exv4w1






Exhibit 4.1




 





$500,000,000

TERM LOAN CREDIT AGREEMENT




by and among



VISTEON CORPORATION,

as Borrower,



THE OTHER CREDIT PARTIES SIGNATORY HERETO,

as Credit Parties,



THE LENDERS SIGNATORY HERETO

FROM TIME TO TIME,

as Lenders,



and



MORGAN STANLEY SENIOR FUNDING, INC.,

as Lead Arranger, Sole Bookrunner, Collateral Agent and Administrative Agent



Dated as of October 1, 2010



 






 









 





TERM LOAN CREDIT AGREEMENT




     This TERM LOAN CREDIT AGREEMENT (this “Agreement”), dated as of October 1, 2010, by
and among VISTEON CORPORATION, a Delaware corporation (“Borrower”); the other Credit
Parties signatory hereto; MORGAN STANLEY SENIOR FUNDING, INC., (“MSSF”), for itself, as
Lender, and as Lead Arranger, Sole Bookrunner, collateral agent for the Lenders (together, with any
permitted successors in such capacity, the “Collateral Agent”) and administrative agent
for the Lenders (together, with any permitted successors in such capacity, “Agent”); and
the other Lenders signatory hereto from time to time.



RECITALS




     WHEREAS, on May 28, 2009 (the “Petition Date”), Borrower and certain of the other
Credit Parties filed voluntary petitions for reorganization (the “Chapter 11 Cases”) under
Chapter 11, 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”), with the
United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”);



     WHEREAS, in connection with that certain Fifth Amended Joint Plan of Reorganization filed with
the Bankruptcy Court on August 27, 2010 (such plan of reorganization, together with all exhibits,
schedules, annexes and supplements thereto, the “Plan of Reorganization”) and related
Fourth Amended Disclosure Statement for the Plan filed on June 24, 2010 (such disclosure statement,
together with all exhibits, schedules, annexes and supplements thereto, the “Disclosure
Statement”), the Bankruptcy Court entered an order confirming the Plan of Reorganization on
August 31, 2010;



     WHEREAS, in connection with the confirmation of the Plan of Reorganization, Borrower has
requested that Agent and the Lenders provide for a $500,000,000 secured term loan facility on the
terms and subject to the conditions set forth in this Agreement to pay administrative expenses and
other emergence costs, fees and expenses in respect of the Chapter 11 Cases and for other purposes
permitted under Section 2.4;



     WHEREAS, Borrower has agreed to secure all of its Obligations under the Loan Documents by
granting to Agent, for the benefit of Agent and the Lenders, a first priority security interest in
the Term Loan Priority Collateral and a second priority security interest in the Revolver Priority
Collateral;



     WHEREAS, concurrently herewith, Borrower and the other Credit Parties have entered into a
$200,000,000 Revolving Loan Credit Agreement which will be secured by a first priority security
interest in the Revolver Priority Collateral and a second priority security interest in the Term
Loan Priority Collateral;



     WHEREAS, the Lenders are willing to make certain loans and other extensions of credit to
Borrower of up to such amount upon the terms and conditions set forth herein; and



     WHEREAS, all Annexes, Schedules, Exhibits and other attachments (collectively,
“Appendices”) hereto, or expressly identified to this Agreement, are incorporated herein by
reference, and taken together with this Agreement, shall constitute but a single agreement. These
Recitals shall be construed as part of this Agreement.



 









 





     NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter
contained, and for other good and valuable consideration, the parties hereto agree as follows:




	1.	 	DEFINITIONS, ACCOUNTING PRINCIPLES AND OTHER INTERPRETIVE MATTERS.





     1.1 Definitions. For purposes of this Agreement:



     “Account Debtor” means any Person who may become obligated to any Credit Party under,
with respect to, or on account of, an Account, Chattel Paper or General Intangibles (including a
payment intangible).



     “Accounting Changes” has the meaning ascribed thereto in Section 7.10.



     “Accounts” means all “accounts,” as such term is defined in the Code, now owned or
hereafter acquired by any Credit Party, including (a) all accounts receivable, other receivables,
book debts and other forms of obligations (other than forms of obligations evidenced by Chattel
Paper, or Instruments), (including any such obligations that may be characterized as an account or
contract right under the Code), (b) all of each Credit Party’s rights in, to and under all purchase
orders or receipts for goods or services, (c) all of each Credit Party’s rights to any goods
represented by any of the foregoing (including unpaid sellers’ rights of rescission, replevin,
reclamation and stoppage in transit and rights to returned, reclaimed or repossessed goods), (d)
all rights to payment due to any Credit Party for property sold, leased, licensed, assigned or
otherwise disposed of, for a policy of insurance issued or to be issued, for a secondary obligation
incurred or to be incurred, for energy provided or to be provided, for the use or hire of a vessel
under a charter or other contract, arising out of the use of a credit card or charge card, or for
services rendered or to be rendered by such Credit Party or in connection with any other
transaction (whether or not yet earned by performance on the part of such Credit Party), (e) all
health care insurance receivables and (f) all collateral security of any kind, now or hereafter in
existence, given by any Account Debtor or any other Person with respect to any of the foregoing.



     “Acquired Non-Core Assets” means any assets acquired in a Permitted Acquisition and
designated as “non-core assets” by notice from Borrower to Agent within 30 days after the
consummation thereof so long as such assets do not constitute more than 25% of the assets acquired
in any such Permitted Acquisition.



     “Acquisition” means, with respect to any Person, (a) the acquisition by such Person of
the Stock of any other Person resulting in such other Person becoming a Subsidiary of such Person,
(b) the acquisition by such Person of all or substantially all of the assets of any other Person or
of a division or business line of such Person, or (c) any merger or consolidation of a Subsidiary
of such Person with any other Person so long as the surviving entity of such merger or
consolidation is a Subsidiary of such Person.



     “Affected Lender” has the meaning ascribed thereto in Section 2.14(c).



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     “Affiliate” means, with respect to any Person, (a) each Person that, directly or
indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary,
10% or more of the Stock having ordinary voting power in the election of directors of such Person,
(b) each Person that controls, is controlled by or is under common control with such Person and (c)
each of such Person’s officers, directors and partners. For the purposes of this definition,
“control” of a Person shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise; provided, however, that the term
“Affiliate” shall specifically exclude Agent and each Lender.



     “Agent” means MSSF in its capacity as administrative agent for the Lenders or its
successor appointed pursuant to Section 10.6 or its successor.



     “Agreement” means this $500,000,000 Term Loan Credit Agreement, dated as of October 1,
2010, by and among Borrower, the other Credit Parties party hereto, Morgan Stanley Senior Funding,
Inc., as Agent, Collateral Agent and a Lender and the other Lenders from time to time party
thereto, as the same may be amended, supplemented, restated or otherwise modified from time to
time.



     “Aircraft” means each, any or all, as the context requires of: (a) the Airframe; (b)
the Engines, and, where the context permits, (c) the applicable Technical Records.



