the Loans) be
imposed on, incurred by or asserted against such Agent Indemnitee in any way relating to or arising
out of, the Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by such Agent Indemnitee under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent Indemnitee’s gross negligence or willful



67 









 






misconduct. The agreements in this Section shall survive the payment of the Loans and all other
amounts payable hereunder.




          9.8. Agent in Its Individual Capacity. Each Agent and its affiliates may make loans to, accept deposits from and generally engage
in any kind of business with any Loan Party as though such Agent were not an Agent. With respect
to its Loans made or renewed by it, each Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same as though it were
not an Agent, and the terms “Lender” and “Lenders” shall include each Agent in its individual
capacity.




          9.9. Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 10 days’ notice to the
Lenders and the Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term “Administrative Agent” shall
mean such successor agent effective upon such appointment and approval, and the former
Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent has accepted
appointment as Administrative Agent by the date that is 10 days following a retiring Administrative
Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless
thereupon become effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. After any retiring Administrative Agent’s resignation as
Administrative Agent, the provisions of this Section 9 and of Section 10.5 shall continue to inure
to its benefit. The Administrative Agent may in its discretion resign as Collateral Agent at any
time it resigns as Administrative Agent.




          9.10. Execution of Loan Documents. The Lenders hereby empower and authorize the Agents, on behalf of the Lenders, to execute
and deliver to the Loan Parties the other Loan Documents and all related agreements, certificates,
documents, or instruments as shall be necessary or appropriate to effect the purposes of the Loan
Documents. Each Lender agrees that any action taken by the Agents or the Required Lenders (or any
other instructing group of Lenders specified by this Agreement) in accordance with the terms of
this Agreement or the other Loan Documents, and the exercise by the Agents or the Required Lenders
(or any other instructing group of Lenders specified by this Agreement) of their respective powers
set forth therein or herein, together with such other powers that are reasonably incidental
thereto, shall be binding upon all of the Lenders.




          9.11. Collateral Agent. (a) The provisions of Section 9 that apply to the Administrative Agent shall apply,
mutatis mutandis, to the Collateral Agent and to any successor Collateral Agent, as applicable;
provided that, notwithstanding anything herein to the contrary, the Collateral Agent shall have the
right to appoint a successor to itself as Collateral Agent and without the consent of any Lender.




          (b) The Collateral Agent is authorized on behalf of all the Lenders, without the necessity of
any notice to or further consent from the Lenders, from time to time to take any action with
respect to any Collateral or the Loan Documents which may be necessary to perfect and maintain a
perfected security interest in and Liens upon the Collateral granted pursuant to the Loan
Documents. Except for the safe custody of any Collateral in its possession and the accounting for
moneys actually received by it hereunder or under any of the other Loan Documents, the Collateral
Agent shall not have any duty as to any Collateral, as to ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, trades or other matters relative to any
Collateral, whether or not the Collateral Agent is deemed to have knowledge of such matters, or as
to taking of any necessary steps to preserve



68 









 






rights against any parties or any other rights
pertaining to any Collateral (including the filing of UCC Financing and Continuation Statements).
The Collateral Agent shall be deemed to have exercised appropriate and due care in the custody and
preservation of any Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which other collateral agents accord similar property.




          (c) Each of the Administrative Agent and the Collateral Agent, in its capacity as an agent
under the Intercreditor Agreement, shall be entitled to all right, privileges, protections,
immunities, benefits and indemnities provided to the Administrative Agent under this Section 9.




