exv10w1






Exhibit 10.1




EXECUTION VERSION




$500,000,000




CREDIT AND GUARANTEE AGREEMENT




among




LEAR CORPORATION,



a Debtor and Debtor-in-Possession, as Borrower




THE OTHER GUARANTORS NAMED HEREIN,



each (other than Lear ASC Corporation) a Debtor and Debtor-in-Possession,




The Several Lenders from Time to Time Parties Hereto,




and




JPMORGAN CHASE BANK, N.A.,



as Administrative Agent




Dated
as of July 6, 2009



 




J. P. MORGAN SECURITIES INC.




and




CITIGROUP GLOBAL MARKETS INC.,




as Joint Lead Arrangers and Joint Bookrunners




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 	 	 
	 	 	 	 
	SECTION 1.
	 	DEFINITIONS

	 	 	2	 
	 1.1  
	 	Defined Terms

	 	 	2	 
	 1.2  
	 	Other Definitional Provisions

	 	 	18	 
	SECTION 2.
	 	AMOUNT AND TERMS OF LOANS

	 	 	19	 
	 2.1  
	 	Loans

	 	 	19	 
	 2.2  
	 	Procedure for Borrowing

	 	 	19	 
	 2.3  
	 	[Reserved]

	 	 	20	 
	 2.4  
	 	Maturity and Repayment of Loans

	 	 	20	 
	 2.5  
	 	Termination of Commitments

	 	 	20	 
	 2.6  
	 	Fees.

	 	 	20	 
	 2.7  
	 	Exit Facility Commitment Fee

	 	 	20	 
	 2.8  
	 	Optional Prepayments

	 	 	21	 
	 2.9  
	 	Mandatory Prepayments

	 	 	21	 
	 2.10
	 	Conversion and Continuation Options

	 	 	21	 
	 2.11
	 	Limitations on Eurodollar Tranches

	 	 	22	 
	 2.12
	 	Interest Rates and Payment Dates

	 	 	22	 
	 2.13
	 	Computation of Interest and Fees

	 	 	22	 
	 2.14
	 	Inability to Determine Interest Rate

	 	 	23	 
	 2.15
	 	Pro Rata Treatment and Payments

	 	 	23	 
	 2.16
	 	Requirements of Law

	 	 	24	 
	 2.17
	 	Taxes

	 	 	25	 
	 2.18
	 	Indemnity

	 	 	27	 
	 2.19
	 	Change of Lending Office

	 	 	28	 
	 2.20
	 	Priority and Liens

	 	 	28	 
	 2.21
	 	Payment of Obligations

	 	 	30	 
	 2.22
	 	No Discharge; Survival of Claims

	 	 	30	 
	 2.23
	 	Conflicts

	 	 	30	 
	 2.24
	 	Conversion to Exit Facility

	 	 	30	 
	SECTION 3.
	 	[RESERVED]

	 	 	30	 
	SECTION 4.
	 	REPRESENTATIONS AND WARRANTIES

	 	 	30	 
	 4.1  
	 	No Change.

	 	 	30	 
	 4.2  
	 	Existence; Compliance with Law

	 	 	31	 
	 4.3  
	 	Power; Authorization; Enforceable Obligations

	 	 	31	 
	 4.4  
	 	No Legal Bar

	 	 	31	 
	 4.5  
	 	Litigation

	 	 	31	 
	 4.6  
	 	No Default

	 	 	31	 
	 4.7  
	 	Ownership of Property; Liens

	 	 	31	 
	 4.8  
	 	Intellectual Property

	 	 	31	 
	 4.9  
	 	Taxes

	 	 	32	 
	 4.10
	 	Federal Regulations

	 	 	32	 
	 4.11
	 	Labor Matters

	 	 	32	 
	 4.12
	 	ERISA

	 	 	32	 
	 4.13
	 	Investment Company Act; Other Regulations

	 	 	32	 
	 4.14
	 	Subsidiaries

	 	 	32	 
	 4.15
	 	Use of Proceeds

	 	 	33	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 	 	 
	 	 	 	 
	 4.16
	 	Environmental Matters

	 	 	33	 
	 4.17
	 	Accuracy of Information, etc

	 	 	34	 
	 4.18
	 	Financial Statements

	 	 	34	 
	 4.19
	 	Insurance

	 	 	34	 
	SECTION 5.
	 	CONDITIONS PRECEDENT

	 	 	34	 
	SECTION 6.
	 	AFFIRMATIVE COVENANTS

	 	 	37	 
	 6.1  
	 	Financial Statements

	 	 	37	 
	 6.2  
	 	Certificates; Other Information

	 	 	38	 
	 6.3  
	 	Payment of Obligations

	 	 	39	 
	 6.4  
	 	Maintenance of Existence; Compliance

	 	 	40	 
	 6.5  
	 	Maintenance of Property; Insurance

	 	 	40	 
	 6.6  
	 	Inspection of Property; Books and Records; Discussions

	 	 	40	 
	 6.7  
	 	Notices

	 	 	40	 
	 6.8  
	 	Environmental Laws

	 	 	41	 
	 6.9  
	 	Lender Conference Calls

	 	 	41	 
	 6.10
	 	Collateral; Further Assurances

	 	 	41	 
	SECTION 7.
	 	NEGATIVE COVENANTS

	 	 	42	 
	 7.1  
	 	Financial Covenants

	 	 	42	 
	 7.2  
	 	Indebtedness

	 	 	43	 
	 7.3  
	 	Liens

	 	 	44	 
	 7.4  
	 	Fundamental Changes

	 	 	47	 
	 7.5  
	 	Disposition of Property

	 	 	47	 
	 7.6  
	 	Restricted Payments

	 	 	48	 
	 7.7  
	 	Investments

	 	 	48	 
	 7.8  
	 	Transactions with Affiliates

	 	 	49	 
	 7.9  
	 	Swap Agreements

	 	 	49	 
	 7.10
	 	Changes in Fiscal Periods

	 	 	50	 
	 7.11
	 	Negative Pledge Clauses

	 	 	50	 
	 7.12
	 	Clauses Restricting Subsidiary Distributions

	 	 	50	 
	 7.13
	 	Lines of Business

	 	 	50	 
	 7.14
	 	Use of Proceeds

	 	 	50	 
	 7.15
	 	Chapter 11 Claims

	 	 	51	 
	SECTION 8.
	 	EVENTS OF DEFAULT

	 	 	51	 
	 8.1  
	 	Events of Default

	 	 	51	 
	SECTION 9.
	 	THE ADMINISTRATIVE AGENT

	 	 	54	 
	 9.1  
	 	Appointment

	 	 	54	 
	 9.2  
	 	Delegation of Duties

	 	 	54	 
	 9.3  
	 	Exculpatory Provisions

	 	 	55	 
	 9.4  
	 	Reliance by Administrative Agent

	 	 	55	 
	 9.5  
	 	Notice of Default

	 	 	55	 
	 9.6  
	 	Non-Reliance on Administrative Agent and Other Lenders

	 	 	56	 
	 9.7  
	 	Indemnification

	 	 	56	 
	 9.8  
	 	Agent in Its Individual Capacity

	 	 	56	 
	 9.9  
	 	Successor Administrative Agent

	 	 	57	 
	 9.10
	 	Execution of Loan Documents

	 	 	57	 
	SECTION 10.
	 	GUARANTEE

	 	 	57	 
	 10.1  
	 	Guarantee

	 	 	57	 
	 10.2  
	 	Right of Contribution

	 	 	58	 
	 10.3  
	 	No Subrogation

	 	 	58	 
	 10.4  
	 	Amendments, etc. with respect to the Obligations

	 	 	58	 
	 10.5  
	 	Guarantee Absolute and Unconditional

	 	 	59	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 	 	 
	 	 	 	 
	 10.6  
	 	Reinstatement

	 	 	59	 
	 10.7  
	 	Payments

	 	 	59	 
	SECTION 11.
	 	REMEDIES; APPLICATION OF PROCEEDS

	 	 	60	 
	 11.1  
	 	Remedies; Obtaining the Collateral Upon Default

	 	 	60	 
	 11.2  
	 	Remedies; Disposition of the Collateral

	 	 	60	 
	 11.3  
	 	Application of Proceeds

	 	 	61	 
	 11.4  
	 	WAIVER OF CLAIMS

	 	 	61	 
	 11.5  
	 	Remedies Cumulative

	 	 	62	 
	 11.6  
	 	Discontinuance of Proceedings

	 	 	62	 
	SECTION 12.
	 	MISCELLANEOUS

	 	 	63	 
	 12.1  
	 	Amendments and Waivers

	 	 	63	 
	 12.2  
	 	Notices

	 	 	64	 
	 12.3  
	 	No Waiver; Cumulative Remedies

	 	 	65	 
	 12.4  
	 	Survival of Representations and Warranties

	 	 	66	 
	 12.5  
	 	Payment of Expenses and Taxes

	 	 	66	 
	 12.6  
	 	Successors and Assigns; Participations and Assignments

	 	 	67	 
	 12.7  
	 	Adjustments; Set-off

	 	 	69	 
	 12.8  
	 	Counterparts

	 	 	70	 
	 12.9  
	 	Severability

	 	 	70	 
	 12.10
	 	Integration

	 	 	70	 
	 12.11
	 	GOVERNING LAW

	 	 	70	 
	 12.12
	 	Submission To Jurisdiction; Waivers

	 	 	70	 
	 12.13
	 	Absence of Prejudice to the Prepetition Lenders with
Respect to Matters Before the Bankruptcy Court

	 	 	71	 
	 12.14
	 	Specific Performance of Obligation to Convert into
Exit Facility

	 	 	71	 
	 12.15
	 	Acknowledgements

	 	 	71	 
	 12.16
	 	Releases of Guarantees and Liens

	 	 	72	 
	 12.17
	 	Confidentiality

	 	 	72	 
	 12.18
	 	WAIVERS OF JURY TRIAL

	 	 	73	 
	 12.19
	 	Prepetition Credit Agreement Amendment; Adequate
Protection

	 	 	73	 
	 12.20
	 	Effectiveness

	 	 	73	 






 









 






SCHEDULES:




	 	 	 
	1.1A

	 	Commitments
	4.14

	 	Subsidiaries
	7.2(d)

	 	Existing Indebtedness
	7.3(f)

	 	Existing Liens






EXHIBITS:




	 	 	 
	A

	 	Form of Final Order
	B

	 	Form of Intercompany Subordinated Note
	C

	 	Form of Assignment and Assumption
	D

	 	Form of Compliance Certificate
	E

	 	Form of Exemption Certificate
	F

	 	Form of Prepetition Credit Agreement Amendment
	G

	 	Warrant Term Sheet
	H

	 	Restructuring Term Sheet
	I

	 	Exit Credit Agreement







 












 




THIS DEBT IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE
INTERNAL REVENUE CODE. A LENDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT,
ISSUE DATE AND YIELD TO MATURITY BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO LEAR
CORPORATION AT THE FOLLOWING ADDRESS: 21557 TELEGRAPH ROAD, SOUTHFIELD, MICHIGAN 48034, ATTENTION:
SHARI L. BURGESS.




          CREDIT
AND GUARANTEE AGREEMENT (this “Agreement”), dated as of July 6, 2009, among
(i) LEAR CORPORATION, a Delaware corporation (the “Borrower”), which is a debtor and
debtor-in-possession in a case pending under Chapter 11 of the Bankruptcy Code, and (ii) each of
the direct and indirect domestic Wholly-Owned Subsidiaries of the Borrower signatory hereto (such
Subsidiaries, the “Guarantors” and, the Guarantors (other than Lear ASC Corporation),
together with the Borrower, the “Debtors” and each a “Debtor”), each of which
Guarantors (other than Lear ASC Corporation) is a debtor and a debtor-in-possession in a case
pending under Chapter 11 of the Bankruptcy Code (the cases of the Debtors, each a “Case”
and, collectively, the “Cases”), (iii) the several banks and other financial institutions
or entities from time to time parties to this Agreement (the “Lenders”), and (iv) JPMORGAN
CHASE BANK, N.A., as administrative agent (in such capacity, the “Administrative Agent”).




INTRODUCTORY STATEMENT:




          On
or about July 6, 2009 (the “Petition Date”), the Debtors filed voluntary petitions with
the Bankruptcy Court (such term and other capitalized terms used in this Introductory Statement are
as defined in this Introductory Statement or are being used with the meanings given to such terms
in Section 1.1) initiating the Cases and have continued in the possession of their assets and in
the management of their businesses pursuant to Bankruptcy Code Sections 1107 and 1108.




          Pursuant to this Agreement and the Final Order, the Lenders are making available to the
Borrower a $500,000,000 debtor-in-possession term loan facility (the “DIP Facility”), all
of the Borrower’s obligations with respect to which are guaranteed by the Guarantors.




          The proceeds of the Loans will be used for working capital and other general corporate
purposes of the Borrower and its Subsidiaries (including without limitation, for the payment of
fees and expenses incurred in connection with entering into this Agreement and the transactions
contemplated hereby), in all cases subject to the terms of this Agreement and the Final Order.