     “Aircraft Mortgage and Security Agreement” means that certain Aircraft Mortgage
(Term), dated as of the Closing Date, executed and delivered by the applicable Credit Parties in
favor of Agent.



     “Airframe” means: (a) one (1) Gulfstream Aerospace model G-IV (described on the
International Registry drop down menu as GULFSTREAM model Gulfstream G-IV (GIV-SP)) aircraft
bearing manufacturer’s serial number 1227 and United States Registration Number N600VC; (b) any and
all Parts so long as the same shall be incorporated or installed on or attached to the Airframe and
for so long as any Credit Party owns them after removal from the Airframe; and, where the context
permits, (c) the Technical Records relating to such Airframe and all of its Parts.



     “Appendices” has the meaning ascribed to it in the recitals to this Agreement.



     “Applicable Margins” means collectively the Applicable Term Loan Base Margin, and the
Applicable Term Loan LIBOR Margin.



     “Applicable Term Loan Base Margin” means the per annum interest rate margin from time
to time in effect and payable in addition to the Base Rate applicable to the Term Loans, as
determined by reference to Section 2.5(a), plus, the Incremental Facility Yield
Adjustment, if any.



     “Applicable Term Loan LIBOR Margin” means the per annum interest rate margin from time
to time in effect and payable in addition to the LIBOR Rate applicable to the Term Loans, as
determined by reference to Section 2.5(a), plus, the Incremental Facility Yield
Adjustment, if any.



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     “Approved Fund” means, with respect to any Lender, any Person (other than a natural
Person) that (a) is or will be engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its business and (b) is
advised or managed by (i) such Lender, (ii) any Affiliate of such Lender or (iii) any Person (other
than a natural Person) or any Affiliate of any Person (other than a natural Person) that
administers or manages such Lender.



     “Assignment Agreement” has the meaning ascribed to it in Section 11.1(a).



     “Aviation Authority” means any and all authorities or Persons responsible for the
regulation and control of civil aviation, or otherwise being competent to issue directions in
respect of the Aircraft, its repair, maintenance or operation, under the laws of the State of
Registration.



     “Bankruptcy Code” shall have the meaning ascribed to it in the recitals to this
Agreement.



     “Bankruptcy Court” shall have the meaning ascribed to it in the recitals to this
Agreement.



     “Base Rate” means, for any day, a floating rate equal to the highest of (i) the rate,
if any, quoted for such day in The Wall Street Journal as the “U.S. Prime Rate”, (ii) the Federal
Funds Rate plus 50 basis points per annum, (iii) LIBOR Rate for a LIBOR Period of one-month
beginning on such day plus 1% and (iv) 2.75% per annum. Each change in any interest rate
provided for in this Agreement based upon the Base Rate shall take effect at the time of such
change in the Base Rate.



     “Base Rate Loan” means a Loan or portion thereof bearing interest by reference to the
Base Rate.



     “Borrower” has the meaning ascribed to it in the preamble to this Agreement.



     “Borrower Materials” has the meaning ascribed to it in Section 10.13(a).



     “Borrower Workplace” has the meaning ascribed to it in Section 10.13(a).



     “Business Day” means any day that is not a Saturday, a Sunday or a day on which banks
are required or permitted to be closed in the State of New York and in reference to LIBOR Loans
shall mean any such day that is also a LIBOR Business Day.



     “Business Plan” means Borrower’s and its Subsidiaries’ forecasted consolidated: (a)
balance sheets; (b) profit and loss statements; (c) cash flow statements; and (d) capitalization
statements, and otherwise consistent with the historical Financial Statements of Borrower and its
Subsidiaries, together with appropriate supporting details and a statement of underlying
assumptions.



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     “Cape Town Convention” shall mean the Cape Town Convention on International Interests
in Mobile Equipment and the Protocol to the Convention on International Interests in Mobile
Equipment on Matters Specific to Aircraft Equipment.



     “Capital Expenditures” means, with respect to any Person, all expenditures (by the
expenditure of cash or the incurrence of Indebtedness) by such Person during any measuring period
for any fixed assets or improvements or for replacements, substitutions or additions thereto that
have a useful life of more than one year and that are required to be capitalized under GAAP but
excluding (i) expenditures of insurance proceeds to acquire or repair any asset, (ii) leasehold
improvement expenditures for which such Person is actually reimbursed by the lessor, sublessor or
sublessee, (iii) the consideration for any Permitted Acquisition or Investments permitted hereunder
(other than Investments permitted under Section 7.2(r)), (iv) capital expenditures recorded
as a result of the consummation of any Sale-Leaseback Transaction permitted under Section
7.12, (v) capital expenditures financed with the Net Cash Proceeds of any issuance of Stock by
Borrower after the Closing Date, (vi) capital expenditures in respect of the purchase price of
Equipment to the extent the consideration therefore consists of any combination of (1) Equipment
traded in at the time of such purchase pursuant to a Disposition permitted hereunder and (2) the
proceeds of a concurrent Disposition pursuant to Section 7.8 of Equipment, in each case, in
the ordinary course of business, (vii) capital expenditures funded with amounts permitted to be
reinvested in accordance with Section 2.3(b), (viii) interest capitalized in respect of
capital expenditures and (ix) expenditures that are accounted for as capital expenditures of such
Person and that are actually paid for by a third party (excluding Borrower or any of its Restricted
Subsidiaries) and for which neither Borrower nor any of its Restricted Subsidiaries has provided or
is required to provide or incur, directly or indirectly, any consideration or obligation to such
third party or any other Person (whether before, during or after such period), provided
that the amount of capital expenditures excluded pursuant to this clause (ix) shall not exceed
$50,000,000 during the term of this Agreement.



     “Capital Lease” means, with respect to any Person, any lease of any property (whether
real, personal or mixed) by such Person as lessee that, in accordance with GAAP, would be required
to be classified and accounted for as a capital lease on a balance sheet of such Person (except for
temporary treatment of construction-related expenditures paid by any Person other than Borrower or
any of its Subsidiaries under EITF 97-10, “The Effect of Lessee Involvement in Asset Construction”,
which will ultimately be treated as operating leases upon a Sale-Leaseback Transaction permitted
under Section 7.12) and the stated maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease or other arrangement prior to the first date on
which such lease may be terminated by the lessee without payment of a penalty.



     “Capital Lease Obligation” means, with respect to any Capital Lease of any Person, the
capitalized amount of the obligation of the lessee thereunder that, in accordance with GAAP, would
appear on a balance sheet of such lessee in respect of such Capital Lease.



     “Captive Insurance Restricted Subsidiary” means any Restricted Subsidiary that is
subject to regulation as an insurance company under applicable law and which has been designated in
writing as such by Borrower to Agent.