SECTION 10. MISCELLANEOUS




          10.1. Amendments and Waivers. (a) Neither this Agreement, any other Loan Document, nor any terms hereof or thereof may
be amended, supplemented or modified except in accordance with the provisions of this Section 10.1.
The Required Lenders and each Loan Party party to the relevant Loan Document may, or, with the
written consent of the Required Lenders, the Administrative Agent and each Loan Party party to the
relevant Loan Document may, from time to time, (a) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of adding any provisions to
this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or
of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as the
Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of this Agreement or the other Loan Documents or any Default or Event of
Default and its consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the final scheduled
date of maturity of any Loan, extend the scheduled date of any principal amortization payment in
respect of any Loan, reduce the stated rate of any interest or fee payable hereunder (except (x) in
connection with the waiver of applicability of any post-default increase in interest rates (which
waiver shall be effective with the consent of the Required Lenders), (y) in connection with the
waiver or extension of any mandatory prepayment hereunder, and (z) that any amendment or
modification of defined terms used in the financial covenants in this Agreement shall not
constitute a reduction in the rate of interest or fees for purposes of this clause (i)) or extend
the scheduled date of any payment thereof, or increase the amount or extend the expiration date of
any Lender’s Commitment, in each case without the written consent of each Lender directly affected
thereby; (ii) eliminate or reduce the voting rights of any Lender under this Section 10.1 without
the written consent of such Lender; (iii) reduce any percentage specified in the definition of
Required Lenders or consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents, in each case without the written
consent of all Lenders; (iv) amend, modify or waive any provision of Section 9 or any other
provision of any Loan Document that affects the Administrative Agent without the written consent of
the Administrative Agent; or (v) release all or substantially all of the Collateral securing the
Obligations or release all or substantially all of the Guarantors from their obligations under the
Guarantee and Collateral Agreement, in each case without the
consent of each Lender. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders,
the Administrative Agent and all future holders of the Loans. In the case of any waiver, the Loan
Parties, the Lenders and the Administrative Agent shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event of Default waived
shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right consequent thereon.




          (b) Notwithstanding the foregoing, the Administrative Agent may amend or supplement the
Intercreditor Agreement and the Security Documents without the consent of any Lender or the
Required Lenders (but with the consent of the Borrower to the extent required under the




69 









 







Intercreditor Agreement and the Security Documents) to cure any ambiguity, defect or inconsistency
in the Intercreditor Agreement or the Security Documents.




          (c) The Borrower shall be permitted to replace any Lender that requests any payment under
Section 2.16 or 2.17(a) or that does not consent to any proposed amendment, supplement,
modification, consent or waiver of any provision of this Agreement or any other Loan Document that
requires the consent of each of the Lenders or each of the Lenders affected thereby (so long as the
consent of the Required Lenders has been obtained), with a replacement financial institution;
provided that (i) such replacement does not conflict with any Requirement of Law, (ii) the
replacement financial institution shall purchase, at par, all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement, (iii) the Borrower shall be liable to such
replaced Lender under Section 2.18 if any Eurodollar Loan owing to such replaced Lender shall be
purchased other than on the last day of the Interest Period relating thereto, (iv) the replacement
financial institution shall be reasonably satisfactory to the Administrative Agent, (v) the
replaced Lender shall be obligated to make such replacement in accordance with the provisions of
Section 10.6 (provided that the Borrower shall be obligated to pay the processing and
recordation fee referred to therein) and (vi) any such replacement shall not be deemed to be a
waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have
against the replaced Lender.