          To provide guarantees for the repayment of the Loans and the payment of the other Obligations
of the Loan Parties hereunder and under the other Loan Documents, the Debtors are providing to the
Administrative Agent and the Lenders, pursuant to this Agreement and subject to the Final Order,
the following (each as more fully described herein):




          (a) a guarantee from each of the Guarantors of the due and punctual payment and performance of
the Obligations of the Borrower;




          (b) with respect to the Obligations of the Debtors, a Superpriority Claim entitled to the
benefits of Bankruptcy Code Section 364(c)(1) in each of the Cases;




          (c) pursuant to Bankruptcy Code Section 364(c)(2) a perfected first priority (subject to
permitted exceptions) Lien on all present and after-acquired property of the Debtors not subject to
a


 









 







           Lien on the Petition Date, excluding, in all cases, thirty-five (35%) percent of the total
outstanding voting Capital Stock of each new or existing Foreign Subsidiary;




          (d) pursuant to Bankruptcy Code Section 364(c)(3) a perfected junior Lien on all present and
after-acquired property of the Debtors that is otherwise subject to a valid and perfected Lien on
the Petition Date (other than Liens securing the Prepetition Obligations and Liens that are junior
to the Liens securing the Prepetition Obligations) or a valid Lien perfected (but not granted)
after the Petition Date to the extent such post-Petition Date perfection in respect of a
pre-Petition Date claim is expressly permitted under the Bankruptcy Code; and




          (e) pursuant to Bankruptcy Code Section 364(d)(1) a perfected first priority (subject to
permitted exceptions), senior priming Lien on (x) all present and after-acquired property of the
Debtors that is subject to a valid, perfected and enforceable Lien on or after the Petition Date to
secure the Prepetition Obligations, (y) all present and after-acquired assets that are presently
subject to Liens that are junior to the Liens that secure the Prepetition Obligations and (z) the
Liens granted after the Petition Date to provide adequate protection in respect of the Prepetition
Obligations.




          All of the claims and the Liens granted hereunder and pursuant to the Final Order in the Cases
to the Administrative Agent and the Lenders shall be subject to the Carve Out, but in each case
only to the extent provided in the Final Order.




          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%. 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.




          “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.




2









 








          “Agreement”: as defined in the preamble hereto.




          “Applicable Margin”: a percentage per annum equal to (a) for ABR Loans, 9.0% and (b)
for Eurodollar Loans, 10.0%.




          “Approved Fund”: as defined in Section 12.6(b).




          “Asset Sale”: any Disposition of property or series of related Dispositions of
property (excluding any such Disposition permitted by Section 7.5(a) — (l)) 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) in excess of $1,000,000.




          “Assignee”: as defined in Section 12.6(b).




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




          “Bankruptcy Code”: the Bankruptcy Reform Act of 1978, as heretofore and hereafter
amended, and codified as 11 U.S.C. §§101 et seq.




          “Bankruptcy Court”: the United States Bankruptcy Court for the Southern District of
New York, or any other court having jurisdiction over the Cases from time to time.




          “Benefited Lender”: as defined in Section 12.7(a).




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




          “Borrower”: as defined in the preamble hereto.




          “Borrowing Date”: any Business Day specified by the Borrower as a date on which the
Borrower requests the relevant Lenders to make Loans hereunder.




          “Borrowing Notice”: as defined in Section 2.2.




          “Budget”: as defined in Section 5(i).




          “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.




          “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


3









 







           sheet of such Person and its Subsidiaries, but excluding (i) such expenditures that are made
with all or any portion of a Reinvestment Deferred Amount, (ii) capitalized interest and (iii) such
expenditures for which such Person is reimbursed in cash by a third party (other than any Group
Member).




          “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.




          “Carve Out”: as defined in Section 2.20(a).




          “Carve-Out Cap”: as defined in Section 2.20(a).




          “Carve-Out Trigger Notice”: a written notice delivered by the Administrative Agent to
the Borrower, the United States Trustee, counsel for the Borrower and counsel for any statutory
committee appointed in the Cases stating that an Event of Default has occurred and is continuing
and that the Carve-Out Cap is invoked, which notice may only be delivered following the occurrence
and during the continuance of an Event of Default.




          “Cases”: as defined in the preamble to this Agreement.




          “Cash Collateral”: as defined in Section 363(a) of the Bankruptcy Code.




          “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 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


4









 







           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.




          “Cash Flow Forecast”: as defined in Section 6.2(f).




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




          “Change of Control”: (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 Loans occurs.




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




          “Collateral”: all property of the Loan Parties, now owned or hereafter acquired, as
more particularly described and referred to as “DIP Collateral” in the Final Order or in the
Collateral Documents.




          “Collateral Documents”: collectively, any Mortgages, collateral assignments, security
agreements, pledge agreements, security agreements granting Liens in Intellectual Property or other
similar agreements delivered to the Administrative Agent and the Lenders pursuant to the Loan
Documents to secure the Obligations (including pursuant to Section 2.20(b)). The Collateral
Documents shall supplement, and shall not limit, the grant of Collateral pursuant to the Final
Order.




          “Commitment”: as to any Lender, the obligation of such Lender to make Loans to the
Borrower in an aggregate principal amount not to exceed the amount set forth under the heading
“Commitment” opposite such Lender’s name on Schedule 1.1A. The original aggregate amount of the
Commitments is $500,000,000.




          “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 D.



5









 







          “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 12.5 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”: an order of the Bankruptcy Court confirming the Reorganization
Plan.




          “Conforming Plan”: (a) a Reorganization Plan proposed by the Debtors that
incorporates the terms and conditions set forth in the Restructuring Term Sheet attached as Exhibit
H and is consistent in all material respects with the Restructuring Term Sheet (as may be modified
in accordance with the terms of that certain letter agreement dated
as of July 6, 2009 by and
among the Borrower and certain of its Affiliates, JPMorgan Chase Bank, N.A. and the lender
signatories thereto) or (b) a plan of reorganization proposed by the Debtors that provides for
payment in full in cash of the Obligations.




          “Consolidated EBITDA”: for any Test 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 and
expenses associated with the discharge of pre-petition 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 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 $200,000,000 for fiscal year 2009 and $120,000,000 for any 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 Cases, the
Reorganization Plan, the Exit Credit Agreement 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).




          “Consolidated Interest Expense”: for any Test 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;
provided, that


6









 







           Consolidated Interest Expense for any period shall (a) exclude (i) any amortization or
write-off of deferred financing fees during such period and (ii) premiums paid in connection with
the discharge of Indebtedness and (b) include any interest income during such period.




          “Consolidated Net Income”: for any Test 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.




          “Consummation Date”: the date of substantial consummation (as defined in Section 1101
of the Bankruptcy Code) of a Reorganization Plan that is confirmed pursuant to a Confirmation
Order.




          “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.




          “DIP Facility”: as defined in the Introductory Statement.




          “Disclosure Statement”: the disclosure statement in respect of a Conforming Plan, in
form and substance reasonably satisfactory to the Administrative Agent, to be 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. 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.




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




          “Enforcement Action”: with respect to the Obligations, any demand for payment or
acceleration thereof, the exercise of any rights and remedies with respect to any Collateral
securing the


7









 







           Obligations or the commencement or prosecution of enforcement of any of the rights and
remedies hereunder or under any other Loan Documents, or applicable law, including without
limitation the exercise of any rights of set-off or recoupment, and the exercise of any rights or
remedies of a secured creditor under the Uniform Commercial Code of any applicable jurisdiction or
under the Bankruptcy Code.




          “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.




          “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, or is expected to be, 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 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


8









 






           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) 3.50% 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.




          “Exit Credit Agreement”: the credit agreement for the “Roll-Over” Exit Facility of
reorganized Lear Corporation, substantially in the form of Exhibit I hereto, with such amendments,
modifications, supplements and changes permitted or agreed to pursuant to the terms hereof.




          “Exit Facility”: as defined and described in the Exit Credit Agreement.




          “Exit Facility Documentation”: the collective reference to the Exit Credit Agreement,
collateral agreements, intercreditor agreement, mortgages and other security agreements, documents
and instruments, substantially consistent with the terms and conditions set forth in the Exit
Credit Agreement, as reasonably determined by the Administrative Agent, and otherwise in form and
substance reasonably satisfactory to the Administrative Agent and reorganized Lear Corporation.




          “Exit Fee”: as defined in Section 2.6 (b).




          “Extension Option”: as defined in Section 2.4(b).




          “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.




          “Final Order”: an order of the Bankruptcy Court entered in the Cases granting
approval of, among other things, the transactions contemplated by this Agreement and the other Loan
Documents and granting the Liens and Superpriority Claims described in the Introductory Statement
in favor of the


9









 







           Administrative Agent and the Lenders, substantially in the form of Exhibit A hereto, or
otherwise in form and substance reasonably satisfactory to the Administrative Agent and the
Required Lenders.




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




          “Funding Office”: the office of the Administrative Agent specified in Section 12.2 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 referred to in Section 12.1(a) of the Prepetition
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 Obligation”: as to any Person (the “guaranteeing person”), any
obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing
Person that guarantees or in effect guarantees, or which is given to induce the creation of a
separate obligation by another Person (including any bank under any letter of credit) that
guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the
“primary obligations”) of any other third Person (the “primary obligor”) in any
manner, whether directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability
in respect thereof as determined by the Borrower in good faith.




          “Guarantors”: as defined in the preamble hereto.




          “Immaterial Subsidiary”: at any time, any Subsidiary of the Borrower which is not a
Loan Party which has consolidated assets with a book value of $1,000,000 or less or which has
consolidated revenues of $1,000,000 or less for the most recent period of four consecutive fiscal
quarters.





10












 





          “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 a 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 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.




          “Initial Cash Flow Forecast”: as defined in Section 5(i).




          “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 B or otherwise in form and substance reasonably acceptable to the Administrative Agent.




          “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; and (b) as to any ABR
Loan, the last day of each calendar month and the Maturity Date.




          “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



11









 






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





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




     (ii) the Borrower may not select an Interest Period that would extend beyond the
Scheduled Maturity Date or the extension thereof pursuant to the Extension Option; 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.




          “Lenders”: as defined in the preamble hereto; 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
Administrative Agent, for the benefit of the Lenders, (b) Liens in favor of the Prepetition Agent,
for the benefit of the Prepetition Secured Parties, (c) Liens permitted by Section 7.3(c)(ii) and
(d) 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, (ii) accounts receivable and inventory (in
each case valued in accordance with GAAP) which are not subject to any Liens (other than (a) Liens
in favor of the Administrative Agent, for the benefit of the Lenders, (b) Liens in favor of the
Prepetition Agent, for the benefit of the Prepetition Secured Parties, and (c) inchoate Liens
arising by operation of law which are not the subject of enforcement actions) held by the Borrower
and its Subsidiaries on such date, less trade payables of the



12









 






Borrower and its Subsidiaries and (iii) 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 Notes, the Final Order, any Collateral
Documents and any amendment, waiver, supplement or other modification to any of the foregoing.




          “Loan Parties”: the Borrower and the Guarantors.




          “Loans”: as defined in Section 2.1.




          “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 (other
than (i) any events leading up to the filing of the Cases disclosed to the Lenders, (ii) the filing
of the Cases and (iii) those events which customarily occur following the commencement of a
proceeding under Chapter 11 of the Bankruptcy Code and other events ancillary thereto) or (b) the
validity or enforceability of this Agreement or any of the other Loan Documents or the rights or
remedies of the Administrative Agent or the Lenders hereunder or thereunder.




          “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 earliest of (a) the later of (i) the Scheduled Maturity Date or
(ii) upon effectiveness of the Extension Option pursuant to Section 2.4(b), the date that is 15
months following the Closing Date, (b) the Consummation Date and (c) the acceleration of the Loans
in accordance with the provisions hereof.




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




          “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 Administrative 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 securing the Obligations) 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) and (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.



13









 







          “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.




          “Obligations”: the unpaid principal of and interest on (including interest accruing
after the maturity of the Loans) 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 and Specified Swap Agreements, any affiliate of any Lender), whether
direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter
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 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, at any time after the
Closing Date, the percentage which 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 12.6(c).




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




          “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 Introductory Statement.




          “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 Effective Date”: as defined in Section 2.7.



14









 







          “Prepetition Agent”: JPMorgan Chase Bank, N.A., in its capacity as general
administrative agent for the Prepetition Lenders.




          “Prepetition Credit Agreement”: the Amended and Restated Credit and Guarantee
Agreement, dated as of April 25, 2006, among the Borrower, the Foreign Subsidiary Borrowers party
thereto, the Prepetition Lenders, the Prepetition Agent and the other agents party thereto, as
amended, supplemented or otherwise modified as of the Petition Date.




          “Prepetition Credit Agreement Amendment”: an amendment to the Prepetition Credit
Agreement substantially in the form of Exhibit F hereto.




          “Prepetition Lenders”: the several banks and other financial institutions and
entities from time to time parties to the Prepetition Credit Agreement.




          “Prepetition Loan Documents”: the Prepetition Credit Agreement, the Securities
Documents (as defined in the Prepetition Credit Agreement), the Notes (as defined in the
Prepetition Credit Agreement) and any amendment, waiver, supplement or other modification to any of
the foregoing.




          “Prepetition Loans”: the “Loans” as defined in the Prepetition Credit Agreement.




          “Prepetition Obligations”: all of the Debtors’ obligations (including any Hedging
Agreement Obligations (as defined in the Prepetition Credit Agreement) owed by any Debtor to any
Prepetition Lender (or any Affiliate of such Prepetition Lender)) incurred under, pursuant to or in
connection with the Prepetition Loan Documents.




          “Prepetition Secured Parties”: the Prepetition Agent, the Prepetition Lenders and any
affiliate of a Prepetition Lender which holds Prepetition Obligations.




          “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 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).




          “Professional Fees”: as defined in Section 2.20(a).




          “Professional Persons”: as defined in Section 2.20(a).