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     “Cash Equivalents” means (a) marketable direct obligations issued by, or
unconditionally, directly and fully guarantied by, the United States Government or any agency
thereof and backed by the full faith and credit of the United States, in each case maturing within
one year from the date of acquisition or, with respect to any Foreign Subsidiary, an equivalent
obligation of the government of the country in which such Foreign Subsidiary transacts business, in
each case maturing within one year from the date of acquisition, and, in each case having, at the
time of acquisition, one of the two highest ratings categories obtainable from either S&P or
Moody’s; (b) Dollar denominated certificates of deposit or time deposits, eurodollar time deposits
or overnight bank deposits having maturities of twelve months or less from the date of acquisition
issued by any Lender or by any commercial bank organized under the laws of the United States or any
state thereof having combined capital and surplus of not less than $250,000,000 and a long-term
unsecured debt rating of at least “A” or the equivalent thereof from S&P or “A2” or the equivalent
thereof from Moody’s, and, with respect to any Foreign Subsidiary, time deposits, certificates of
deposits, overnight bank deposits or bankers acceptances in the currency of any country in which
such Foreign Subsidiary transacts business having maturities of twelve months or less from the date
of acquisition issued by any commercial bank organized in the United States having capital and
surplus in excess of $100,000,000 or, with respect to any Foreign Subsidiary, a commercial bank
organized under the laws of another country in which such Foreign Subsidiary transacts business
having total assets in excess of $100,000,000 (or its foreign currency equivalent); (c) commercial
paper of an issuer rated at least A-1 (or the equivalent thereof) by S&P or P-1 (or the equivalent
thereof) by Moody’s, or carrying an equivalent rating by a nationally recognized rating agency, if
both of the two named rating agencies cease publishing ratings of commercial paper issuers
generally, and maturing within twelve months from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank with a term of not more than seven (7) days for
underlying securities of the types described in clause (a) of this definition and
satisfying the requirements of clause (b) of this definition with respect to securities issued or
fully guarantied or insured by the United States government; (e) securities with maturities of one
year or less from the date of acquisition that are issued or fully guarantied by any state,
commonwealth or territory of the United States, any political subdivision or taxing authority of
any such state, commonwealth or territory or by any foreign government, the securities of which
state, commonwealth, territory, political subdivision, taxing authority or foreign government have,
at the time of acquisition, one of the two highest ratings categories obtainable from either S&P or
Moody’s; (f) securities with maturities of twelve months or less from the date of acquisition
backed by standby letters of credit issued by any Lender or any commercial bank satisfying the
requirements of clause (b) of this definition; (g) deposits available for withdrawal on
demand with commercial banks organized in the United States having capital and surplus in excess of
$100,000,000 or, with respect to any Foreign Subsidiary, a commercial bank organized under the laws
of any other country in which such Foreign Subsidiary transacts business having total assets in
excess of $100,000,000 (or its foreign currency equivalent); (h) money market mutual or similar
funds that invest exclusively in assets satisfying the requirements of clauses (a) through
(g) of this definition; or (i) money market funds that (i) comply with the criteria set
forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by
S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.



     “CERCLA” has the meaning ascribed to it in the definition of “Environmental Laws”.



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     “Change of Control” means any of the following: (a) any person or group of persons
(within the meaning of the Securities Exchange Act of 1934) other than the Permitted Holders is or
becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act of 1934,
except that for purposes of this clause (a) such person shall be deemed to have “beneficial
ownership” of all shares that any such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time) and shall have acquired beneficial
ownership, directly or indirectly, of 51% or more of the issued and outstanding shares of Stock of
Borrower having the right to vote for the election of directors of Borrower under ordinary
circumstances; (b) during the period of twelve (12) consecutive months, the board of directors of
Borrower shall cease to consist of a majority of Continuing Directors; or (c) any Credit Party or
Foreign Stock Holding Company ceases to be a Wholly Owned Subsidiary of Borrower, except as
permitted under the Loan Documents.



     “Chapter 11 Cases” shall have the meaning ascribed to it in the recitals to this
Agreement.



     “Charges” means all federal, state, provincial, county, city, municipal, local,
foreign or other governmental taxes (including taxes owed to the PBGC at the time due and payable),
levies, assessments, charges, liens, claims or encumbrances owed by any Credit Party and upon or
relating to (a) the Collateral, (b) the Obligations, (c) the employees, payroll, income, capital
or gross receipts of any Credit Party, (d) any Credit Party’s ownership or use of any properties or
other assets, or (e) any other aspect of any Credit Party’s business.



     “Chattel Paper” means any “chattel paper,” as such term is defined in the Code,
including electronic chattel paper, now owned or hereafter acquired by any Credit Party.



     “Closing Date” means October 1, 2010.



     “Code” means the Uniform Commercial Code as the same may, from time to time, be
enacted and in effect in the State of New York; provided, that to the extent that the Code
is used to define any term herein or in any Loan Document and such term is defined differently in
different Articles or Divisions of the Code, the definition of such term contained in Article or
Division 9 shall govern; provided, further, that in the event that, by reason of
mandatory provisions of law, any or all of the attachment, perfection, publication or priority of,
or remedies with respect to, Agent’s or any Lender’s Lien on any Collateral is governed by the
Uniform Commercial Code as enacted and in effect in another State other than the State of New York,
the term “Code” shall mean the Uniform Commercial Code in such other State.



     “Collateral” means Revolver Priority Collateral and Term Loan Priority Collateral.



     “Collateral Agent” means MSSF, in its capacity as Collateral Agent on behalf of the
Lenders, and any replacement successor collateral agent.



     “Collateral Documents” means the Security Agreement, the Aircraft Mortgage and
Security Agreement, the Pledge Agreement, the Guaranties, the Mortgages and all similar agreements
entered into guarantying payment of, or granting a Lien upon property as security for payment of,
the Obligations.



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     “Collateral Reports” means the reports with respect to the Collateral referred to in
Section 5.2.



     “Collection Account” means that certain account of Agent, account number 406-99-776 in
the name of Agent at Citibank, N.A., ABA No. 021-000-089, or such other account as may be specified
in writing by Agent as the “Collection Account.”



     “Commercial Tort Claim” means a claim arising in tort with respect to which: (a) the
claimant is an organization; or (b) the claimant is an individual and the claim: (i) arose in the
course of the claimant’s business or profession; and (ii) does not include damages arising out of
personal injury to or the death of an individual.



     “Commitment Termination Date” means the earliest of (a) October 1, 2017, (b) the date
of termination of the Lenders’ obligations to permit existing Term Loans to remain outstanding
pursuant to Section 9.2(b), or (c) the date of prepayment in full by Borrower of the Term
Loans.



     “Commitments” means (a) as to any Lender, the aggregate of such Term Loan Commitment
as set forth on Annex B to this Agreement or in the most recent Assignment Agreement
executed by such Lender, as such Commitments may be reduced, amortized or adjusted from time to
time in accordance with this Agreement and (b) as to all Lenders, the aggregate of all Lenders’
Term Loan Commitments as set forth on Annex B to this Agreement or in the most recent
Assignment Agreement executed by such Lender which aggregate commitment shall be Five Hundred
Million Dollars ($500,000,000) on the Closing Date, as such Commitments may be reduced, amortized
or adjusted from time to time in accordance with this Agreement. Upon funding of the Term Loans to
Borrower on the Closing Date, all Commitments shall terminate without any further action by any
Person.