          (d) Notwithstanding the foregoing, this Agreement may be amended (x) with the written consent
of the Administrative Agent, the Borrower and the Lenders providing the relevant Replacement Term
Loans (as defined below) to permit the refinancing of all or a portion of the Loans outstanding
hereunder (“Refinanced Terms Loans”) with a replacement term loan tranche hereunder which
shall be Loans hereunder (“Replacement Term Loans”); provided that (i) the
aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal
amount of such Refinanced Term Loans, (ii) the weighted average life to maturity of such
Replacement Term Loans shall not be shorter than the weighted average life to maturity of such
Refinanced Term Loans at the time of such refinancing and (iii) all other terms applicable to such
Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders
providing, such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except
to the extent necessary to provide for covenants and other terms applicable to any period after the
latest final maturity of any Loans in effect immediately prior to such refinancing and (y) with the
written consent of the Administrative Agent, the Borrower and the Lenders providing the relevant
Replacement Revolving Loans (as defined below) to permit the refinancing of any Refinanced Term
Loans with a revolving facility hereunder (“Replacement Revolving Facility”);
provided that (i) the aggregate principal amount of such Replacement Revolving Facility
shall not exceed the aggregate principal amount of such Refinanced Term Loans, (ii) the final
maturity date of such Replacement Revolving Facility shall be no earlier than the Maturity Date of
the Refinanced Term Loans, (iii) the Replacement Revolving Facility shall be fully drawn on the
closing date thereof and the proceeds of the Replacement Revolving Facility shall be used to repay
the outstanding Refinanced Term Loans, and (iv) the Replacement Revolving Facility shall be on
terms and pursuant to documentation to
be determined by the Borrower and the Persons willing to provide such Replacement Revolving
Facility, provided that (A) to the extent such terms and documentation are not consistent
with the Facility (other than with respect to pricing) they shall be reasonably satisfactory to the
Administrative Agent and (B) if the Applicable Margin (which term for purposes of this Section
10.1(d) shall include any upfront fees payable by the Borrower to the lenders under the Facility or
the Replacement Revolving Facility, as applicable, in the primary syndication thereof (with such
upfront fees being equated to interest based on assumed three-year life to maturity)) relating to
any Replacement Revolving Facility exceeds the Applicable Margin relating to the Refinanced Term
Loans immediately prior to the refinancing thereof, the Applicable Margin relating to the Facility
shall be adjusted to equal the Applicable Margin relating to such Replacement Revolving Facility.




70 









 








          (e) In addition, notwithstanding the foregoing, this Agreement, including this Section 10.1,
and the other Loan Documents may be amended (or amended and restated) pursuant to Section 2.20 in
order to add any Incremental Facility to this Agreement and (a) to permit the extensions of credit
from time to time outstanding thereunder and the accrued interest and fees in respect thereof to
share ratably in the benefits of this Agreement (including the rights of the lenders under
Incremental Facility to share ratably with the Facility in prepayments pursuant to Sections 2.8 and
2.9), the Guaranty and Collateral Agreement and the other Loan Documents with the Loans and the
accrued interest and fees in respect thereof, (b) to include appropriately the Lenders holding such
credit facility in any determination of the Required Lenders and (c) to amend other provision of
the Loan Documents so that the Incremental Facility is appropriately incorporated (including this
Section 10.1).




          10.2. Notices. All notices, requests and demands to or upon the respective parties hereto to be effective
shall be in writing (including by telecopy), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when received,
addressed as follows in the case of the Borrower and the Administrative Agent, and as set forth in
an administrative questionnaire delivered to the Administrative Agent in the case of the Lenders,
or to such other address as may be hereafter notified by the respective parties hereto:




	 	 	 	 	 
	 

	 	The Borrower:
	 	Lear Corporation
	 

	 	 	 	21557 Telegraph Road
	 

	 	 	 	Southfield, Michigan 48033
	 

	 	 	 	Attention: Shari L. Burgess
	 

	 	 	 	Telecopy: (248) 447-1593
	 

	 	 	 	Telephone: (248) 447-1580
	 

	 	 	 	Email: sburgess@lear.com
	 
	 	 	 	 
	 

	 	 	 	With copies to:
	 
	 	 	 	 
	 

	 	 	 	Lear Corporation
	 

	 	 	 	21557 Telegraph Road
	 

	 	 	 	Southfield, Michigan 48033
	 

	 	 	 	Attention: Terrence B. Larkin
	 

	 	 	 	Telecopy: (248) 447-5126
	 

	 	 	 	Telephone: (248) 447-5123
	 

	 	 	 	Email: TLarkin@lear.com
	 
	 	 	 	 
	 

	 	 	 	With copies to (which shall not constitute
a notice hereunder):
	 
	 	 	 	 
	 

	 	 	 	Winston & Strawn LLP
	 

	 	 	 	35 West Wacker Drive
	 

	 	 	 	Chicago, IL 60601-9703
	 

	 	 	 	Telecopy: (312) 558-5989
	 

	 	 	 	Telephone: (312) 558-5700
	 

	 	 	 	Email: CBoehrer@winston.com
	 
	 	 	 	 
	 

	 	Administrative Agent or

Collateral Agent:
	 	JPMorgan Chase Bank, N.A.
	 