          “Prohibited Claim”: any action or objection with respect to (a) claims of the
Prepetition Secured Parties against the Debtors or the Liens which secure the Prepetition
Obligations, (b) the Superpriority Claims or Liens granted to the Administrative Agent and the
Lenders pursuant to Sections 2.20(a) and (b), or (c) the Superpriority Claims or Liens granted to
the Prepetition Secured Parties pursuant to Section 2.20(c).




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




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




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




15









 








          “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 $1,000,000.




          “Register”: as defined in Section 12.6(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 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 180 days after such Reinvestment Event 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.




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




          “Reorganization Plan”: a plan of reorganization in the Borrower’s Case.




          “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 having more than 50% of the Outstanding
Amount; provided that the portion of the Outstanding Amount 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.



16









 







          “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.




          “Scheduled Maturity Date”: the first anniversary of the Closing Date.




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




          “Secured Parties”: collectively, the Administrative Agent, the Lenders, each issuer of
a Specified Letter of Credit, 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.




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




          “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 or any affiliate of a Lender 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.




          “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.




          “Superpriority Claim”: a claim against any Debtor in any of the Cases which is an
allowed administrative expense claim having priority over any or all administrative expenses,
whether



17









 






now existing or hereafter arising, including of the kind specified in or arising under
Sections 105, 326, 328, 330, 331, 503(b), 507(a), 507(b), 726, 1113 or 1114 of the Bankruptcy Code,
including a claim pursuant to Section 364(c)(1) of the Bankruptcy Code.




          “Swap Agreement”: any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions.




          “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.




          “Test Period”: on any date, the period beginning on July 6, 2009 and ending on such
date (taken as one accounting period) in respect of which financial statements for each fiscal
month, quarter or year in such period have been (or have been required to be) delivered pursuant to
Section 6.1(a), (b) or (c), as applicable.




          “Transferee”: any Assignee or Participant.




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




          “United States”: the United States of America.




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




          “Warrant Share”: a fraction, the numerator of which is the aggregate principal amount
of Loans which are converted into the Exit Facility (or an alternative exit facility acceptable to
the Lenders) and the denominator of which is the original principal amount of Loans made on the
Closing Date.




          “Warrants”: as defined in Section 2.7.




          “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 (whether as a result of the Cases or
otherwise) on



18









 






the operation of such provision (or if the Administrative Agent notifies the Borrower that the
Required Lenders request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall 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 (or, in the case of Section 7.1(b), the most recent month) 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 and in the Final
Order, each Lender listed on Schedule 1.1A hereto severally agrees to make term loans (the
“Loans”) on the Closing Date in the full amount of such Lender’s 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 (the “Borrowing Notice”) (which notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, one Business Day prior to the
anticipated Borrowing Date) requesting that the Lenders make the Loans and specifying the amount
and Type of Loans to be borrowed, the requested Borrowing Date and in the case of Eurodollar Loans,
the amount and length of the Interest Period therefor. Upon receipt of the Borrowing Notice the
Administrative Agent shall promptly notify each Lender thereof. Not later than 12:00 Noon, New
York City time, on the requested Borrowing Date each Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately available funds equal to the
Loan 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.




19









 








          2.3 [Reserved]




          2.4 Maturity and Repayment of Loans. (a) The Borrower shall repay all outstanding
Loans on the Maturity Date.




          (b) The Borrower may extend the Scheduled Maturity Date to the date that is 15 months after
the Closing Date (the “Extension Option”) subject to satisfaction of the following
conditions:





	 	(i)	 	the Borrower shall provide prior written notice to the
Administrative Agent at least 30 days prior to the Scheduled Maturity Date of
its intention to exercise the Extension Option,
	 
	 	(ii)	 	the Borrower shall pay a fee to the Administrative Agent on or
before the Scheduled Maturity Date, for the account of each Lender, equal to
1.0% of each Lender’s pro rata share of the Outstanding Amount on the Scheduled
Maturity Date, and
	 
	 	(iii)	 	no Default or Event of Default shall have occurred and be
continuing as of the Scheduled Maturity Date.





          2.5 Termination of Commitments. Unless previously terminated, the Commitments shall
terminate on the date that is 60 days after the date of execution and delivery of this Agreement if
the Bankruptcy Court has not entered on or prior to such date the Final Order in accordance with
Section 5(g); provided that such date may be extended by an additional 30 days if the
Administrative Agent consents to such extension (such consent not to be unreasonably withheld).




          2.6 Fees. (a) The Borrower agrees to pay to the Administrative Agent, for the
account of each Lender, an upfront fee (the “Upfront Fee”) in an amount equal to 5.0% of
the Commitment of such Lender, payable on the Closing Date.




          (b) The Borrower agrees to pay to the Administrative Agent, for the account of each Lender, an
exit fee (the “Exit Fee”) in an amount equal to 1.0% of the principal amount of the Loans
that are continued as Exit Loans (as defined in the Exit Credit Agreement) pursuant to Section 2.24
or exit loans under an alternative exit facility acceptable to the Lenders, such Exit Fee to be
payable on the Consummation Date.




          (c) 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 Exit Facility Commitment Fee. On the effective date of a Reorganization Plan
under which the DIP Facility is converted into the Exit Facility (or an alternative exit facility
acceptable to the Lenders) (the “Plan Effective Date”), the Borrower agrees that
reorganized Lear Corporation will pay to the Lenders a commitment fee, at reorganized Lear
Corporation’s sole election, by either (i) issuing to the Lenders warrants (the “Warrants”)
to purchase a number of shares of common stock of reorganized Lear Corporation with a value as of
the Plan Effective Date equal to $25,000,000 (or, if less than all of the Loans under the DIP
Facility are converted into an exit facility, the Warrant Share of $25,000,000), with the Warrants
to have the terms set forth on Exhibit G and other customary terms or (ii) paying in cash to each
Lender an amount equal to 5% of the principal amount of such Lender’s Loans that will be converted
into the Exit Facility or any other exit facility.





20












 





          2.8 Optional Prepayments. Subject to Section 2.6(b) and the provisos 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.




          2.9 Mandatory Prepayments. (a) If any Capital Stock or Indebtedness shall be
issued or incurred by any Group Member (excluding any Capital Stock issued to a Group Member in
accordance with Section 7.7 and any Indebtedness permitted by Section 7.2) an amount equal to 100%
of the Net Cash Proceeds thereof shall be applied 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(c).




          (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 the Borrower no
later than the end of the fiscal month in which such Net Cash Proceeds are received (or, if the
aggregate amount of such Net Cash Proceeds is less than $15,000,000, 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(c); 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 $25,000,000 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(c).




          (c) 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



21









 






to permit such conversions. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.




          (b) Any Eurodollar Loan may be continued as such upon the expiration of the then current
Interest Period with respect thereto by the Borrower giving irrevocable notice to the
Administrative Agent, in accordance with the applicable provisions of the term “Interest Period”
set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan 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



22









 






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, 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 the Upfront Fee, the Exit Fee or any other fee payable
to Lenders (which, for the avoidance of doubt, shall not include issuance of the Warrants) shall be
made pro rata according to the respective Outstanding Percentages 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. 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 the
Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than
payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan
becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended
to the next succeeding Business Day unless the result of such extension would be to extend such
payment into another calendar month, in which event



23









 






such payment shall be made on the immediately preceding Business Day. In the case of any
extension of any payment of principal pursuant to the preceding two sentences, interest thereon
shall be payable at the then applicable rate during such extension.




          (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 Borrowing
Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a
rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation, for the period until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest
error. If such Lender’s share of such borrowing is not made available to the Administrative Agent
by such Lender within three Business Days after such Borrowing Date, the Administrative Agent shall
also be entitled to recover such amount with interest thereon at the rate per annum applicable
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



24









 







account of, advances, loans or other extensions of credit by, or any other acquisition
of funds by, any office of such Lender that is not otherwise included in the determination
of the Eurodollar Rate; or




     (iii) shall impose on such Lender any other condition;


and the result of any of the foregoing is to increase the cost to such Lender, by an amount that
such Lender 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



25









 






required to be withheld from any amounts payable to the Administrative Agent or any Lender
hereunder 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 E 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.




26









 








          (e) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrower (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



27









 






prepayment or of such failure to borrow, convert or continue to the last day of such Interest
Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) that would have
accrued to such Lender on such amount by placing such amount on deposit for a comparable period
with leading banks in the interbank eurodollar market. A certificate as to any amounts payable
pursuant to this Section submitted to the Borrower by any Lender shall be 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 Priority and Liens. (a)The Loan Parties hereby covenant, represent and warrant
that, upon entry of the Final Order and subject to the terms thereof, the Obligations of the Loan
Parties hereunder and under the other Loan Documents, (i) pursuant to Section 364(c)(1) of the
Bankruptcy Code, shall at all times constitute allowed Superpriority Claims, (ii) pursuant to
Section 364(c)(2) of the Bankruptcy Code, shall be secured by a perfected first priority Lien on
all Collateral that is otherwise not encumbered by a valid perfected and non-avoidable Lien as of
the Petition Date or a valid and perfected Lien in existence at the time of such commencement that
is perfected subsequent to such commencement as permitted by Section 546(b) of the Bankruptcy Code,
excluding (x) 35% percent of the total outstanding voting Capital Stock of each new or existing
Foreign Subsidiary and (y) avoidance actions but including the proceeds thereof, (iii) pursuant to
Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected junior Lien upon all
Collateral that is subject to valid, perfected and non-avoidable Liens in existence on the Petition
Date or valid Liens perfected (other than to secure the Prepetition Obligations) (but not granted)
thereafter to the extent such post-Petition Date perfection in respect of a pre-Petition Date claim
is expressly permitted under the Bankruptcy Code, and (iv) pursuant to Section 364(d)(1) of the
Bankruptcy Code, shall be secured by a perfected first priority priming Lien upon all Collateral
(x) that is subject to a valid Lien or security interest in effect on the Petition Date to secure
the Prepetition Obligations, (y) that is subject to a Lien granted after the Petition Date to
provide adequate protection in respect of the Prepetition Obligations or (z) that is subject to a
valid Lien in effect on the Petition Date that is junior to the Liens that secure the Prepetition
Obligations, subject and subordinate in each case with respect to subclauses (i) through (iv)
above, only to the Carve Out. For purposes hereof, the “Carve Out” shall mean the sum of
(A) all fees required to be paid to the Clerk of the Bankruptcy Court and to the Office of the
United States Trustee under section 1930(a) of title 28 of the United States Code, (B) the costs of
administrative expenses not to exceed $50,000 in the aggregate that are permitted to be incurred by
any Chapter 7 trustee pursuant to any order of the Bankruptcy Court following any conversion of any
of the Cases pursuant to section 1112 of the Bankruptcy Code, and (C) at any time after the first
Business Day following delivery of a Carve-Out Trigger Notice, to the extent allowed at any time,
whether before or after delivery of a Carve-Out Trigger Notice, whether by interim order,
procedural order or otherwise, all unpaid fees, costs and expenses (collectively, the
“Professional Fees”) incurred by persons or firms retained by the Debtors pursuant to
Section 327, 328 or 363 of the Bankruptcy Code and any official committee of unsecured creditors
appointed in the Cases pursuant to Section 1103 of the Bankruptcy Code (collectively, the
“Professional Persons”), the payment of all Professional Fees incurred by the Professional
Persons at any time after the first Business Day following



28









 






delivery of a Carve-Out Trigger Notice in an aggregate amount not exceeding $15,000,000 (the
“Carve-Out Cap”) (plus all unpaid Professional Fees allowed at any time by the Bankruptcy
Court, whether before or after delivery of a Carve-Out Trigger Notice, whether by interim order,
procedural order or otherwise, that were incurred by the Professional Persons on or prior to the
first Business Day following the delivery of the Carve-Out Trigger Notice), provided that
(x) the Carve Out shall not be available to pay any such Professional Fees incurred in connection
with the initiation or prosecution of any Prohibited Claims or the initiation or prosecution of any
claims, causes of action, adversary proceedings or other litigation against the Administrative
Agent, the Lenders, the Prepetition Lenders or the Prepetition Agent and (y) the Carve Out shall
not be reduced by the payment of Professional Fees incurred prior to the first Business Day
following delivery of a Carve-Out Trigger Notice without regard to when such amounts are allowed by
the Bankruptcy Court. Notwithstanding anything herein to the contrary, the Carve Out shall not be
used to commence or prosecute any Prohibited Claim. Upon delivery of a Carve-Out Trigger Notice or
the commencement of a liquidation, the Borrower shall deposit the amount prior to making any
distributions of the Carve Out in a segregated account solely for payment of Professional Fees that
are within the Carve Out.




          (b) As to all Collateral, including without limitation, all cash, Cash Equivalents and real
property the title to which is held by any Loan Party, or the possession of which is held by any
Loan Party in the form of a leasehold interest, each Loan Party hereby assigns and conveys as
security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the
Administrative Agent all of the right, title and interest of the Borrower and such Guarantor in all
of such Collateral, including without limitation, all cash, Cash Equivalents and owned real
property and in all such leasehold interests, together in each case with all of the right, title
and interest of the Borrower and such Guarantor in and to all buildings, improvements, and fixtures
related thereto, any lease or sublease thereof, all general intangibles relating thereto and all
proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to and subject to
the terms of the Final Order, the Liens granted in favor of the Administrative Agent (on behalf of
the Lenders) in all of the Collateral shall be perfected without the recordation of any Uniform
Commercial Code financing statements, notices of Lien or other instruments of mortgage or
assignment. The Borrower and each Guarantor further agrees that (a) the Administrative Agent shall
have the rights and remedies set forth in Section 11 and the Final Order in respect of the
Collateral and (b) if requested by the Administrative Agent, the Borrower and each of the
Guarantors shall enter into separate security agreements, pledge agreements and fee and leasehold
mortgages with respect to such Collateral on terms reasonably satisfactory to the Administrative
Agent.