     “Compliance Certificate” has the meaning ascribed to it in Section 5.1(b).



     “Confirmation Order” has the meaning ascribed to it in Section 4.33.



     “Consolidated Net Income” means, for any period, the consolidated net income (or loss)
of Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with
GAAP; provided that Consolidated Net Income for any such period shall exclude, without
duplication, (i) the cumulative effect of any change in accounting principles during such period,
(ii) the income (or loss) of any Subsidiary (other than a Credit Party) to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary of that income is
not at the time permitted without any prior approval of a Governmental Authority (which has not
been obtained) or, directly or indirectly, by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to
such Subsidiary or its stockholders (which has not been legally waived), (iii) the income (or loss)
of any Person (other than a Subsidiary) in which Borrower and its Restricted Subsidiaries have an
ownership interest, except to the extent of the amount of dividends or other distributions actually
paid in cash to Borrower or one of its Restricted Subsidiaries by such Person during such period,
and (iv) except as contemplated in the definition of consolidated EBITDA, the income or loss of any
Person accrued prior to the date it becomes a Restricted Subsidiary or is merged into or
consolidated with Borrower or any of its Restricted Subsidiaries. There shall be



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excluded in determining Consolidated Net Income unrealized losses or gains in respect of Swap
Contracts and other embedded derivatives or similar contracts that require the same accounting
treatment as Swap Contracts.




     “Continuing Directors” means the directors of Borrower on the Closing Date and each
other director, if, in each case, such other director’s nomination for election to the board of
directors of Borrower is recommended by the committee of the board of directors designated to make
such recommendations; provided that such committee has been appointed by 51% of the then
Continuing Directors, or such other directors appointed by, or that received the vote of a majority
of, the Permitted Holders.



     “Contracts” means all “contracts,” as such term is defined in the Code, now owned or
hereafter acquired by any Credit Party, in any event, including all contracts, undertakings, or
agreements (other than rights evidenced by Chattel Paper, Documents or Instruments) in or under
which any Credit Party may now or hereafter have any right, title or interest, including any
agreement relating to the terms of payment or the terms of performance of any Account.



     “Contractual Obligations” means, with respect to any Person, any security issued by
such Person or of any document or undertaking (other than a Loan Document) to which such Person is
a party or by which it or any of its property is bound or to which any of its property is subject.



     “Control Letter” means a letter agreement between Agent and (i) the issuer of
uncertificated securities with respect to uncertificated securities in the name of any Credit
Party, (ii) a securities intermediary with respect to securities, whether certificated or
uncertificated, securities entitlements and other financial assets held in a securities account in
the name of any Credit Party or (iii) a futures commission merchant or clearing house, as
applicable, with respect to commodity accounts and commodity contracts held by any Credit Party,
whereby, among other things, the issuer, securities intermediary or futures commission merchant
limits any security interest in the applicable financial assets in a manner reasonably satisfactory
to Agent, acknowledges the Lien of Agent, on behalf of itself and Lenders, on such financial
assets, and agrees to follow the instructions or entitlement orders of Agent without further
consent by the affected Credit Party.



     “Copyright License” means any and all rights now owned or hereafter acquired by any
Credit Party under any written agreement granting any right to use any Copyright.



     “Copyrights” means all of the following now owned or hereafter adopted or acquired by
any Credit Party: (a) all copyrights and copyrightable works (whether registered or unregistered),
all registrations and recordings thereof, and all applications in connection therewith, including
all registrations, recordings and applications in the United States Copyright Office or in any
similar office or agency of the United States, any state or territory thereof, or any other country
or any political subdivision thereof and (b) all extensions or renewals thereof.



     “Credit Parties” means Borrower and each Guarantor.



     “Current Assets” means, with respect to any Person, all current assets of such Person
as of any date of determination calculated in accordance with GAAP, but excluding cash, Cash
Equivalents and debts due from Affiliates.



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     “Current Liabilities” means, with respect to any Person, all liabilities that should,
in accordance with GAAP, be classified as current liabilities, and in any event shall include all
Indebtedness payable on demand or within one year from any date of determination without any option
on the part of the obligor to extend or renew beyond such year, all accruals for federal or other
taxes based on or measured by income and payable within such year, but excluding the current
portion of long-term debt required to be paid within one year and the aggregate Revolver Loan
Obligations.



     “Default” means any event that, with the passage of time or notice or both, would,
unless cured or waived, become an Event of Default.



     “Default Rate” has the meaning ascribed to it in Section 2.5(d).



     “Deposit Accounts” means all “deposit accounts” as such term is defined in the Code,
now or hereafter held in the name of any Credit Party.



     “Disposition” means 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.



     “Disqualified Stock” means any Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the option
of the holder thereof), or upon the happening of any event, (a) matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the
holder thereof, in whole or in part within ninety (90) days of the Commitment Termination Date, (b)
is secured by any assets of Borrower or any of its respective Subsidiaries, (c) is exchangeable or
convertible at the option of the holder into Indebtedness of Borrower or any of its respective
Subsidiaries or (d) provides for the mandatory payment of dividends regardless of whether or not
the board of directors has declared any dividends. Notwithstanding the preceding sentence, any
Stock that would constitute Disqualified Stock solely because the holders thereof have the right to
require Borrower or any of its Subsidiaries to repurchase such Stock upon the occurrence of a
“change of control” or an asset Disposition shall not constitute Disqualified Stock if the terms of
such Stock provide that Borrower or any of its Subsidiaries may not repurchase or redeem any such
Stock pursuant to such provisions unless such repurchase or redemption complies with the provisions
of Section 7.14.



     “Documents” means all “documents,” as such term is defined in the Code, now owned or
hereafter acquired by any Credit Party, wherever located.



     “Dollars” or “$” means lawful currency of the United States of America.



     “Domestic Subsidiary” of any Person means any Subsidiary of such Person incorporated
or organized in the United States or any State or territory thereof or the District of Columbia.



     “EASA” means the European Aviation Safety Administration and any subdivision or office
thereof, and any successor or replacement administrator, agency or other entity having the same or
similar authority and responsibilities.