	 	 	 	 
	 

	 	 	 	Attention: Douglas Jenks






71 









 






	 	 	 	 	 
	 

	 	 	 	Telecopy: (212) 622-4557
	 

	 	 	 	Telephone: (212) 622-4521
	 

	 	 	 	Email: douglas.jenks@chase.com
	 
	 	 	 	 
	 

	 	 	 	With copies to:
	 
	 	 	 	 
	 

	 	 	 	JPMorgan Chase Bank, N.A.
	 

	 	 	 	Richard Duker
	 

	 	 	 	Telecopy: (212) 270-5100
	 

	 	 	 	Telephone: (212) 270-3057
	 

	 	 	 	Email: richard.duker@jpmorgan.com
	 
	 	 	 	 
	 

	 	 	 	JPMorgan Chase Bank, N.A.
	 

	 	 	 	Attention: Goh Siew Tan
	 

	 	 	 	Telecopy: (212) 622-4556
	 

	 	 	 	Telephone: (212) 622-4575
	 

	 	 	 	Email: gohsiew.tan@jpmorgan.com
	 
	 	 	 	 
	 

	 	 	 	1111 Fannin Street, Floor 10
	 

	 	 	 	Houston, TX 77002
	 

	 	 	 	Attention: Alice Telles
	 

	 	 	 	Telecopy: (713) 750-2938
	 

	 	 	 	Telephone: (713) 750-7941
	 

	 	 	 	Email: alice.h.telles@jpmchase.com





provided that any notice, request or demand to or upon the Agents or the Lenders shall not
be effective until received.




          Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Section 2 unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications.




          10.3. No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent,
the Collateral Agent or any Lender, any right, remedy, power or privilege hereunder or under the
other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.




          10.4. Survival of Representations and Warranties. All representations and warranties made hereunder, in the other Loan Documents and in any
document, certificate or statement delivered pursuant hereto or in connection herewith shall
survive the execution and delivery of this Agreement and the making of the Loans and other
extensions of credit hereunder.




          10.5. Payment of Expenses and Taxes. The Borrower agrees (a) to pay or reimburse each Agent for all its reasonable,
out-of-pocket costs and expenses incurred in connection with the




72 









 