          (c) Each Loan Party acknowledges and agrees that, subject to the terms of the Final Order, the
Prepetition Secured Parties shall receive (a) as adequate protection for, and to the extent of, any
diminution in the value of the Prepetition Secured Parties’ respective interests in their
collateral whether resulting from the imposition of the automatic stay, the priming described in
Section 2.20(a) above, the use of the Prepetition Secured Parties’ cash collateral or the use,
sale, lease, depreciation, decline in market price or other diminution in value of the Prepetition
Secured Parties’ collateral (i) a Superpriority Claim under Section 507(b) of the Bankruptcy Code
junior only the Carve Out and to the Superpriority Claim granted to the Administrative Agent and
the Lenders; and (ii) a replacement Lien on the Collateral subject and subordinate to the Carve Out
having a priority immediately junior to the priming and other Liens granted in favor of the
Administrative Agent and the Lenders hereunder and under the other Loan Documents and the Final
Order and to valid and perfected Liens which are senior (after giving effect to the Final Order) to
the Liens granted to the Administrative Agent and the Lenders pursuant to the Final Order and (b)
as further adequate protection, (i) the payment on a current basis of the reasonable fees and
expenses (including, but not limited to, the reasonable fees and disbursements of counsel or
financial advisors or third-party consultants incurred by the Prepetition Agent (including any
unpaid prepetition fees and expenses) and (ii) financial and other reporting information in
accordance with this Agreement.




29









 








          2.21 Payment of Obligations. Upon the maturity (whether by acceleration or
otherwise) of any of the Obligations under this Agreement or any of the other Loan Documents,
subject to the terms of the Final Order, the Lenders shall be entitled to immediate payment
(whether in cash or pursuant to a refinancing pursuant to the terms of the Exit Credit Agreement)
of such Obligations without further application to or order of the Bankruptcy Court.




          2.22 No Discharge; Survival of Claims. The Borrower and each Guarantor agrees that
to the extent its Obligations are not satisfied in full (including by conversion of the DIP
Facility to the Exit Facility as described in Section 2.24), (a) its Obligations shall not be
discharged by the entry of a Confirmation Order (and each Loan Party, pursuant to Section
1141(d)(4) of the Bankruptcy Code, hereby waives any such discharge) and (b) the Superpriority
Claim granted to the Administrative Agent and the Lenders pursuant to the Final Order and described
in Section 2.20 and the Liens granted to the Administrative Agent pursuant to the Final Order and
described in Section 2.20 shall not be affected in any manner by the entry of a Confirmation Order.




          2.23 Conflicts. To the extent of any conflict between the provisions of this
Agreement and provisions contained in the Final Order, the provisions of the Final Order shall
govern.




          2.24 Conversion to Exit Facility. Upon the satisfaction or waiver by the requisite
parties of the conditions precedent set forth in Section 5 of the Exit Credit Agreement,
automatically and without any further consent or action required by the Administrative Agent, any
Lender or any Loan Party, (i) the Borrower, in its capacity as reorganized Lear Corporation, and
each Guarantor, in its capacity as a reorganized Debtor, to the extent such Person is required
under the Exit Credit Agreement to continue to be a guarantor of the Exit Facility, shall assume
all Obligations in respect of the Loans hereunder and all other monetary obligations in respect
hereof, (ii) each outstanding Loan hereunder shall be continued as an Exit Loan (as defined in the
Exit Credit Agreement) under the Exit Facility, (iii) each Lender hereunder shall be a Lender (as
defined in the Exit Credit Agreement) under the Exit Facility, (iv) accrued and unpaid interest on
the Loans shall be payable in cash on the Effective Date and (v) this Agreement and the Loan
Documents shall be superseded and replaced by the Exit Facility Documentation. Each of the Loan
Parties, the Administrative Agent and the Lenders shall take such actions and execute and deliver
such agreements, instruments or other documents as the Administrative Agent may reasonably request
to give effect to the provisions of this Section 2.24 and as are required to complete the Schedules
to the Exit Facility Documentation; provided, however, that any such action by the
Administrative Agent or any of the Lenders shall not be a condition precedent to the effectiveness
of the provisions of this Section 2.24.




SECTION 3. [RESERVED]




SECTION 4. REPRESENTATIONS AND WARRANTIES




          To induce the Administrative Agent 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 Administrative Agent 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 the Petition Date which does not disproportionately
adversely affect the Borrower and its Subsidiaries, taken as a whole, shall have a Material Adverse
Effect).





30












 





          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 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 Final 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. Except for the entry by the Bankruptcy Court of the Final
Order, 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, and the Final Order has not been vacated, reversed or
stayed, or modified or amended in a manner that would reasonably be expected to be adverse to the
interests of the Required Lenders. Upon entry by the Bankruptcy Court of the Final Order, each
Loan Document has been duly executed and delivered on behalf of each Loan Party thereto. Upon
entry by the Bankruptcy Court of the Final Order, this Agreement constitutes, and each other Loan
Document upon execution will constitute, a legal, valid and binding obligation of each Loan Party
thereto, enforceable against each such Loan Party in accordance with its terms and the Final Order.




          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 entered into after the
Petition Date 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
post-petition Contractual Obligation (other than the Liens created by this Agreement and the Final
Order).




          4.5 Litigation. Other than the Cases, 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
that could reasonably be expected to have a Material Adverse Effect.




          4.6 No Default. 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
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 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




31









 




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 Closing Date, (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) there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or commitments (other than
stock options or similar equity




32









 




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, except as created by
the Loan Documents and the Prepetition Loan Documents.




          4.15 Use of Proceeds. The proceeds of the Loans shall be used (a) for working
capital and other general corporate purposes of the Group Members (including, without limitation,
“Chapter 11 expenses” (or “administrative costs reflecting Chapter 11 expenses”)) and the payment
of fees and expenses incurred in connection with entering into this Agreement and the transactions
contemplated hereby, subject to the Final Order; and (b) to make adequate protection payments to,
or for the benefit of, the Prepetition Secured Parties in accordance with Section 2.20, the Final
Order and the Budget. 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 past 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, any prior time, been in
compliance, with all applicable Environmental Laws, and there is no contamination at, under
or about the



33









 







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. 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 April 4, 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, other casualty, employee fidelity, workers’ compensation, employee health and
welfare, title, 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.




SECTION 5. CONDITIONS PRECEDENT




          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:




34









 





     (a) Credit Agreement. The Administrative Agent shall have received this
Agreement, executed and delivered by the Administrative Agent, the Borrower, each Guarantor
and each Person listed on Schedule 1.1A and Lear ASC Corporation
shall have become a Guarantor by executing a joinder agreement in the
form specified by the Administrative Agent.




     (b) 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.




     (c) 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. All such
amounts will be paid with proceeds of Loans made on the Closing Date and will be reflected
in the funding instructions given by the Borrower to the Administrative Agent on or before
the Closing Date.




     (d) 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.




     (e) 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.




     (f) Pledged Stock; Stock Powers; Pledged Notes. The Administrative Agent shall
have received (i) the certificates representing the shares of Capital Stock pledged pursuant
to the Final Order, 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 pursuant to the Final Order 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 Prepetition Agent under the
Prepetition Loan Documents.




     (g) Final Order. The Administrative Agent shall have received a copy of the
Final Order authorizing the Loan Documents and granting the Superpriority Claim status and
Liens described in Section 2.20 and finding that the Lenders are extending credit to the
Borrower in good faith within the meaning of Section 364(e) of the Bankruptcy Code, which
Final Order shall (i) have been entered with the consent or non-objection of a preponderance
(as determined by the Administrative Agent) of the Prepetition Obligations and on prior
notice to such parties



35









 







(including without limitation, the Prepetition Secured Parties), (ii) be substantially
consistent with Exhibit A (with such modifications as may be reasonably acceptable to the
Administrative Agent), (iii) authorize extensions of credit in amounts not in excess of
$500,000,000, (iv) authorize the use of Cash Collateral under the Prepetition Credit
Agreement and provide for adequate protection in favor of the Prepetition Secured Parties as
set forth in Section 2.20(c), (v) contain customary provisions regarding challenges to the
prepetition claims and liens of the Prepetition Secured Parties and other matters, (vi)
approve the payment by the Borrower of all fees owed under Section 2.6 and the issuance of
additional consideration provided pursuant to Section 2.7, (vii) be in full force and effect
and (viii) not have been stayed, reversed, vacated, rescinded, modified or amended in any
respect and, if the Final Order is the subject of a pending appeal in any respect, none of
the making of such extension of credit, the grant of Liens and Superpriority Claims pursuant
to Section 2.20 or the performance by the Loan Parties of any of their respective
obligations hereunder or under the other Loan Documents or under any other instrument or
agreement referred to herein shall be the subject of a presently effective stay pending
appeal.




     (h) First Day Motion/Orders. All motions and orders submitted to the
Bankruptcy Court on or about the Petition Date shall be in form and substance reasonably
satisfactory to the Administrative Agent.




     (i) Budget/Initial Cash Flow Forecast. The Borrower shall have delivered to
the Administrative Agent and the Lenders (i) a detailed consolidated budget, on a quarterly
basis, for the 15-month period ending October 2, 2010 (including a projected consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such 15-month period,
the related consolidated statements of projected cash flow and projected income and a
description of the underlying assumptions applicable thereto) (the “Budget”), and
(ii) the initial 13-week cash flow forecast in form reasonably satisfactory to the Lenders
(the “Initial Cash Flow Forecast”) which, in each case, shall be accompanied by a
certificate of the Borrower executed by a Responsible Officer, on behalf of the Borrower,
stating that such budget is based upon good faith estimates and assumptions believed by
management of the Borrower to be reasonable at the time made and that such Responsible
Officer executing such certificate, on behalf of the Borrower (not in his or her individual
capacity but solely as a Responsible Officer), has not had reason to believe that such
Budget or Initial Cash Flow Forecast, as applicable, in light of such assumptions is
incorrect or misleading in any material respect.




     (j) Borrowing Notice. The Administrative Agent shall have received the
Borrowing Notice, executed and delivered by the Borrower.




     (k) 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.




     (l) Legal Opinion of Counsel to the Borrower. The Administrative Agent shall
have received an opinion, in form and substance reasonably satisfactory to the
Administrative Agent, of counsel to the Loan Parties.




     (m) 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”).



36









 






     (n) Ratings. The DIP Facility shall have received a rating from both S&P and
Moody’s.


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), by
an independent certified public accountants of nationally recognized standing;




     (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 in June 2009, the unaudited consolidated and consolidating (on the
same basis as the Borrower prepared consolidating financial statements prior to the Petition
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 Petition 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; and




     (c) as soon as available and in any event not later than 35 days after the end of each
fiscal month, commencing with the fiscal month ended August 1, 2009, unaudited balance
sheets of the Borrower on a consolidated and consolidating (on the same basis as the
Borrower prepared consolidating financial statements prior to the Petition Date) basis with
its Subsidiaries and the related statements of operations and the related statements of cash
flows of the Borrower on a consolidated and consolidating (on the same basis as the Borrower
prepared consolidating financial statements prior to the Petition Date) basis with its
Subsidiaries, that shall be certified by a Responsible Officer, on behalf of the Borrower,
to be complete and correct in all material respects and to present fairly, in accordance
with GAAP, the financial position of the Borrower on a consolidated basis with its
Subsidiaries as at the end of such period and the results of operations for such period, and
for the elapsed portion of the year ended with the last day of such period.



37









 




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 (j), to the relevant
Lender):





     (a) [RESERVED];




     (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, 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) no later than Tuesday of every calendar week, commencing the first Tuesday
following the Closing Date, a rolling 13-week cash flow projection of the Borrower and its
Subsidiaries substantially in the form of the Initial Cash Flow Forecast (each, a “Cash
Flow 



38









 







Forecast”), certified by a Responsible Officer of the Borrower as being
prepared based upon good faith estimates and assumptions that are believed by such
Responsible Officer to be reasonable at the time made and that such Responsible Officer is
not aware of (x) any information contained in such cash flow forecast which is false or
misleading in any material respect or (y) any omission of information which causes such cash
flow forecast to be false or misleading in any material respect (it being understood that
any such forecasts are estimates and that actual results may vary materially from such
forecasts);




     (g) no later than the fifteenth Business Day of every fiscal month, commencing for
fiscal month August, a certificate of a Responsible Officer of the Borrower containing all
information and calculations necessary for determining compliance with Section 7.1(b) as of
the close of business on the last day of the previous fiscal month;




     (h) to the Administrative Agent and counsel to the Administrative Agent,
contemporaneously upon such filing or distribution, copies of all pleadings, motions,
applications, judicial information, financial information and other documents to be filed by
or on behalf of the Borrower or any of the Guarantors with the Bankruptcy Court or the
United States Trustee in the Cases, or to be distributed by or on behalf of the Borrower or
any of the Guarantors to any official committee appointed in the Cases (other than (a)
pleadings, motions applications or other filings which would reasonably be expected to be
immaterial to the Administrative Agent and the Lenders or (b) emergency pleadings, motions
or other filings where, despite such Debtor’s best efforts, such simultaneous notice is
impracticable or (c) copies of pleadings and motions in connection with the DIP Facility or
the Cash Collateral shall be delivered prior to such filing or distribution thereof)
provided however, notwithstanding any of the foregoing to the contrary, the Loan
Parties’ obligation in this clause (h) shall be deemed satisfied if and to the extent any of
such information and documents is publicly available;




     (i) 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




     (j) 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.