10









 





     “EBITDA” means, with respect to any Person for any fiscal period, an amount equal to
the sum, without duplication, of the amounts for such period of (a) Consolidated Net Income,
plus, only to the extent deducted in calculating Consolidated Net Income for such period,
(b) consolidated Interest Expense, (c) consolidated income tax expense (including tax credits to
income on a consolidated basis for such period) for all federal, state, local, withholding,
franchise, foreign, state single business unitary and similar taxes, (d) consolidated depreciation
expense, (e) consolidated amortization expense (including, without limitation, amortization of
goodwill and other intangible assets and amortization or write-off of debt discount or deferred
financing costs and debt issuance costs and commissions, discounts and other fees, costs, expenses
and charges associated with Indebtedness (including, without limitation, the Term Loans and the
Revolver Loan Obligations), (f) expenses, fees or charges paid with respect to the Related
Transactions (including cash charges in respect of strategic market reviews, management bonuses and
early retirement of Indebtedness consistent with the Related Transaction Documents and in an amount
not to exceed the applicable amounts set forth on Schedule (E-1)), (g) any non-recurring
charges incurred on or prior to the second anniversary of the Closing Date in connection with the
Chapter 11 Cases consistent with the Related Transaction Documents and in an aggregate amount not
to exceed the applicable amounts set forth on Schedule (E-1), (h) net loss (or gain) on
early extinguishment of debt, (i) net loss (or gain) from fresh start accounting adjustments
relating to non-working capital assets, (j) any non-cash charges for inventory adjustments related
to fresh start accounting, (k) non-cash compensation charges, including any such charges arising
from stock options, restricted stock grants or other equity-incentive programs, the granting of
stock appreciation rights and similar arrangements (including any repricing, amendment,
modification, substitution or change of any such stock, stock option, stock appreciation rights or
similar arrangements), (l) with respect to any discontinued operation, any loss resulting
therefrom, (m) to the extent actually reimbursed, expenses incurred to the extent covered by
indemnification provisions in any agreement in connection with a Permitted Acquisition or other
Investment, (n) any extraordinary charges in accordance with GAAP, (o) plus or
minus, as applicable (without duplication), any net non-cash gain or loss resulting in such
period from hedging obligations and the application of Accounting Standards Codification 815
(formerly Statement of Financial Accounting Standards 133), (p) cash restructuring charges related
to Dispositions permitted under Section 7.8(p), including, without limitation, those
related to plant closures, severance costs and OPEB liabilities; provided that the
aggregate amount of all such cash restructuring charges added pursuant to this clause (p)
shall not exceed $130,000,000; provided, further that the aggregate amount of all
such charges added pursuant to this clause (p) during the first four Fiscal Quarters
following the Closing Date shall not exceed $100,000,000, (q) charges and expenses related to
pension expense (minus actual cash pension payments and cash funding requirements), (r) any
unusual or non-recurring non-cash charges (including any impairment charge or asset write-off
pursuant to GAAP) (provided that if any such non-cash charge represents an accrual or reserve for
potential cash items in any future period, the cash payment in respect thereof in such future
period shall be subtracted from EBITDA to such extent, and excluding amortization of a prepaid cash
item that was paid in a prior period), (s) to the extent the related loss is not added back in
calculating such Consolidated Net Income, proceeds of business interruption insurance policies to
the extent of such related loss, (t) to the extent non-recurring and not capitalized, any fees,
costs and expenses of Borrower and its Subsidiaries incurred as a result of Permitted Acquisitions,
Investments and Dispositions permitted hereunder (including, without limitation, expenses in
respect of earn-out obligations



11









 




incurred, in each case, thereunder) and the issuance of Stock or Indebtedness permitted
hereunder, (u) plus (or minus) losses (or gains) from foreign currency adjustments, (v) cash
charges and expenses in connection with employee or management relocation or severance costs,
including, without limitation, related to Permitted Acquisitions and Investments and Dispositions
permitted hereunder, all determined in accordance with GAAP and in each case eliminating any
increase or decrease in income resulting from non-cash accounting adjustments made in connection
with the related Permitted Acquisition, Investment or Disposition, (w) any unusual or non-recurring
non-cash charges (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, non-cash losses on sales of assets
outside of the ordinary course of business that represent an accrual of, or reserve, for cash
charges in a future period) and (x) restructuring charges taken by Borrower during such period that
are eligible for reimbursement by Ford in accordance with the Ford Settlement Agreement which have
not been reimbursed prior to the end of such period, and minus, to the extent included in the
statement of such net income for such period, the sum of (i) any unusual or non-recurring non-cash
income or gains, and (ii) with respect to any discontinued operation, any gain resulting therefrom,
all as determined on a consolidated basis. For purposes of clarity, to the extent that there is
any “gain” or “income”, then the amount of such gain or income shall be deducted from EBITDA, and
to the extent that there is any “loss”, then the amount of such loss shall be added back to EBITDA.
For the purposes of calculating EBITDA during any four Fiscal Quarter period in which a Material
Acquisition or a Material Disposition has occurred (each, a “Reference Period”), (i) if at
any time during such Reference Period, Borrower or any Subsidiary shall have made any Material
Disposition, the EBITDA for such Reference Period shall be reduced by an amount equal to the EBITDA
(if positive) attributable to the property that is the subject of such Material Disposition for
such Reference Period or increased by an amount equal to the EBITDA (if negative) attributable
thereto for such Reference Period, (ii) if during such Reference Period Borrower or any Subsidiary
shall have made a Material Acquisition, EBITDA for such Reference Period shall be calculated after
giving Pro Forma Effect thereto as if such Material Acquisition occurred on the first day of such
Reference Period, and (iii) with respect to any Material Acquisition or Material Disposition, on a
Pro Forma Basis, after giving effect to any synergies, operating expense reductions and other
operating improvements and cost savings (including, without limitation, made in accordance with
Regulation S-X under the Securities Act of 1933, as amended) as certified by a Financial Officer of
Borrower as having been determined in good faith to be reasonably anticipated to be realized within
eighteen (18) months following any such Material Acquisition or Material Disposition.




     “EBITDA Disposition Percentage” means with respect to any Disposition, the percentage
of EBITDA for the most recent period of four consecutive Fiscal Quarters for which financial
statements have been delivered attributable to the property to be Disposed of in such Disposition.



     “E-Fax” means any system used to receive or transmit faxes electronically.



     “Electronic Transmission” means each document, instruction, authorization, file,
information and any other communication transmitted, posted or otherwise made or communicated by
e-mail or E-Fax, or otherwise to or from an E-System or other equivalent service acceptable to
Agent.



12









 





     “Engines” (a) each, any or all, as the context may require of: (i) two (2) Rolls-Royce
model Tay MK 611-8 (described on the International Registry drop down menu as ROLLS ROYCE model
TAY611) aircraft engines bearing manufacturer’s serial numbers 16550 and 16570; or (ii) any engine
which is, from time to time, substituted for such an engine, or a previously substituted engine,
pursuant to the terms of the Aircraft Mortgage and Security Agreement; in either case, whether or
not any such engine is from time to time installed on the Airframe; and (b) any and all Parts, so
long as they are incorporated in or installed on or attached to any such engine or so long as any
Credit Party owns them after removal from any such engine; and, where the context permits, (c) the
Technical Records, relating to such engines and all of their Parts.