development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement, the other Loan
Documents and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and thereby, including the
reasonable fees and disbursements of counsel and any financial advisor or third party consultants
or appraisers to and each Agent and filing and recording fees and expenses, with statements with
respect to the foregoing to be submitted to the Borrower prior to the Closing Date (in the case of
amounts to be paid on the Closing Date) and from time to time thereafter on such other periodic
basis as each Agent shall deem appropriate, (b) to pay or reimburse each Lender and each Agent for
all its reasonable out-of-pocket costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, including in connection with any work-out,
restructuring, forbearance or other amendment providing relief to the Borrower, the other Loan
Documents and any such other documents related thereto, including the reasonable fees and
disbursements of counsel and any financial advisor or third party consultants or appraisers to each
Agent and the reasonable fees and disbursements of counsel to the several Lenders; provided
that, in the case of clauses (a) and (b), the Borrower shall not be obligated to so reimburse for
more than one law firm (and, in addition to such law firm, any local counsel engaged in each
relevant jurisdiction by such law firm) as counsel for the Lenders and the Agents, (c) to pay,
indemnify, and hold each Lender and each Agent harmless from, any and all recording and filing
fees, if any, that may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents related thereto, and (d) to pay,
indemnify, and hold each Lender and each Agent and their respective officers, directors, employees,
affiliates, agents, advisors, trustees and controlling persons (each, an “Indemnitee”) harmless
from and against any and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever arising out of
any litigation, investigation or proceeding with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and any such other
documents and instruments referred to therein, including any of the foregoing relating to the use
of proceeds of the Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of any Group Member or any of the Properties and the
reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by
any Indemnitee against any Loan Party under any Loan Document (all the foregoing in this clause
(d), collectively, the “Indemnified Liabilities”), provided, that the Borrower shall have no
obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent
such Indemnified Liabilities are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct
of such Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law,
the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives
and agrees to cause its Subsidiaries to waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee. All amounts due under this Section
10.5 shall be payable not later than 10 days after a reasonably detailed written demand therefor.
Statements payable by the Borrower pursuant to this Section 10.5 shall be submitted to Shari
Burgess (Telecopy No. (248) 447-1593; Telephone No. 248-447-1580; and Email: sburgess@lear.com), at
the address of the Borrower set forth in Section 10.2, or to such other Person or address as may be
hereafter designated by the Borrower in a written notice to the Administrative Agent. The
agreements in this Section 10.5 shall survive repayment of the Loans and all other amounts payable
hereunder.




          10.6. Successors and Assigns; Participations and Assignments. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that (i) the
Borrower may not assign or otherwise transfer



73 









 






any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void), (ii) no Lender may assign or otherwise transfer its
rights or obligations hereunder except in accordance with this Section and (iii) no Lender may
assign or otherwise transfer its rights or obligations hereunder to any Loan Party or any of its
Affiliates.




          (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below and subject to
paragraph (a)(iii) above, any Lender may assign to one or more Eligible Assignees (each, an
“Assignee”) all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitments and the Loans at the time owing to it) with the prior written
consent of the Administrative Agent, provided that no consent of the Administrative Agent shall be
required for an assignment of all or any portion of a Loan to a Lender, an affiliate of a Lender or
an Approved Fund; and



          (ii) Assignments shall be subject to the following additional conditions:





     (A) except in the case of an assignment to a Lender, an affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s
Commitments, the amount of the Commitments or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000
unless the Administrative Agent otherwise consents;




     (B) (1) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500 and (2) the assigning Lender shall have paid in full any amounts owing by it to the
Administrative Agent; and




     (C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an administrative questionnaire in which the Assignee designates one or more credit
contacts to whom all syndicate-level information (which may contain material non-public
information about the Borrower and its Affiliates and their related parties or their
respective securities) will
be made available and who may receive such information in accordance with the
assignee’s compliance procedures and applicable laws, including Federal and state
securities laws.




     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below,
from and after the effective date specified in each Assignment and Assumption the Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.16, 2.17, 2.18 and
10.5). Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 10.6 shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in
accordance with and to the extent permitted by paragraph (c) of this Section.




     (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans owing to, each Lender pursuant to the



74 









 







terms hereof from time to time (the “Register”). The entries in the Register shall
be conclusive, and the Borrower, the Administrative Agent and the Lenders shall treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.




     (v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an Assignee, the Assignee’s completed administrative questionnaire
(unless the Assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.



          (c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell
participations to one or more banks or other entities (a “Participant”) in all or a portion
of such Lender’s rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it); provided that (A) such Lender’s obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant
to which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement may provide that such Lender will
not, without the consent of the Participant, agree to any amendment, modification or waiver that
(1) requires the consent of each Lender directly affected thereby pursuant to the proviso to the
second sentence of Section 10.1 and (2) directly affects such Participant. Subject to paragraph
(c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.16, 2.17 and 2.18 to the same extent as if it were a Lender and had acquired
its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.7(b) as though it were a Lender,
provided such Participant shall be subject to Section 10.7(a) as though it were a Lender.