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. Except in accordance with the Bankruptcy Code or by an
applicable order of the Bankruptcy Court, pay, discharge or otherwise satisfy at or before maturity
or before they become delinquent, as the case may be, (i) all its post-petition material taxes and
other




39









 




material obligations of whatever nature that constitute administrative expenses under Section
503(b) of the Bankruptcy Code in the Cases, except, so long as no material property (other than
money for such obligation and the interest or penalty accruing thereon) of any Loan Party is in
danger of being lost or forfeited as a result thereof, no such obligation need be paid if the
amount or validity thereof is currently being contested in good faith by appropriate proceedings
and any required reserves in conformity with GAAP with respect thereto have been provided on the
books of the relevant Loan Party and (ii) all material obligations arising from Contractual
Obligations entered into after the Petition Date or from Contractual Obligations entered into prior
to the Petition Date and assumed and which are permitted to be paid post-petition by order of the
Bankruptcy Court that has been entered with the consent of (or non-objection by) the Administrative
Agent.




          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) subject to the effect of the Cases, 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
Administrative Agent or any Lender 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 that such inspections shall
be coordinated through the Administrative Agent. The Administrative Agent 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;




     (b) any post-Petition Date litigation or proceeding affecting any Loan Party (i) in
which the amount involved is $5,000,000 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 $5,000,000; and



40









 






     (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 Lender Conference Calls. On a regular basis (but in any event no less
frequently than monthly if and to the extent requested by the Administrative Agent) at such times
as the Borrower and the Administrative Agent shall agree, host a conference call with the
Administrative Agent and the Lenders to discuss the performance of the business, strategic
alternatives and other issues as the Administrative Agent may reasonably request.




          6.10 Collateral; Further Assurances. Subject to the Final Order:





     (a) Execute and deliver, or cause to be executed and delivered, to the Administrative Agent
such documents, agreements and instruments, and take or cause to be taken such further actions
(including the filing and recording of financing statements and other documents and Mortgages)
which may be required by law or which the Administrative Agent may, from time to time, reasonably
request to carry out the terms and conditions of this Agreement and the other Loan Documents and to
ensure perfection and priority of the Liens created or intended to be created by the Collateral
Documents and the Final Order, all at the expense of the Loan Parties;




     (b) upon the request of the Administrative Agent (and subject to applicable legal and
contractual restrictions), cause each of its wholly-owned Domestic Subsidiaries specified by the
Administrative Agent to become a Guarantor, by executing a joinder agreement in a form specified by
the Administrative Agent, and upon execution and delivery thereof, each such Person (i) shall
automatically become a Guarantor hereunder and thereupon shall have all of the rights, benefits,
duties, and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the
Administrative Agent in any property of such Loan Party which constitutes (or is a type which
constitutes) Collateral; and




     (c) from after the date which is 30 days after the Closing Date (which period may be extended
by the Administrative Agent from time to time in its sole discretion), 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.




41












 





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) Minimum Cumulative Consolidated EBITDA.
Permit the Consolidated EBITDA as at the last day of any Test Period ending on any date set forth
below, to be less than the amount set forth below opposite such date:




	 	 	 
	Date	 	Cumulative Consolidated EBITDA
	 	 	 
	October 3, 2009
	 	($25,000,000)
	 	 	 
	December 31, 2009
	 	$65,000,000
	 	 	 
	April 3, 2010
	 	$100,000,000
	 	 	 
	July 3, 2010
	 	$200,000,000
	 	 	 
	October 2, 2010
	 	$315,000,000






          (b) Minimum Liquidity. Permit Liquidity, as of the last day of any fiscal month,
commencing August 1, 2009, to be less than the amount set forth below opposite such date




	 	 	 	 	 
	Date	 	Minimum Liquidity
	 
	 	 	 	 
	August 1, 2009

	 	$	900,000,000	 
	 
	 	 	 	 
	August 29, 2009

	 	$	900,000,000	 
	 
	 	 	 	 
	October 3, 2009

	 	$	900,000,000	 
	 
	 	 	 	 
	October 31, 2009

	 	$	900,000,000	 
	 
	 	 	 	 
	November 28, 2009

	 	$	900,000,000	 
	 
	 	 	 	 
	December 31, 2009

	 	$	900,000,000	 
	 
	 	 	 	 
	January 30, 2010

	 	$	700,000,000	 
	 
	 	 	 	 
	February 27, 2010

	 	$	700,000,000	 
	 
	 	 	 	 
	April 3, 2010

	 	$	700,000,000	 
	 
	 	 	 	 
	May 1, 2010

	 	$	700,000,000	 
	 
	 	 	 	 
	May 29, 2010

	 	$	700,000,000	 






42









 






	 	 	 	 	 
	 
	 	 	 	 
	July 3, 2010

	 	$	700,000,000	 
	 
	 	 	 	 
	July 31, 2010

	 	$	700,000,000	 
	 
	 	 	 	 
	August 28, 2010

	 	$	700,000,000	 
	 
	 	 	 	 
	October 2, 2010

	 	$	700,000,000	 






          (c) Limitation on Capital Expenditures. Permit the aggregate amount of Capital
Expenditures made by the Loan Parties during any Test Period ending on any date set forth below to
exceed the amount set forth opposite such date:




	 	 	 	 	 
	Date	 	Cumulative Capital Expenditure Amount
	 
	 	 	 	 
	October 3, 2009

	 	$	50,000,000	 
	 
	 	 	 	 
	December 31, 2009

	 	$	100,000,000	 
	 
	 	 	 	 
	April 3, 2010

	 	$	140,000,000	 
	 
	 	 	 	 
	July 3, 2010

	 	$	180,000,000	 
	 
	 	 	 	 
	October 2, 2010

	 	$	230,000,000	 






          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 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 Petition Date and listed on Schedule 7.2(d) and,
except with respect to any such Indebtedness of Debtors, any refinancings, refundings,
renewals or extensions thereof (without increasing, or shortening the maturity of, the
principal amount thereof) (any such indebtedness, “Refinancing Indebtedness”);
provided however that (i) to the extent such Refinancing Indebtedness refinances
Indebtedness subordinated or pari passu to the Obligations, such Refinancing Indebtedness is
subordinated or pari passu to the Obligations at least to the same extent as the
Indebtedness being refunded or refinanced and (ii) the obligors in respect of such
Refinancing Indebtedness (including in their capacities as primary obligor and guarantor)
are the same as for the Indebtedness being refinanced;



43









 






     (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 $15,000,000
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, $15,000,000 and (y)
with respect to Subsidiaries that are not Loan Parties, $50,000,000, in each case, at any
one time outstanding;




     (g) Indebtedness of the Borrower or any of its Subsidiaries incurred after the Petition
Date 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 incurred after the Petition
Date 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 (1) the sum (without duplication) 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 $250,000,000 at any time and (2) at any time no more than $65,000,000 of such letters
of credit shall be issued by Persons other than Lenders or affiliates thereof;




     (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 $50,000,000 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 $75,000,000;




     (m) 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 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 $25,000,000 at any time.



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




44









 









     (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 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 Petition Date and listed on Schedule 7.3(f) and, except
with respect to Liens of Debtors, 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 30 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;




     (h) Liens created pursuant to this Agreement and the Final Order;




     (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;



45









 






     (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) $5,000,000 at any one time;




     (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) $15,000,000 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(l) 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(l), 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(l);




     (v) the exchange or transfer within China of Chinese Acceptance Notes by Chinese
Subsidiaries of the Borrower in the ordinary course of business; and



46









 






     (w) 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 Subsidiaries of the
Borrower.



          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); and




     (d) any Disposition otherwise permitted pursuant to Section 7.5 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;




     (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



47









 






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 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 $50,000,000 in the aggregate;
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 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 and (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.




          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, provided
that, in the case of the Loan Parties, the aggregate amount of such loans and advances shall
not exceed $500,000 at any one time outstanding;




     (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) any Loan Party in a Foreign
Subsidiary



48









 






to fund in the ordinary course of business foreign operations, (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 $100,000,000 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 Petition Date;




     (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 $25,000,000 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) 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
$75,000,000 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 is (a) otherwise permitted under this Agreement, or (b) in the
ordinary course of business of the relevant Group 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.




          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.





49












 





          7.10 Changes in Fiscal Periods. Permit the fiscal year of the Borrower to end on a
day other than December 31 or change the Borrower’s method of determining fiscal quarters.




          7.11 Negative Pledge Clauses. Enter into or permit to exist or become effective any
agreement that prohibits or limits the ability of any Group Member 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)
the Final Order, this Agreement and the other Loan Documents, (b) any agreements governing any
purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in which case, any
prohibition or limitation shall only be effective against the assets financed thereby and proceeds
thereof), (c) the Prepetition Loan Documents and any agreement existing as of the Petition Date
which has been assumed or which remains effective after the Petition Date, (d) customary provisions
in joint venture agreements and similar agreements that restrict the transfer of assets of, or
equity interests in, joint ventures, and (e) 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 Subsidiary of the Borrower, (b) make
loans or advances to, or other Investments in, the Borrower or any other Subsidiary of the Borrower
or (c) transfer any of its assets to the Borrower or any other Subsidiary of the Borrower, except
for such encumbrances or restrictions existing under or by reason of (i) any restrictions existing
under the Loan Documents and the Prepetition Loan Documents, and any restrictions existing under or
in connection with any other Indebtedness existing as of the Petition Date which has been assumed
or which remains effective after the Petition Date, (ii) customary provisions in joint venture
agreements and similar agreements that restrict the transfer of equity interests in joint ventures
(which are not Subsidiaries of the Borrower) (in which case such restrictions shall relate only to
assets of, or equity interests in, 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) hereof (as long as such
restrictions apply to the property financed thereby) and (k) (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. (a) Use the proceeds of the Loans for purposes other than
those described in Section 4.15 or (b) use any portion of the Loans, the Collateral, the Carve Out
or the Cash Collateral of the Prepetition Secured Parties to commence or prosecute any Prohibited
Claim (provided that the restriction in the foregoing clause (b) does not apply to
investigations of Prohibited Claims).




50









 








          7.15 Chapter 11 Claims. In the case of the Debtors, incur, create, assume, suffer
to exist or permit any other Superpriority Claim or Lien on any Collateral which is senior to, or
pari passu with, the Obligations hereunder, in each case except for the Carve-Out.




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 (ii) of Section 6.4(a) (with respect to the Borrower only), Section
6.7(a) or Section 7 of this 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 10 days after notice thereof from the Administrative Agent or the Required
Lenders to the Borrower; or




     (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 and, in case of the Debtors, any pre-Petition Date Indebtedness) 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 post-Petition Date 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 post-Petition Date Indebtedness the outstanding principal amount
(or the termination value, as applicable) of which exceeds in the aggregate $10,000,000; or



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     (f) any of the Cases shall be dismissed or converted to a case under Chapter 7 of the
Bankruptcy Code or a trustee under Chapter 11 of the Bankruptcy Code shall be appointed in
any of the Cases; or




     (g) (i) an order of the Bankruptcy Court shall be entered granting another
Superpriority Claim (other than the Carve-Out) or Lien pari passu with or senior to that
granted (x) to the Lenders and the Administrative Agent pursuant to this Agreement and the
Final Order, or (y) to the Prepetition Secured Parties pursuant to the Final Order (other
than the Carve Out); (ii) an order of the Bankruptcy Court shall be entered reversing,
staying for a period in excess of ten (10) days, vacating or otherwise amending,
supplementing or modifying the Final Order without the written consent of the Administrative
Agent and the Required Lenders; (iii) the Prepetition Secured Parties’ Cash Collateral shall
be used in a manner inconsistent with the Final Order; (iv) an order of a court of competent
jurisdiction shall be entered terminating the use of the Prepetition Secured Parties’ Cash
Collateral; or (v) an order of the Bankruptcy Court shall be entered under Section 1106(b)
of the Bankruptcy Code in any of the Cases appointing an examiner having enlarged powers
relating to the operation of the business of the Loan Parties (i.e., powers beyond those set
forth under Sections 1106(a)(3) and (4) of the Bankruptcy Code) and such order shall not be
reversed or vacated within 30 days after the entry thereof;




     (h) any Loan Party shall make any payments relating to pre-Petition Date obligations
other than (i) as permitted under the Final Order, (ii) in accordance with, and to the
extent authorized by, a “first day” order reasonably satisfactory to the Administrative
Agent and (iii) as otherwise permitted under this Agreement or by the Administrative Agent,
including pursuant to the Final Order and in connection with adequate protection payments
described in Section 2.20(c); or




     (i) the entry of an order granting relief from the automatic stay so as to allow a
third party to proceed against any property of any Loan Party which has a value in excess of
$10,000,000 in the aggregate; or




     (j) (i) the filing of any pleading by any Loan Party seeking, or otherwise consenting
to, any of the matters set forth in paragraphs (f), (g), (h) or (i) above in this Section or
(ii) any of the Debtors shall seek support for, or fail to contest in good faith any of the
matters set forth in paragraphs (f), (g), (h) or (i) above in this Section; or




     (k) (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
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