     “Environmental Laws” means all applicable federal, state, provincial, local and
foreign laws, statutes, ordinances, codes, rules, standards and regulations, now or hereafter in
effect, and any applicable judicial or administrative interpretation thereof including any
applicable judicial or administrative order, consent decree, order or judgment, in each case having
the force or effect of law, imposing liability or standards of conduct for or relating to the
regulation and protection of human health, safety, the environment and natural resources (including
ambient air, soil, vapor, surface water, groundwater, wetlands, land surface or subsurface strata,
wildlife, aquatic species and vegetation). Environmental Laws include the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. §§ 9601 et
seq.) (“CERCLA”); the Hazardous Materials Transportation Authorization Act of 1994
(49 U.S.C. §§ 5101 et seq.); the Federal Insecticide, Fungicide, and Rodenticide
Act (7 U.S.C. §§ 136 et seq.); the Solid Waste Disposal Act (42 U.S.C. §§ 6901
et seq.); the Toxic Substance Control Act (15 U.S.C. §§ 2601 et
seq.); the Clean Air Act (42 U.S.C. §§ 7401 et seq.); the Federal Water
Pollution Control Act (33 U.S.C. §§ 1251 et seq.); the Occupational Safety and
Health Act (29 U.S.C. §§ 651 et seq.); and the Safe Drinking Water Act (42 U.S.C.
§§ 300(f) et seq.), and any and all regulations promulgated thereunder, and all
analogous state, provincial, local and foreign counterparts or equivalents and any transfer of
ownership notification or approval statutes related to the protection of human health, safety or
the environment.



     “Environmental Liabilities” means, with respect to any Person, all liabilities,
obligations, responsibilities, response, remedial and removal costs, investigation and feasibility
study costs, capital costs, operation and maintenance costs, losses, damages, punitive damages,
property damages, natural resource damages, consequential damages, treble damages, costs and
expenses (including all reasonable fees, disbursements and expenses of counsel, experts and
consultants), fines, penalties, sanctions and interest incurred as a result of or related to any
claim, suit, action, investigation, proceeding or demand by any Person, whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute or common law,
including any arising under or related to any Environmental Laws, Environmental Permits, or in
connection with any Release or threatened Release or presence of a Hazardous Material whether on,
at, in, under, from or about or in the vicinity of any real or personal property.



     “Environmental Permits” means all permits, licenses, authorizations, certificates,
approvals or registrations required by any Governmental Authority under any Environmental Laws.



13









 





     “Equipment” means all “equipment,” as such term is defined in the Code, now owned or
hereafter acquired by any Credit Party, wherever located.



     “Equity Commitment Agreement” means that certain Equity Commitment Agreement, dated as
of May 6, 2010, among Borrower and the Investors party thereto, as amended, restated, supplemented
or otherwise modified prior to the Closing Date.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and any regulations promulgated thereunder.



     “ERISA Affiliate” means, with respect to any Credit Party, any trade or business
(whether or not incorporated) that, together with such Credit Party, are treated as a single
employer within the meaning of Sections 414(b), (c), (m) or (o) of the IRC.



     “ERISA Event” means, with respect to any Credit Party or any ERISA Affiliate, (a) any
event described in Section 4043(c) of ERISA with respect to a Title IV Plan (other than an event
for which the thirty (30) day notice period is waived); (b) the withdrawal of any Credit Party or
ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan year in which
it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (c) the complete or
partial withdrawal of any Credit Party or any ERISA Affiliate from any Multiemployer Plan; (d) the
filing of a notice of intent to terminate a Title IV Plan or the treatment of a plan amendment as a
termination under Section 4041 of ERISA; (e) the institution of proceedings to terminate a Title IV
Plan or Multiemployer Plan by the PBGC; (f) the failure by any Credit Party or ERISA Affiliate to
make when due required contributions to a Multiemployer Plan or Title IV Plan unless such failure
is cured within thirty (30) days; (g) the termination of a Multiemployer Plan under Section 4041A
of ERISA or the reorganization or insolvency of a Multiemployer Plan under Section 4241 or 4245 of
ERISA; (h) the loss of a Qualified Plan’s qualification or tax exempt status; or (i) the
termination of a Plan described in Section 4064 of ERISA.



     “ERISA Lien” as defined in Section 6.13.



     “E-Signature” means the process of attaching to or logically associating with an
Electronic Transmission an electronic symbol, encryption, digital signature or process (including
the name or an abbreviation of the name of the party transmitting the Electronic Transmission) with
the intent to sign, authenticate or accept such Electronic Transmission.



     “E-System” means any electronic system approved by Agent, including Intralinks® and
ClearPar® and any other Internet or extranet-based site, whether such electronic system is owned,
operated or hosted by Agent, any of its Related Persons or any other Person, providing for access
to data protected by passcodes or other security system.



     “Event of Default” has the meaning ascribed to it in Section 9.1.


“Excess Cash Flow” means, without duplication, with respect to any Fiscal Year of Borrower
and each of its Restricted Subsidiaries, on a consolidated basis, an amount equal to EBITDA
plus or minus, as the case may be (a) all non-cash items to the extent used in
determining consolidated EBITDA for such Fiscal Year, minus (b) Interest Expense paid in
cash during such Fiscal Year, minus (c) cash taxes, net of refunds, paid in cash during
such Fiscal Year, minus (d)






14









 







the cash portion of Capital Expenditures made during such Fiscal Year to the extent not financed
with the proceeds of long-term Indebtedness permitted hereunder, issuances of Stock or other
proceeds of a financing transaction that would not be included in EBITDA, minus (e) cash
payments during such Fiscal Year added back to net income in the calculation of EBITDA pursuant to
clauses (f) and (g) of the definition of EBITDA, minus (f) cash payments
made during such Fiscal Year with respect to Permitted Acquisitions and other Investments permitted
under Sections 7.2(h), and (i)(i) to the extent not financed with the proceeds of
long term Indebtedness, Stock issuances or other proceeds from a financing transaction that would
not be included in EBITDA or from the reinvestment of asset sale proceeds contemplated by
Section 2.3(b)(i), minus (g) Restricted Payments made by Borrower (i) that have
been declared by the board of directors of Borrower during such Fiscal Year with respect to cash
dividends or distributions or (ii) made in cash (without duplication of any adjustment for
Restricted Payments when declared by the board of directors of Borrower) during such Fiscal Year,
in each case, pursuant to Section 7.14 to the extent not funded with the proceeds of
Indebtedness or equity contributions, plus (h) reductions in Working Capital Changes or
minus (i) increases in Working Capital Changes (as the case may be), minus (j)
amounts used to repay the Revolver Loan Obligations borrowed on the Closing Date to fund any
additional original issue discount or upfront fees pursuant to the Fee Letter minus (k)
expenses or losses excluded from the calculation of EBITDA during such Excess Cash Flow period by
the items thereto to the extent paid in cash during such Fiscal Year, minus (l) to the
extent added to determine consolidated EBITDA, all items that did not result from a cash payment to
Borrower or any of its Restricted Subsidiaries on a consolidated basis during such Fiscal Year. In
calculating Excess Cash Flow, any Excess Cash Flow attributable to a Restricted Subsidiary acquired
in a Permitted Acquisition during such Fiscal Year shall only include the Excess Cash Flow for such
Restricted Subsidiary during the period commencing on the closing date of such Permitted
Acquisition and continuing through the last day of such Fiscal Year, provided that, the Net Cash
Proceeds of Dispositions, casualties or condemnations which are applied towards the prepayment of
Loans and/or the reinvestment in assets in accordance with Section 2.3(b)(i) shall be
excluded from the calculation of Excess Cash Flow.