     (ii) A Participant shall not be entitled to receive any greater payment under Section
2.16, 2.17 or 2.18 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower’s prior written consent. Any Participant
that is a Non-U.S. Lender shall not be entitled to the benefits of Section 2.17 unless such
Participant complies with Section 2.17(d).




     (iii) In the event that any Lender sells a participation in a Loan, such Lender shall,
acting solely for this purpose as an agent of the Borrower, maintain a register on which it
enters the name and address of all participants in the Loans held by it and the principal
amount (and stated interest thereon) of the portion of the Loan which is the subject of the
participation (the “Participation Register”). A Loan may be participated in whole
or in part only by registration of such participation on the Participation Register. Any
transfer of such participation may be effected only by the Registration of such transfer on
the Participation Register. The entries in the Participation Register shall be conclusive
absent manifest error and such Lender shall treat such participants whose name is recorded
in the Participation Register as the owner of such



75 









 







participation for all purposes of this
Agreement, notwithstanding any notice to the contrary. The Participation Register shall be
available for inspection by the Administrative Agent at any reasonable time upon reasonable
prior notice.



          (d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or Assignee for such Lender as a party hereto.




          (e) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue
Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph
(d) above.




          (f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it
may have funded hereunder to its designating Lender without the consent of the Borrower or the
Administrative Agent and without regard to the limitations set forth in Section 10.6(b) (but with
regard to the requirements set forth in Section 10.6(b)(iv)). Each of the Borrower, each Lender
and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or
join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for
one year and one day after the payment in full of the latest maturing commercial paper note issued
by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender
hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost,
damage or expense arising out of its inability to institute such a proceeding against such Conduit
Lender during such period of forbearance.




          10.7. Adjustments; Set-off. (a) Except to the extent that this Agreement, any other Loan Document or a court order
expressly provides for payments to be allocated to a particular Lender or Lenders (including
assignments made pursuant to Section 10.6), if any Lender (a “Benefited Lender”) shall, at any
time after the Loans and other amounts payable hereunder shall immediately become due and payable
pursuant to Section 8, receive any payment of all or part of the Obligations owing to it, or
receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, or
otherwise), in a greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of the Obligations owing to such other Lender, such Benefited Lender
shall purchase for cash from the other Lenders a participating interest in such portion of the
Obligations owing to each such other Lender, or shall provide such other Lenders with the benefits
of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess
payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if
all or any portion of such excess payment or benefits is thereafter recovered from such Benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest.




          (b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to the Borrower or the Guarantors, any such notice being
expressly waived by the Borrower and the Guarantors to the extent permitted by applicable law, upon
any Obligations becoming due and payable by the Borrower or the Guarantors hereunder (whether at
the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against
such Obligations any and all deposits (general or special, time or demand, provisional or final but
not any trust or fiduciary account), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured
or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for
the credit or the account of the Borrower



76 









 






or the Guarantors, as the case may be. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and
application made by such Lender, provided that the failure to give such notice shall not
affect the validity of such setoff and application.




          10.8. Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any
number of separate counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed signature page of this Agreement
by email or facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the parties shall be
lodged with the Borrower and the Administrative Agent.




          10.9. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.




          10.10. Integration. This Agreement and the other Loan Documents represent the entire agreement of the Loan
Parties, the Administrative Agent, the Collateral Agent and the Lenders with respect to the subject
matter hereof and thereof, and there are no promises, undertakings, representations or warranties
by the Administrative Agent, the Collateral Agent, or any Lender relative to the subject matter
hereof not expressly set forth or referred to herein or in the other Loan Documents.