     (l) one or more judgments or decrees required to be satisfied as an administrative
expense claim shall be entered after the Petition Date against any Loan Party 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 $10,000,000 or more, and all such



52









 







judgments or decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 45 days from the entry thereof; or




     (m) (i) except as permitted under the Final Order, any proceeding shall be commenced by
any Loan Party seeking, or otherwise consenting to, (x) the invalidation, subordination or
other challenging of the Superpriority Claims and Liens granted to secure the Obligations or
(y) any relief under Section 506(c) of the Bankruptcy Code with respect to any Collateral or
(ii) the Borrower or any Subsidiary shall file a motion, pleading or proceeding which could
reasonably be expected to result in a material impairment of the rights or interests of the
Lenders or a determination by a court with respect to a motion, pleading or proceeding
brought by another party which results in such a material impairment; or




     (n) (i) the Bankruptcy Court shall confirm a plan in any of the Cases of the Debtors
that does not provide for payment in full in cash of the Obligations (other than unasserted
contingent obligations as long as such plan otherwise provides for payment of such
obligations in a manner satisfactory to the Administrative Agent) on the Consummation Date
or the assumption of the Obligations by the reorganized Debtors in accordance with Section
2.24, (ii) the Bankruptcy Court shall enter an order which dismisses any of the Cases of the
Debtors and which does not provide for payment in full in cash of the Obligations (other
than unasserted contingent obligations as long as such plan otherwise provides for payment
of such obligations in a manner satisfactory to the Administrative Agent) or the assumption
of the Obligations by the reorganized Debtors in accordance with Section 2.24 or (iii) any
of the Debtors shall seek support for, or fail to contest in good faith to the filing or
confirmation of, a plan or the entry of such an order described in clauses (i) or (ii)
above; or




     (o) the Final Order 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 or Superpriority
Claims created by the Final Order 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 thereof; or




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




     (q) the Debtors shall not have filed a Conforming Plan and the Disclosure Statement
with the Bankruptcy Court on or before 210 days following the Petition Date, or such later
date as may be agreed to by the Administrative Agent in its reasonable discretion; or




     (r) the Bankruptcy Court shall not have entered an order, in form and substance
reasonably satisfactory to the Required Lenders, approving the Disclosure Statement on or
before 275 days (plus the number of days by which the Scheduled Maturity Date shall have
been extended pursuant to the Extension Option) following the Petition Date, or such later
date as may be agreed to by the Administrative Agent in its reasonable discretion; or




     (s) the Bankruptcy Court shall not have entered an order, in form and substance
reasonably satisfactory to the Required Lenders, confirming a Conforming Plan on or before
335 days (plus the number of days by which the Scheduled Maturity Date shall have been
extended pursuant to the Extension Option) following the Petition Date, or such later date
as may be agreed to by the Administrative Agent in its reasonable discretion; or




     (t) the Effective Date of a Conforming Plan shall not have occurred on or before 365
days (plus the number of days by which the Scheduled Maturity Date shall have been extended



53









 







pursuant to the Extension Option) following the Petition Date, or such later date as
may be agreed to by the Administrative Agent in its reasonable discretion; or




     (u) any material provision of this Agreement shall cease to be valid and binding on the
Debtors or any Debtor shall file a motion, pleading or proceeding seeking, consenting to or
asserting the invalidity of any material provision of this Agreement;


then, and in any such event, the Administrative Agent may, and, at the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower (with a copy to the Prepetition
Agent, counsel for any statutory committee appointed in the Cases and to the United States
Trustee), take one or more of the following actions, at the same or different times
(provided that with respect to clause (iii) below and the enforcement of Liens or other
remedies with respect to the Collateral under clause (iv) below, the Administrative Agent shall
provide the Borrower (with a copy to the Prepetition Agent, counsel for any statutory committee
appointed in the Cases and to the United States Trustee) with five Business Days’ written notice
prior to taking the action contemplated thereby; provided, further, that upon
receipt of the notice referred to in the immediately preceding clause, the Borrower may continue to
make ordinary course and Carve-Out disbursements from the account referred to in clause (iii) below
but may not withdraw or disburse any other amounts from such account) (in any hearing after the
giving of the aforementioned notice, the only issue that may be raised by any party in opposition
of any such action shall be whether, in fact, an Event of Default has occurred and is continuing):
(i) terminate forthwith the Commitments; (ii) declare the Loans then outstanding to be forthwith
due and payable, whereupon the principal of the Loans, together with accrued interest thereon and
any unpaid accrued fees and all other Obligations of the Borrower accrued hereunder and under any
other Loan Document, shall become forthwith due and payable, without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived by the Loan Parties,
anything contained herein or in any other Loan Document to the contrary notwithstanding; (iii)
subject to the Final Order, set-off amounts held as cash collateral or in the accounts of the Loan
Parties and apply such amounts to the Obligations of the Loan Parties hereunder and under the other
Loan Documents in accordance with Section 11.3; and (iv) exercise any and all remedies under this
Agreement, the Final Order, and applicable law available to the Administrative Agent and the
Lenders.




SECTION 9. THE ADMINISTRATIVE AGENT




          9.1 Appointment. Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Lender under this Agreement and the other Loan Documents,
and each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take
such action on its behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to the Administrative
Agent by the terms of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Administrative Agent.




          9.2 Delegation of Duties. The Administrative Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care. The exculpatory provisions of this
Agreement and of the other Loan



54









 






Documents shall apply to any such agent or attorney-in-fact and to their Related Parties (as
defined below).




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




          9.4 Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, 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
Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if
so specified by this Agreement, all Lenders 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 Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders (or, if so specified by this Agreement, all
Lenders or any other instructing group of Lenders specified by this Agreement), and such request
and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and
all future holders of the Loans.




          9.5 Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative
Agent has received notice from a Lender or the Borrower referring to this Agreement, describing
such Default or Event of Default and stating that such notice is a “notice of default”. In the
event that the Administrative Agent receives such a notice, the Administrative Agent shall give
notice thereof to the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so
specified by this Agreement, all Lenders or any other instructing group of Lenders specified by
this Agreement); provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or Event of Default as
they shall deem advisable in the best interests of the Lenders.




55









 








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




          9.7 Indemnification. The Lenders agree to indemnify the Administrative Agent and
its officers, directors, employees, agents, affiliates, advisors, and controlling persons’ (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 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. The Administrative Agent and its affiliates
may make loans to, accept deposits from and generally engage in any kind of business with any Loan
Party as though the Administrative Agent were not the Administrative Agent. With respect to its
Loans made or renewed by it, the Administrative Agent shall have the same rights and powers under
this Agreement and the other Loan Documents as any Lender and may exercise the same as though it
were not the Administrative Agent, and the terms “Lender” and “Lenders” shall include the
Administrative Agent in its individual capacity.




56









 








          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 12.5 shall continue to inure to its benefit.




          9.10 Execution of Loan Documents. The Lenders hereby empower and authorize the
Administrative Agent, 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 Administrative Agent 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 Administrative Agent 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.




SECTION 10. GUARANTEE




          10.1 Guarantee. 




          (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantees to the Administrative Agent, for the ratable benefit of the Lenders and their respective
successors, indorsees, transferees and assigns permitted hereunder, the prompt and complete payment
and performance by the Borrower (or, in the case of any Specified Letter of Credit, the relevant
Group Member(s)) when due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations;




          (b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum
liability of each Guarantor under this Section 10.1 and under the other Loan Documents shall in no
event exceed the amount which is permitted under applicable federal and state laws relating to the
insolvency of debtors.




          (c) Each Guarantor agrees that the Obligations may at any time and from time to time exceed
the amount of the liability of such Guarantor hereunder without impairing the guarantee contained
in this Section 10 or affecting the rights and remedies of the Administrative Agent or any Lender
hereunder.




          (d) The guarantee contained in this Section 10 shall remain in full force and effect until all
the Obligations and the obligations of each Guarantor under the guarantee contained in this Section
10 shall have been satisfied by payment in full (other than unasserted contingent obligations) and
the Commitments shall be terminated.




57









 








          (e) No payment made by the Borrower, any of the Guarantors, any other guarantor or any other
Person or received or collected by the Administrative Agent or any Lender from the Borrower, any of
the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or
any set-off or appropriation or application at any time or from time to time in reduction of or in
payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the
liability of any Guarantor hereunder which shall, notwithstanding any such payment (other than any
payment made by such Guarantor in respect of the Obligations or any payment received or collected
from such Guarantor in respect of the Obligations), remain liable for the Obligations up to the
maximum liability of such Guarantor hereunder until the Obligations are paid in full (other than
unasserted contingent obligations) and the Commitments are terminated.




          10.2 Right of Contribution. Each Guarantor hereby agrees that to the extent that a
Guarantor shall have paid more than its proportionate share of any payment made hereunder, such
Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor
hereunder which has not paid its proportionate share of such payment. Each Guarantor’s right of
contribution shall be subject to the terms and conditions of Section 10.3. The provisions of this
Section 10.2 shall in no respect limit the obligations and liabilities of any Guarantor to the
Administrative Agent and the Lenders, and each Guarantor shall remain liable to the Administrative
Agent and the Lenders for the full amount guaranteed by such Guarantor hereunder.




          10.3 No Subrogation. Notwithstanding any payment made by any Guarantor hereunder or
any set-off or application of funds of any Guarantor by the Administrative Agent or any Lender, no
Guarantor shall be entitled to be subrogated to any of the rights of the Administrative Agent or
any Lender against the Borrower or any other Guarantor or any collateral security or guarantee or
right of offset held by the Administrative Agent or any Lender for the payment of the Obligations,
nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement from the
Borrower or any other Guarantor in respect of payments made by such Guarantor hereunder, until all
amounts owing to the Administrative Agent and the Lenders by the Borrower on account of the
Obligations are paid in full. If any amount shall be paid to any Guarantor on account of such
subrogation rights at any time when all of the Obligations shall not have been paid in full, such
amount shall be held by such Guarantor in trust for the Administrative Agent and the Lenders,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor,
be turned over to the Administrative Agent in the exact form received by such Guarantor (duly
indorsed by such Guarantor to the Administrative Agent, if required), to be applied against the
Obligations, whether matured or unmatured, in accordance with the terms of this Agreement.




          10.4 Amendments, etc. with respect to the Obligations. Each Guarantor shall remain
obligated hereunder notwithstanding that, without any reservation of rights against any Guarantor
and without notice to or further assent by any Guarantor, any demand for payment of any of the
Obligations made by the Administrative Agent or any Lender may be rescinded by the Administrative
Agent or such Lender and any of the Obligations continued, and the Obligations, or the liability of
any other Person upon or for any part thereof, or any collateral security or guarantee therefor or
right of offset with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or released by the
Administrative Agent or any Lender, and this Agreement and the other Loan Documents and any other
documents executed and delivered in connection herewith or therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Administrative Agent (or the Required
Lenders or all Lenders, as the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the Administrative Agent or
any Lender for the payment of the Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Administrative Agent nor any Lender shall have any



58









 






obligation to protect, secure, perfect or insure any Lien at any time held by it as security
for the Obligations or for the guarantee contained in this Section 10 or any property subject
thereto.




          10.5 Guarantee Absolute and Unconditional. Each Guarantor waives any and all notice
of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of
reliance by the Administrative Agent or any Lender upon the guarantee contained in this Section 10
or acceptance of the guarantee contained in this Section 10; the Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon the guarantee contained in this Section 10; and all dealings
between the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and
the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon the guarantee contained in this Section 10. Each Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon
the Borrower or any of the Guarantors with respect to the Obligations. Each Guarantor understands
and agrees that the guarantee contained in this Section 10 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the validity or
enforceability of this Agreement or any other Loan Document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any Lender, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any time be available to
or be asserted by the Borrower or any other Person against the Administrative Agent or any Lender,
or (c) any other circumstance whatsoever (with or without notice to or knowledge of the Borrower or
such Guarantor) which constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrower for the Obligations, or of such Guarantor under the guarantee contained
in this Section 10, in bankruptcy or in any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any Guarantor, the Administrative
Agent or any Lender may, but shall be under no obligation to, make a similar demand on or otherwise
pursue such rights and remedies as it may have against the Borrower, any other Guarantor, or any
other Person or against any collateral security or guarantee for the Obligations or any right of
offset with respect thereto, and any failure by the Administrative Agent or any Lender to make any
such demand, to pursue such other rights or remedies or to collect any payments from the Borrower,
any other Guarantor, or any other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of the Borrower, any other
Guarantor, or any other Person or any such collateral security, guarantee or right of offset, shall
not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect
the rights and remedies, whether express, implied or available as a matter of law, of the
Administrative Agent or any Lender against any Guarantor. For the purposes hereof “demand” shall
include the commencement and continuance of any legal proceedings.




          10.6 Reinstatement. The guarantee contained in this Section 10 shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by the Administrative
Agent or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
any Loan Party, or upon or as a result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, any Loan Party or any substantial part of its property, or
otherwise, all as though such payments had not been made.




          10.7 Payments. Each Guarantor hereby guarantees that payments hereunder will be
paid to the Administrative Agent without set-off or counterclaim in Dollars at the Funding Office.