     In calculating Excess Cash Flow, payments that are to be applied to Permitted Acquisitions and
Investments under Section 7.2(b) and (i)(ii) permitted by this Agreement as
required by a Contractual Obligation of Borrower or any of its Restricted Subsidiaries, that are
not made during such Fiscal Year but are required to be paid in the twelve (12) months after the
end of such Fiscal Year (which payments would have been deducted in calculating Excess Cash Flow
for such Fiscal Year had they been made during such Fiscal Year) shall be excluded from Excess Cash
Flow; provided that (x) Borrower shall deliver a certificate to Agent not later than 90
days after the end of such Fiscal Year, signed by a Financial Officer of Borrower, describing the
nature and amount of such Contractual Obligation and certifying that such amount will be paid
within 12 months after the end of such Fiscal Year, (y) if such payment is not made within 12
months after the close of such Fiscal Year, then Borrower shall promptly make a voluntary
prepayment of Term Loans in accordance with Section 2.3(a) in an amount, if positive, equal
to (A) the amount that would have been paid pursuant to Section 2.3(b)(v) with respect to
such Fiscal Year but for this proviso minus (B) the amount of the payment made pursuant to
Section 2.3(b)(v) with respect to such Fiscal Year and (z) any deduction from Excess Cash
Flow made



15









 




with respect to Contractual Obligations pursuant to this proviso in such Fiscal Year shall not
be deducted in computing Excess Cash Flow for the Fiscal Year in which such obligations are paid.




     “Excluded Domestic Subsidiary” means any Domestic Subsidiary of a direct or indirect
Foreign Subsidiary of Borrower in respect of which either (a) the pledge of more than 65% of the
Stock of such Subsidiary as Collateral, (b) the guarantying by such Subsidiary of the Obligations
or (c) the pledge of its assets in support of the Obligations would, in the good faith judgment of
Borrower, result in material adverse tax consequences to Borrower or any of its Subsidiaries;
provided, however, that utilization of the net operating losses of Borrower and its
Subsidiaries shall be excluded from Borrower’s determination of whether any pledge or guaranty
would result in material adverse tax consequences to Borrower or any of its Subsidiaries. As of the
Closing Date, the following shall be deemed to be an “Excluded Domestic Subsidiary”: VIHI, LLC,
VEHC, LLC, Halla Climate Systems Alabama Corp., Visteon Holdings, LLC, Visteon EU Holdings, LLC and
Visteon Automotive Holdings, LLC.



     “Excluded Foreign Subsidiary” means any Foreign Subsidiary in respect of which either
(a) the pledge of more than 65% of the Stock of such Subsidiary as Collateral or (b) the
guarantying by such Subsidiary of the Obligations, would, in the good faith judgment of Borrower,
result in material adverse tax consequences to Borrower or its Subsidiaries; provided,
however, that utilization of the net operating losses of Borrower and its Subsidiaries
shall be excluded from Borrower’s determination of whether any such pledge or guaranty would result
in material adverse tax consequences to Borrower or any of its Subsidiaries.



     “Excluded Party” means (i) any Person engaged principally in the manufacture or sale
of automotive parts or components or automobiles (each, a “Competitor”) and (ii) any Person
that has Majority Control over a Competitor.



     “Excluded Subsidiaries” means (a) The Visteon Fund, (b) any Subsidiary created after
the Closing Date in connection with the establishment of a Joint Venture with any Person (other
than Borrower and its Subsidiaries) which Subsidiary is not, and was never, a Wholly Owned
Subsidiary of Borrower, (c) any Excluded Domestic Subsidiary, (d) any Excluded Foreign Subsidiary,
(e) any Immaterial Subsidiary, (f) any Unrestricted Subsidiary (g) any Securitization Subsidiary,
(h) each Captive Insurance Subsidiary, (i) each Non-Profit Restricted Subsidiary, (j) each
non-wholly owned Restricted Subsidiary that was a non-wholly owned Restricted Subsidiary on the
Closing Date, to the extent that the laws of any Governmental Authority prohibit such Person from
providing a guaranty of the Obligations and (k) each Foreign Stock Holding Company (other than
Visteon International Holdings, Inc., Visteon European Holdings, Inc., Visteon Global Technologies,
Inc. and any other Foreign Stock Holding Company that is a Domestic Subsidiary and owns, directly
or indirectly, Foreign Subsidiaries other than Excluded Subsidiaries and Excluded Foreign
Subsidiaries).



     “FAA” means, collectively, (a) the Federal Aviation Administration of the United
States Department of Transportation and any subdivision or office thereof, and any successor or
replacement administrator, agency or other entity having the same or similar authority and
responsibilities and (b) the National Transportation Safety Board of the United States of America
and any subdivision or office thereof, and any successor or replacement administrator, agency or
other entity having the same or similar authority and responsibilities.



16









 





     “Fair Labor Standards Act” means the Fair Labor Standards Act, 29 U.S.C. §§ 201
et seq.



     “FATCA” means Sections 1471 through 1474 of the IRC as of the date of this Agreement.



     “Federal Funds Rate” means, for any day, a floating rate equal to the weighted average
of the rates on overnight Federal funds transactions among members of the Federal Reserve System,
as determined by Agent in its sole discretion, which determination shall be final, binding and
conclusive (absent manifest error).



     “Federal Reserve Board” means the Board of Governors of the Federal Reserve System.



     “Fee Letter” means that certain Term Loan Facility Fee Letter, dated as of August 25,
2010, between MSSF and Borrower with respect to certain Fees to be paid from time to time by
Borrower to MSSF, as may be amended, modified or supplemented from time to time.



     “Fees” means any and all fees and other amounts payable to Agent or any Lender
pursuant to this Agreement or any of the other Loan Documents.



     “FEMA” means the Federal Emergency Management Agency, a component of the United States
Department of Homeland Security that administers the National Flood Insurance Program.



     “Financial Covenants” means the covenants set forth in Section 7.10.



     “Financial Officer” means, with respect to any Group Member, the chief executive
officer, the chief financial officer, the principal accounting officer, the treasurer, the
assistant treasurer and the controller thereof.



     “Financial Statements” means the consolidated income statements, statements of cash
flows and balance sheets of Borrower delivered in accordance with Section 4.4 and
Section 5.1.



     “FIRREA” means the Financial Institutions Reform, Recovery and Enforcement Act of
1989, as amended.



     “Fiscal Month” means any of the monthly accounting periods of Borrower.



     “Fiscal Quarter” means any of the quarterly accounting periods of Borrower, ending on
March 31, June 30, September 30, and December 31 of each year.