          10.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




          10.12. Submission To Jurisdiction; Waivers. Each Loan Party hereby irrevocably and unconditionally:





     (a) submits for itself and its property in any legal action or proceeding
relating to this Agreement and the other Loan Documents to which it is a party, or
for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of (i) any State or Federal court of competent
jurisdiction sitting in New York County, New York; and (ii) appellate courts from
any thereof;




     (b) consents that any such action or proceeding may be brought in such courts
and waives any objection that it may now or hereafter have to the venue of any such
action or proceeding in any such court or that such action or proceeding was brought
in an inconvenient court and agrees not to plead or claim the same;




     (c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Loan Party at its
address set forth in Section 10.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;




     (d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to sue in any
other jurisdiction; and



77 









 






     (e) waives, to the maximum extent not prohibited by law, any right it may have
to claim or recover in any legal action or proceeding referred to in this Section
any special, exemplary, punitive or consequential damages.



          10.13. Acknowledgements. Each Loan Party hereby acknowledges that:





     (a) it has been advised by counsel in the negotiation, execution and delivery
of this Agreement and the other Loan Documents;




     (b) none of the Administrative Agent, the Collateral Agent nor any Lender has
any fiduciary relationship with or duty to any Loan Party arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent, the Collateral Agent and Lenders, on one
hand, and the Loan Parties, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor; and




     (c) no joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby among the Lenders
or among the Loan Parties and the Lenders.



          10.14. Releases of Guarantees and Liens. (a)Notwithstanding anything to the contrary contained herein or in any other Loan Document,
each of the Administrative Agent and the Collateral Agent is hereby irrevocably authorized by each
Lender (without requirement of notice to or consent of any Lender except as expressly required by
Section 10.1) to take any action requested by the Borrower having the effect of releasing, or
subordinating any Lien on, any Collateral or guarantee obligations (i) to the extent necessary to
permit consummation of any transaction not prohibited by any Loan Document or that has been
consented to in accordance with Section 10.1 or (ii) under the circumstances described in paragraph
(b) below.




          (b) At such time as the Loans and the other obligations under the Loan Documents (other than
obligations under or in respect of Specified Letters of Credit and Specified Swap Agreements and
any contingent indemnification obligations) shall have been paid in full, the Collateral shall be
released from the Liens created by the Loan Documents, and all obligations related thereto (other
than those expressly stated to survive such termination) of the Administrative Agent, the
Collateral Agent and each Loan Party shall terminate, all without delivery of any instrument or
performance of any act by any Person.




          10.15. Confidentiality. Each of the Administrative Agent and each Lender agrees to keep confidential all non-public
information provided to it by any Loan Party, the Administrative Agent or any Lender pursuant to or
in connection with this Agreement that is designated by the provider thereof as confidential;
provided that nothing herein shall prevent the Administrative Agent or any Lender from disclosing
any such information (a) to the Administrative Agent, any other Lender or any affiliate thereof,
(b) subject to an agreement to comply with the provisions of this Section, to any actual or
prospective Transferee or any direct or indirect counterparty to any Swap Agreement (or any
professional advisors to such counterparty), (c) to its employees, officers, directors, agents,
attorneys, accountants and other professional advisors or those of any of its affiliates, provided
that such Persons have been advised of the confidentiality provisions hereof and are subject
thereto, (d) upon the request or demand of any Governmental Authority, (e) in response to any order
of any court or other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection with any litigation or
similar proceeding, (g) that has been publicly disclosed, (h) to the National Association of
Insurance Commissioners or any similar organization or any nationally



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recognized rating agency that
requires access to information about a Lender’s investment portfolio in connection with ratings
issued with respect to such Lender, or (i) in connection with the exercise of any remedy hereunder
or under any other Loan Document.




          Each Lender acknowledges that information furnished to it pursuant to this Agreement or the
other Loan Documents may include material non-public information concerning the Borrower and its
Affiliates and their related parties or their respective securities, and confirms that it has
developed compliance procedures regarding the use of material non-public information and that it
will handle such material non-public information in accordance with those procedures and applicable
law, including Federal and state securities laws.