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SECTION 11. REMEDIES; APPLICATION OF PROCEEDS




          11.1 Remedies; Obtaining the Collateral Upon Default. Upon the occurrence and
during the continuance of an Event of Default and with not fewer than 5 days’ prior written notice
by the Administrative Agent (or such longer time as may be required pursuant to the terms of the
Final Order), to the extent any such action is not inconsistent with the Final Order or Section 8,
the Administrative Agent, in addition to any rights now or hereafter existing under applicable law,
and without application to or order of the Bankruptcy Court, shall have all rights as a secured
creditor under the Uniform Commercial Code in all relevant jurisdictions and may:




          (a) personally, or by agents or attorneys, immediately retake possession of the Collateral or
any part thereof, from the Borrower, any Guarantor, or any other Person who then has possession of
any part thereof with or without notice or process of law (but subject to any Requirements of Law),
and for that purpose may enter upon the Borrower’s or any Guarantor’s premises where any of the
Collateral is located and remove the same and use in connection with such removal any and all
services, supplies, aids and other facilities of the Borrower, or such Guarantor;




          (b) instruct the obligor or obligors on any agreements, instrument or other obligation
constituting the Collateral to make any payment required by the terms of such instrument or
agreement directly to any Cash Collateral account;




          (c) sell, assign or otherwise liquidate, or direct any Loan Party to sell, assign or otherwise
liquidate, any or all of the Collateral or any part thereof in accordance with Section 11.2, and
take possession of the proceeds of any such sale, assignment or liquidation; and




          (d) take possession of the Collateral or any part thereof, by directing the Borrower and any
Guarantor in writing to deliver the same to the Administrative Agent at any place or places
designated by the Administrative Agent, in which event the Borrower and such Guarantor shall at its
own expense:





     (i) forthwith cause the same to be moved to the place or places so designated by the
Administrative Agent and there delivered to the Administrative Agent,




     (ii) store and keep any Collateral so delivered to the Administrative Agent at such
place or places pending further action by the Administrative Agent as provided in Section
11.2, and




     (iii) while the Collateral shall be so stored and kept, provide such guards and
maintenance services as shall be necessary to protect the same and to preserve and maintain
them in good condition;


it being understood that the Borrower’s and each Guarantor’s obligation so to deliver the
Collateral is of the essence of this Agreement and that, accordingly, upon application to the
Bankruptcy Court, the Administrative Agent shall be entitled to a decree requiring specific
performance by the Borrower or such Guarantor of such obligation.




          11.2 Remedies; Disposition of the Collateral. Upon the occurrence and during the
continuance of an Event of Default and following not fewer than 5 days’ prior notice by the
Administrative Agent (or such longer time as may be required pursuant to the terms of the Final
Order), and to the extent not inconsistent with the Final Order or Section 8, without application
to or order of the Bankruptcy Court, any Collateral repossessed by the Administrative Agent under
or pursuant to Section




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11.1 or the Final Order or otherwise, and any other Collateral whether or not so repossessed
by the Administrative Agent, may be sold, assigned, leased or otherwise disposed of under one or
more contracts or as an entirety, and without the necessity of gathering at the place of sale the
property to be sold, and in general in such manner, at such time or times, at such place or places
and on commercially reasonable terms, in compliance with any Requirements of Law. Any of the
Collateral may be sold, leased or otherwise disposed of, in the condition in which the same existed
when taken by the Administrative Agent or after any overhaul or repair which the Administrative
Agent shall determine to be commercially reasonable. Any such disposition which shall be a private
sale or other private proceeding permitted by applicable Requirements of Law shall be made upon not
less than 10 days’ written notice to the Borrower specifying the time at which such disposition is
to be made and the intended sale price or other consideration therefor, and shall be subject, for
the 10 days after the giving of such notice, to the right of the Borrower or any nominee of the
Borrower to acquire the Collateral involved at a price or for such other consideration at least
equal to the intended sale price or other consideration so specified. Any such disposition which
shall be a public sale permitted by applicable Requirements of Law shall be made upon not less than
10 days’ written notice to the Borrower specifying the time and place of such sale and, in the
absence of applicable Requirement of Law, shall be by public auction (which may, at the
Administrative Agent’s option, be subject to reserve), after publication of notice of such auction
not less than 10 days prior thereto in USA Today and The Wall Street Journal, National Edition.
Subject to Section 11.4, to the extent permitted by any such Requirement of Law, the Administrative
Agent on behalf of the Lenders or any Lender may bid for and become the purchaser of the Collateral
or any item thereof, offered for sale in accordance with this Section 11.2 without accountability
to the Borrower, any Guarantor or the Prepetition Secured Parties (except to the extent of surplus
money received). If, under mandatory Requirements of Law, the Administrative Agent shall be
required to make disposition of the Collateral within a period of time which does not permit the
giving of notice to the Borrower as hereinabove specified, the Administrative Agent need give the
Borrower only such notice of disposition as shall be reasonably practicable.




          11.3 Application of Proceeds. (a) Notwithstanding anything to the contrary
contained in this Agreement or any other Loan Document, (i) if the Administrative Agent takes
action under Section 8 upon the occurrence and during the continuance of an Event of Default, any
payment by any Loan Party on account of principal of and interest on the Loans and any proceeds
arising out of any realization (including after foreclosure) upon the Collateral shall be applied
as follows: first, to the payment of professional fees pursuant to the Carve Out,
second, to the payment in full of all costs and out-of-pocket expenses (including without
limitation, reasonable attorneys’ fees and disbursements) paid or incurred by the Administrative
Agent or any of the Lenders in connection with any such realization upon the Collateral, and,
third, pro rata in accordance with each Lender’s Outstanding Percentage, to the payment in
full of the Loans and the Obligations (including any accrued and unpaid interest thereon, and any
fees and other Obligations in respect thereof), and (ii) any payments or distributions of any kind
or character, whether in cash, property or securities, made by any Loan Party or otherwise in a
manner inconsistent with clause (i) of this Section 11.3(a) shall be held in trust and paid over or
delivered to the Administrative Agent so that the priorities and requirements set forth in such
clause (i) are satisfied.




          (b) It is understood that the Loan Parties shall remain liable to the extent of any deficiency
between the amount of the proceeds of the Collateral and the amount of the Obligations.




          11.4 WAIVER OF CLAIMS. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE BORROWER
AND THE GUARANTORS HEREBY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW:





     (a) NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE ADMINISTRATIVE AGENT’S TAKING
POSSESSION OR THE ADMINISTRATIVE



61









 






AGENT’S DISPOSITION OF ANY OF THE COLLATERAL, INCLUDING WITHOUT LIMITATION, ANY AND ALL
PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH THE
BORROWER OR ANY GUARANTOR WOULD OTHERWISE HAVE UNDER ANY REQUIREMENT OF LAW;




     (b) ALL DAMAGES OCCASIONED BY SUCH TAKING OF POSSESSION EXCEPT ANY DAMAGES WHICH ARE
THE DIRECT RESULT OF THE ADMINISTRATIVE AGENT’S OR ANY LENDER’S BAD FAITH, GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT;




     (c) ALL OTHER REQUIREMENTS TO THE TIME, PLACE AND TERMS OF SALE OR OTHER REQUIREMENTS
WITH RESPECT TO THE ENFORCEMENT OF THE ADMINISTRATIVE AGENT’S RIGHTS HEREUNDER; AND




     (d) ALL RIGHTS OF REDEMPTION, APPRAISEMENT, STAY, EXTENSION OR MORATORIUM NOW OR
HEREAFTER IN FORCE UNDER ANY APPLICABLE LAW IN ORDER TO PREVENT OR DELAY THE ENFORCEMENT OF
THIS AGREEMENT OR THE ABSOLUTE SALE OF THE COLLATERAL OR ANY PORTION THEREOF, AND EACH LOAN
PARTY, FOR ITSELF AND ALL WHO MAY CLAIM UNDER IT, INSOFAR AS IT OR THEY NOW OR HEREAFTER
LAWFULLY MAY, HEREBY WAIVES THE BENEFIT OF ALL SUCH LAWS.



          11.5 Remedies Cumulative. Each and every right, power and remedy hereby
specifically given to the Administrative Agent and the Lenders shall be in addition to every other
right, power and remedy specifically given under this Agreement, the Final Order or the other Loan
Documents or now or hereafter existing at law or in equity, or by statute and each and every right,
power and remedy whether specifically herein given or otherwise existing may be exercised from time
to time or simultaneously and as often and in such order as may be deemed expedient by the
Administrative Agent or any Lender. All such rights, powers and remedies shall be cumulative and
the exercise or the beginning of exercise of one shall not be deemed a waiver of the right to
exercise of any other or others. No delay or omission of the Administrative Agent or any Lender in
the exercise of any such right, power or remedy and no renewal or extension of any of the
Obligations shall impair any such right, power or remedy or shall be construed to be a waiver of
any Default or Event of Default or an acquiescence therein. In the event that the Administrative
Agent shall bring any suit to enforce any of its rights hereunder and shall be entitled to
judgment, then in such suit the Administrative Agent may recover reasonable expenses, including
reasonable attorneys’ fees, and the amounts thereof shall be included in such judgment.




          11.6 Discontinuance of Proceedings. In case the Administrative Agent shall have
instituted any proceeding to enforce any right, power or remedy under this Agreement by
foreclosure, sale, entry or otherwise, and such proceeding shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the Administrative Agent, then
and in every such case the Borrower, the Administrative Agent and each holder of any of the
Obligations shall be restored to their former positions and rights hereunder with respect to the
Collateral subject to the Liens granted under this Agreement and the Final Order, and all rights,
remedies and powers of the Administrative Agent and the Lenders shall continue as if no such
proceeding had been instituted.




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SECTION 12. MISCELLANEOUS




          12.1 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 12.1. 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, 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 12.1 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; (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 this Agreement, in each case without the written
consent of all Lenders; or (vi) amend, modify or waive Section 8.1(n) without the written consent
of all Lenders. Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any waiver, the Loan
Parties, the Lenders and the Administrative Agent shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event of Default waived
shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right consequent thereon.




          (b) 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 12.6 (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



63









 






be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender
shall have against the replaced Lender. Any amendment supplement or modification hereof shall
amend, supplement or modify the corresponding provision of the Exit Facility as may be agreed by
the Administrative Agent and the Borrower without the consent of any other party.




          (c) Notwithstanding anything herein (including Section 12.1) to the contrary, the Loan Parties
may (i) make any change to the Exit Facility with the consent of the Administrative Agent to the
extent such change is not material or not adverse to the Lenders (or the lenders under the Exit
Facility) (it being agreed that the Administrative Agent shall determine, in its reasonable
discretion, whether such change is material or adverse, as the case may be) and (ii) make any
change to the Exit Facility with the consent of the Administrative Agent and the Required Lenders;
provided that any change to the Exit Facility that would require the consent of affected
lenders or all lenders under the Exit Credit Agreement in accordance with Section 10.1 of the Exit
Credit Agreement had the Exit Credit Agreement become effective and superseded this Agreement
pursuant to Section 2.24 of this Agreement shall require the consent of affected Lenders or all
Lenders, as applicable.




          12.2 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 48034
	 

	 	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 48034
	 

	 	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):
	 
	 	 
	 

	 	Kirkland & Ellis LLP
	 

	 	601 Lexington Avenue
	 

	 	New York, NY 10022
	 

	 	Telecopy: (212) 446-6460
	 

	 	Telephone: (212) 446-4792






64









 






	 	 	 
	 

	 	Email: Leonard.Klingbaum@kirkland.com
	 
	 	 
	 

	 	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:

	 	JPMorgan Chase Bank, N.A.
	 

	 	Attention: Douglas Jenks
	 

	 	Telecopy: (212) 622-4557
	 

	 	Telephone: (212) 622-4521
	 

	 	Email: douglas.jenks@chase.com
	 
	 	 
	 

	 	With copies to:
	 
	 	 
	 

	 	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 Administrative Agent or the
Lenders shall not be effective until received.




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




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





65












 





          12.4 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.




          12.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or reimburse the
Administrative Agent for all its reasonable, out-of-pocket costs and expenses incurred in
connection with the 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 of the Administrative 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 the Administrative
Agent shall deem appropriate, (b) to pay or reimburse each Lender and the Administrative 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 the
Administrative 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
Administrative Agent, (c) to pay, indemnify, and hold each Lender and the Administrative 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 the
Administrative 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
12.5 shall be payable not later than 10 days after a reasonably detailed written demand therefor.
Statements payable by the Borrower pursuant to this Section 12.5 shall be submitted to Shari
Burgess (Telecopy No. (248)




66









 







447-1593; Telephone No. 248-447-1580; and Email: sburgess@lear.com), at the address of the
Borrower set forth in Section 12.2, 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 12.5 shall survive repayment of the Loans and all other amounts payable hereunder.




          12.6 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 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 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 or, 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.



          For the purposes of this Section 12.6, “Approved Fund” means any Person (other than a
natural person) that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course 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.





     (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



67









 






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 12.5). Any
assignment or transfer by a Lender of rights or obligations under this Agreement that does
not comply with this Section 12.6 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
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
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 12.1 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 12.7(b) as though it were a
Lender, provided such Participant shall be subject to Section 12.7(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



68









 






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 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 12.6(b). Each of
the Borrower, each Lender and the Administrative Agent hereby confirms that it will not institute
against a Conduit Lender or join any other Person in instituting against a Conduit Lender any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state
bankruptcy or similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; provided, however, that each
Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other
party hereto for any loss, cost, damage or expense arising out of its inability to institute such a
proceeding against such Conduit Lender during such period of forbearance.




          12.7 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 12.6), 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



69









 






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) Subject to (i) the Carve Out, (ii) the Final Order and (iii) after giving of the notice
described in Section 8, notwithstanding the provisions of Section 362 of the Bankruptcy Code, 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
amount 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 amount
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 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.




          12.8 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.




          12.9 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.