          All information, including requests for waivers and amendments, furnished by the Borrower or
the Administrative Agent pursuant to, or in the course of administering, this Agreement or the
other Loan Documents will be syndicate-level information, which may contain material non-public
information about the Borrower and its Affiliates and their related parties or their respective
securities. Accordingly, each Lender represents to the Borrower and the Administrative Agent that
it has identified in its administrative questionnaire a credit contact who may receive information
that may contain material
non-public information in accordance with its compliance procedures and applicable law,
including Federal and state securities laws.




          10.16. WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.




          10.17. USA Patriot Act. Each Lender hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”),
it is required to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information that will allow
such Lender to identify the Borrower in accordance with the Patriot Act.




          10.18. Effectiveness. This Agreement shall become effective upon the execution and
delivery of this Agreement by the Borrower, the Administrative Agent and each Person listed on
Schedule 1.1A, provided that the provisions of Sections 6, 7 and 8 shall not apply, and shall be of
no force and effect, prior to the occurrence of the Closing Date.



[Remainder of page intentionally left blank]




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          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and year first above written.




	 	 	 	 	 
	 	LEAR CORPORATION

 	 
	 	By:  	/s/ Matthew J. Simoncini	 
	 	 	Name:  	Matthew J. Simoncini	 
	 	 	Title:  	Sr. VP, and Chief Financial Officer	 



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	 	JPMORGAN CHASE BANK, N.A.,

as Administrative Agent and Collateral Agent and as a

Lender

 	 
	 	By:  	/s/ Richard W. Duker	 
	 	 	Name:  	RICHARD W. DUKER	 
	 	 	Title:  	MANAGING DIRECTOR	 



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	 	BARCLAYS BANK PLC, as Documentation Agent and as a

Lender

 	 
	 	By:  	/s/ R.S.	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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	 	Citigroup Global Markets Inc., as a Lender

 	 
	 	By:  	/s/ Shapleigh B. Smith	 
	 	 	Name:  	SHAPLEIGH B. SMITH	 
	 	 	Title:  	Managing Director	 



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	 	UBS Loan Finance LLC, as a Lender

 	 
	 	By:  	/s/ Irja R. Otsa	 
	 	 	Name:  	Irja R. Otsa	 
	 	 	Title:  	Associate Director	 
	 
	 	 	 
	 	By:  	/s/ Marie Haddad	 
	 	 	Name:  	Marie Haddad	 
	 	 	Title:  	Associate Director	 
	 




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Annex III




Conditions Precedent to Permitted Acquisitions





     (1) The Administrative Agent shall receive not less than ten Business Days’ prior written
notice of such Acquisition, which notice shall include a reasonably detailed description of the
proposed terms of such Acquisition and identify the anticipated closing date thereof;



     (2) concurrently with such Acquisition, the Borrower shall comply, and shall cause the Target
to the extent applicable to comply, with the provisions of Section 6.9 of the Credit Agreement;



     (3) after giving effect to such Acquisition and the incurrence of any Indebtedness in
connection therewith, (a) no Default or Event of Default shall exist, and (b) the Borrower shall be
in compliance on a pro forma basis with the covenants set forth in Section 7.1 recomputed for the
most recently ended fiscal quarter of the Borrower for which information is available regarding the
business being acquired;



     (4) all material consents necessary for such Acquisition have been acquired and such
Acquisition shall have been approved by the applicable Target’s board of directors or similar
governing body;



     (5) the applicable Target shall be engaged in substantially the same type of business as the
Borrower and its Subsidiaries or a reasonable extension thereof;



     (6) the aggregate consideration (including all (i) cash and other property (other than common
stock of the Borrower), (ii) Earn-Outs, (iii) Seller Debt and (iv) any other Indebtedness that is
assumed or acquired by the Borrower of any of its Subsidiaries in connection with the Acquisition)
paid in connection with all Acquisitions shall not exceed $400,000,000.




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