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




          12.11 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, AND, TO THE EXTENT APPLICABLE, THE BANKRUPTCY CODE.




          12.12 Submission To Jurisdiction; Waivers. (a) Each Loan Party hereby irrevocably
and unconditionally:





     (i) submits for itself and its property in any legal action or proceeding relating to
this Agreement and the other Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of
the Bankruptcy Court and, if the Bankruptcy Court does not have (or abstains from)
jurisdiction, to



70









 






     the non-exclusive general jurisdiction of any State or Federal court of competent
jurisdiction sitting in New York County, New York;




     (ii) 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;




     (iii) 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 12.2 or at
such other address of which the Administrative Agent shall have been notified pursuant
thereto;




     (iv) 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




     (v) 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.



          (b) Each of the Administrative Agent and each Lender hereby irrevocably and unconditionally
(i) submits itself and its property in any legal action or proceeding arising as a result of a
Debtor’s enforcement of the provisions contained in Section 12.14, to the exclusive general
jurisdiction of the Bankruptcy Court, (ii) consents to the actions referred to in Section 12.14
being brought in such court and waives any objection that it may have 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, (iii) 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
party in care of the Administrative Agent at its address set forth in Section 12.2 or at such other
address of which the Borrower shall have been notified pursuant thereto and (iv) 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.




          12.13 Absence of Prejudice to the Prepetition Lenders with Respect to Matters Before the
Bankruptcy Court. No Loan Party will without the express consent of the Administrative Agent
(a) mention in any pleading or argument before the Bankruptcy Court in support of, or in any way
relating to, a position that Bankruptcy Court authorization should be granted on the ground that
such authorization is permitted by this Agreement (unless a Person opposing any such pleading or
argument relies on this Agreement to assert or question the propriety of such) or (b) in any way
attempt to support a position before the Bankruptcy Court based on the provisions of this
Agreement. The rights of the parties to the Prepetition Credit Agreement are fully reserved and
preserved.




          12.14 Specific Performance of Obligation to Convert into Exit Facility. It is
understood and agreed by the parties that money damages would not be a sufficient remedy for any
breach by the Administrative Agent or the Lenders of their obligations under Section 2.24 to
convert the DIP Facility into the Exit Facility upon satisfaction of the applicable conditions
precedent and each non-breaching party shall be entitled to seek specific performance and
injunctive or other equitable relief, including attorneys fees and costs, as a remedy of any such
breach, and each party agrees to waive any requirement for the securing or posting of a bond in
connection with such remedy.




          12.15 Acknowledgements. Each Loan Party hereby acknowledges that:




71









 









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




     (b) neither the Administrative Agent nor any Lender has any fiduciary relationship with
or duty to 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 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.



          12.16 Releases of Guarantees and Liens. (a) Notwithstanding anything to the
contrary contained herein or in any other Loan Document, the Administrative Agent is hereby
irrevocably authorized by each Lender (without requirement of notice to or consent of any Lender
except as expressly required by Section 12.1) 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 12.1 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 shall have
been paid in full, the Collateral shall be released from the Liens created by the Final Order, and
all obligations related thereto (other than those expressly stated to survive such termination) of
the Administrative Agent and each Loan Party shall terminate, all without delivery of any
instrument or performance of any act by any Person.




          12.17 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, (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 the Cases, 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 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.




72









 








          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.




          12.18 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.




          12.19 Prepetition Credit Agreement Amendment; Adequate Protection. Each Lender that
holds direct ownership in the loans under the Prepetition Credit Agreement shall, or in the case of
a Lender that holds beneficial ownership in the loans under the Prepetition Credit Agreement
through a participation, shall use commercially reasonable efforts to instruct its respective
participant counterpart to: (a) to the extent not already a party thereto in such capacity, execute
and deliver to the Borrower the Prepetition Credit Agreement Amendment and in any event by becoming
a Lender shall be deemed to have agreed to said Prepetition Credit Agreement Amendment and (b)
agree to the adequate protection provided for the Prepetition Credit Agreement in the Restructuring
Term Sheet.




          12.20 Effectiveness. This Agreement shall become effective upon the execution and
delivery of this Agreement by the Borrower, each Guarantor, 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]





73












 





          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/ Shari L. Burgess	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	GUARANTORS:





LEAR ARGENTINE HOLDINGS CORPORATION #2

 	 
	 	By:  	/s/ Shari L. Burgess	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	LEAR AUTOMOTIVE DEARBORN, INC.

 	 
	 	By:  	/s/ Shari L. Burgess	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	LEAR CORPORATION (GERMANY), LTD.

 	 
	 	By:  	/s/ Shari L. Burgess	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	LEAR CORPORATION EEDS AND INTERIORS

 	 
	 	By:  	/s/ Shari L. Burgess	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 









 






	 	 	 	 	 
	 	LEAR CORPORATION GLOBAL DEVELOPMENT, INC.

 	 
	 	By:  	/s/ Shari L. Burgess 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LEAR EUROPEAN OPERATIONS CORPORATION

 	 
	 	By:  	/s/ Shari L. Burgess 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LEAR MEXICAN HOLDINGS CORPORATION

 	 
	 	By:  	/s/ Shari L. Burgess 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LEAR MEXICAN SEATING CORPORATION

 	 
	 	By:  	/s/ Shari L. Burgess 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LEAR OPERATIONS CORPORATION

 	 
	 	By:  	/s/ Shari L. Burgess 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LEAR SEATING HOLDINGS CORP. #50

 	 
	 	By:  	/s/ Shari L. Burgess 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 








 




	 	 	 	 	 
	 	LEAR SOUTH AMERICAN HOLDINGS CORPORATION

 	 
	 	By:  	/s/ Shari L. Burgess 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LEAR AUTOMOTIVE MANUFACTURING, LLC

 	 
	 	By:  	/s/ Shari L. Burgess 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LEAR EEDS HOLDINGS, LLC

 	 
	 	By:  	/s/ Shari L. Burgess 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LEAR HOLDINGS, LLC

 	 
	 	By:  	/s/ Shari L. Burgess 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LEAR INVESTMENTS COMPANY, LLC

 	 
	 	By:  	/s/ Shari L. Burgess 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LEAR MEXICAN HOLDINGS, LLC

 	 
	 	By:  	/s/ Shari L. Burgess 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 









 





	 	 	 	 	 
	 	RENOSOL SEATING, LLC

 	 
	 	By:  	/s/ Shari L. Burgess 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LEAR #50 HOLDINGS, LLC

 	 
	 	By:  	/s/ Shari L. Burgess 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LEAR TRIM L.P.

 	 
	 	By:  	/s/ Shari L. Burgess 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 








 




	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as Administrative Agent and as a Lender

 	 
	 	By:  	/s/ Elizabeth Kelley	 
	 	 	Name:  	Elizabeth Kelley	 
	 	 	Title:  	Managing Director	 
	 
	 
	 	BARCLAYS BANK PLC, as a Lender

 	 
	 	By:  	/s/ Brian Berman
 	 
	 	 	Name:  	Brian Berman 	 
	 	 	Title:  	Managing Director 	 
	 




 








 








	 	 	 	 	 
	 	ICAHN PARTNERS LP, as a Lender

 	 
	 	By:  	/s/ Edward Mattner
 	 
	 	 	Name:  	Edward Mattner 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	ICAHN PARTNERS MASTER FUND LP, as a Lender

 	 
	 	By:  	/s/ Edward Mattner
 	 
	 	 	Name:  	Edward Mattner 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	ICAHN PARTNERS MASTER FUND II LP, as a Lender

 	 
	 	By:  	/s/ Edward Mattner	 
	 	 	Name:  	Edward Mattner	 
	 	 	Title:  	Authorized Signatory	 
	 
	 	ICAHN PARTNERS MASTER FUND III LP, as a Lender

 	 
	 	By:  	/s/ Edward Mattner
 	 
	 	 	Name:  	Edward Mattner 	 
	 	 	Title:  	Authorized Signatory 	 
	 




 








 





	 	 	 	 	 
	 	CITIBANK, N.A., as a Lender

 	 
	 	By:  	/s/ Wayne Beckmann
 	 
	 	 	Name:  	Wayne Beckmann 	 
	 	 	Title:  	Managing Director - Citibank, N.A.


Global Autos and Industrials Department


388 Greenwich Street / 34th Fl

Ph. 212-816-5566 / Fax: 646-291-1691 	 
	 
	 
	 	THE ROYAL BANK OF SCOTLAND PLC. as a Lender

 	 
	 	By:  	




/s/ Jack Lonker
 	 
	 	 	Name:  	Jack Lonker 	 
	 	 	Title:  	Senior Vice President 	 
	 




 









 





	 	 	 	 	 	 	 	 	 
	 	 	NAVIGATOR CDO 2003, LTD., as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	GE Asset Management Inc., as Collateral Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:

Name:
	 	/s/ John Campos
 

John Campos
	 	 
	 

	 	 	 	Title:
	 	Authorized Signatory	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	NAVIGATOR CDO 2004, LTD., as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	GE Asset Management Inc., as Collateral Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:

Name:
	 	/s/ John Campos
 

John Campos
	 	 
	 

	 	 	 	Title:
	 	Authorized Signatory	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	NAVIGATOR CDO 2005, LTD., as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	GE Asset Management Inc., as Collateral Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:

Name:
	 	/s/ John Campos
 

John Campos
	 	 
	 

	 	 	 	Title:
	 	Authorized Signatory	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	GENERAL ELECTRIC PENSION TRUST, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	GE Asset Management Inc., as Collateral Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:

Name:
	 	/s/ John Campos
 

John Campos
	 	 
	 

	 	 	 	Title:
	 	Authorized Signatory	 	 






 








 




	 	 	 	 	 
	 	Hillmark Credit Opportunity Financing I, LTD.

By. Hillmark Capital Management L.P., as
Investment Manager, as a
Lender
 	 
	 	By:  	/s/ Hillel Weinberger 	 
	 	 	Name:  	Hillel Weinberger 	 
	 	 	Title:  	Chairman 	 
	 





	 	 	 	 	 
	 	KINGSLAND III, LTD., as a Lender

By: Kingsland Capital Management, LLC 

as Manager
 	 
	 	By:  	/s/ Vincent Siino 	 
	 	 	Name:  	Vincent Siino 	 
	 	 	Title:  	Authorized Officer 	 
	 





	 	 	 	 	 
	 	Hartford Series Fund, Inc., on
behalf of Hartford High

Yield HLS Fund

                    By: Hartford Investment Management 

                    Company, its Sub-advisor
 	 
	 	By:  	/s/ Carlos Fegel 	 
	 	 	Name:  	Carlos Fegel 	 
	 	 	Title:  	SVP 	 
	 





	 	 	 	 	 
	 	The Hartford Mutual Funds, Inc., on behalf of

The Hartford Floating Rate Fund

                    By: Hartford Investment Management

                    Company, its Sub-advisor
 	 
	 	By:  	/s/ Carlos Fegel 	 
	 	 	Name:  	Carlos Fegel 	 
	 	 	Title:  	SVP 	 
	 





	 	 	 	 	 
	 	The Hartford Mutual Funds, Inc., on behalf of

The Hartford Strategic Income Fund

By: Hartford Investment Management Company 

     its Investment Manager
 	 
	 	By:  	/s/ Carlos Fegel 	 
	 	 	Name:  	Carlos Fegel 	 
	 	 	Title:  	SVP 	 



 







 




	 	 	 	 	 
	 	The Investment and Administrative Committee of

The Walt Disney Company Sponsored Qualified Benefit Plans and Key Employees Deferred Compensation and Retirement Plan

By:  Hartford Investment Management Company
       its Investment Manager

 	 
	 	By:  	/s/ Carlos Fegel 	 
	 	 	Name:  	Carlos Fegel	 
	 	 	Title:  	SVP	 
	 





	 	 	 	 	 
	 	The Hartford Mutual Funds, Inc., on behalf of

The Hartford Total Return Bond Fund 

By Hartford Investment Management Company,

its Subadvisor

 	 
	 	By:  	/s/ Carlos Fegel 	 
	 	 	Name:  	Carlos Fegel	 
	 	 	Title:  	SVP	 
	 





	 	 	 	 	 
	 	The Hartford Mutual Funds, Inc., on behalf of The Hartford High Yield Fund

                    By: Hartford Investment Management

                    Company, its Sub-advisor

 	 
	 	By:  	/s/ Carlos Fegel 	 
	 	 	Name:  	Carlos Fegel	 
	 	 	Title:  	SVP	 
	 




	 	 	 	 	 
	 	State Board of Administration of Florida

               By: Hartford Investment Management Company,

                      its Investment Manager

 	 
	 	By:  	/s/ Carlos Fegel 	 
	 	 	Name:  	Carlos Fegel	 
	 	 	Title:  	SVP	 
	 





	 	 	 	 	 	 	 
	 
	 	 	 	Hartford Series Fund, Inc., on behalf of	 	 
	 
	 	 	 	Hartford Total Return Bond HLS Fund	 	 
	 
	 	 	 	By Hartford Investment Management Company,	 	 
	 
	 	 	 	its Subadvisor	 	 
	 
	 	 	 	 	 	 
	 
	 	By:
	 	/s/ Carlos Fegel
 

Name: Carlos Fegel	 	 
	 
	 	 	 	Title:   SVP	 	 




	 	 	 	 	 
	 	Morgan Stanley Senior Funding, Inc, as a Lender

 	 
	 	By:  	/s/ Thomas Doster
 	 
	 	 	Name:  	Thomas Doster 	 
	 	 	Title:  	Vice President