     “Fiscal Year” means any of the annual accounting periods of Borrower ending on
December 31 of each year.



     “Fixtures” means all “fixtures” as such term is defined in the Code, now owned or
hereafter acquired by any Credit Party.



     “Flood Insurance” means, for any Mortgaged Property located in a Special Flood Hazard
Area, private insurance that meets the requirements set forth by FEMA in its Mandatory



17









 




Purchase of Flood Insurance Guidelines. Flood Insurance shall be in an amount consistent with
Section 6.4(a).




     “Ford Settlement Agreement” means that certain Global Settlement and Release
Agreement, dated as of September 29, 2010, by and between Visteon Corporation, a Delaware
corporation, on behalf of itself and its subsidiaries and affiliates, on the one hand, and Ford
Motor Company, a Delaware corporation, and Automotive Components Holdings, LLC, on the other hand.



     “Foreign Plan” means any employee benefit plan maintained or contributed to by
Borrower and its Restricted Subsidiaries that provides pension benefits to employees employed
outside the United States, including, without limitation, the Visteon UK Pension Plan.



     “Foreign Stock Holding Company” means any Domestic Subsidiary or any Foreign
Subsidiary of Borrower created or acquired to hold the Stock of first-tier Foreign Subsidiaries
(excluding any Foreign Subsidiary that is a Foreign Stock Holding Company) or other Foreign Stock
Holding Companies. It is understood and agreed that each such Subsidiary shall be a holding
company (with the principal assets of such Subsidiary being the Stock of first-tier Foreign
Subsidiaries or other Foreign Stock Holding Companies and other assets incidental to its operations
and such other assets as permitted by Section 7.21). As of the Closing Date, each of the
following entities shall be deemed to be a “Foreign Stock Holding Company”: Visteon Holdings, LLC,
Visteon EU Holdings, LLC, Visteon International Holdings, Inc., Visteon European Holdings, Inc.,
Visteon Global Technologies, Inc., Visteon Holdings Hungary Kft, VIHI, LLC, VEHC, LLC, Visteon
Holdings GmbH, Visteon Automotive Holdings, LLC, Infinitive Speech Systems Corp. and SunGlas, LLC.



     “Foreign Subsidiary” means any Subsidiary of Borrower organized outside of the United
States.



     “GAAP” means generally accepted accounting principles in the United States of America
consistently applied, as such term is further defined in Section 7.10.



     “General Intangibles” means all “general intangibles,” as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, including all right, title and interest
that such Credit Party may now or hereafter have in or under any Contract, all payment intangibles,
customer lists, Licenses, rights in Intellectual Property, interests in partnerships, joint
ventures and other business associations, permits, trade secrets, proprietary or confidential
information, inventions (whether or not patented or patentable), technical information, procedures,
designs, knowledge, know-how, Software, data bases, data, skill, expertise, experience, processes,
models, drawings, materials and records, goodwill, all rights and claims in or under insurance
policies (including insurance for fire, damage, loss and casualty, whether covering personal
property, real property, tangible rights or intangible rights, all liability, life, key man and
business interruption insurance, and all unearned premiums), uncertificated securities, choses in
action, deposit, checking and other bank accounts, rights to receive tax refunds and other
payments, rights to receive dividends, distributions, cash, Instruments and other property in
respect of or in exchange for pledged Stock and Investment Property, rights of indemnification, all
books and records, correspondence, credit files, invoices and other papers,



18









 




including without limitation all tapes, cards, computer runs and other papers and documents in
the possession or under the control of such Credit Party or any computer bureau or service company
from time to time acting for such Credit Party.




     “Goods” means all “goods” as defined in the Code, now owned or hereafter acquired by
any Credit Party, wherever located, including embedded Software to the extent included in “goods”
as defined in the Code, manufactured homes, standing timber that is cut and removed for sale and
unborn young of animals.



     “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, and any agency, department or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.



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



     “Guarantied Obligations” means as to any Person, any obligation of such Person
guarantying or otherwise having the economic effect of guarantying any Indebtedness, lease,
dividend, or other obligation (“primary obligation”) of any other Person (the “primary
obligor”) in any manner, including any obligation or arrangement of such Person to (a) purchase
or repurchase any such primary obligation, (b) advance or supply funds (i) for the purchase or
payment of any such primary obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or any balance sheet condition
of the primary obligor, (c) 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, (d) protect the beneficiary of such arrangement from loss
(other than product warranties given in the ordinary course of business) or (e) indemnify the owner
of such primary obligation against loss in respect thereof; provided, however, that
the term Guarantied Obligations shall not include endorsements of instruments for deposit or
collection or standard contractual indemnities, in each case in the ordinary course of business.
The amount of any Guarantied Obligations at any time shall be deemed to be an amount equal to the
lesser at such time of (x) the stated or determinable amount of the primary obligation in respect
of which such Guarantied Obligations is incurred and (y) the maximum amount for which such Person
may be liable pursuant to the terms of the instrument embodying such Guarantied Obligations, or, if
not stated or determinable, the maximum reasonably anticipated liability (assuming full
performance) in respect thereof.



     “Guaranties” means the Subsidiary Guaranty and any other guaranty executed by any
Guarantor in favor of Agent, for the benefit of the Secured Parties (as defined in the Security
Agreement), in respect of the Obligations.



     “Guarantors” means each Subsidiary Guarantor and each other Person, if any, that
executes a guaranty or other similar agreement in favor of Agent, for itself and the ratable
benefit of the Secured Parties (as defined in the Security Agreement), in connection with the
transactions contemplated by this Agreement and the other Loan Documents.



     “Halla” means Halla Climate Control Corporation.



     “Halla Transactions” means the transactions set forth on Schedule (H-1).



19









 





     “Hazardous Material” means any substance, material or waste that is regulated or
otherwise gives rise to liability under any Environmental Law, including but not limited to any
“Hazardous Waste” as defined by the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. § 6901
et seq. (1976)), any “Hazardous Substance” as defined under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) (42 U.S.C. §9601 et seq. (1980)), any
contaminant, pollutant, petroleum or any fraction thereof, asbestos, asbestos containing material,
polychlorinated biphenyls, toxic mold, mycotoxins, toxic microbial matter (naturally occurring or
otherwise), infectious waste and radioactive substances or any other substance that is regulated
under Environmental Law due to its toxic, ignitable, reactive, corrosive, caustic, or dangerous
properties.



     “Hedge Bank” means any Person that, at the time the applicable Swap Contract was
entered into, is a Lender, Agent, a Lender (as defined in the Revolving Loan Credit Agreement),
Revolving Loan Agent or an Affiliate of a Lender, Agent, a Lender (as defined in the Revolving Loan
Credit Agreement) or Revolving Loan Agent.



     “Immaterial Subsidiary” means, at any date of determination, any Subsidiary designated
as such in writing by Borrower to Agent that had consolidated assets representing 5.0% or less of
the consolidated total assets of Borrower and its Restricted Subsidiaries on the last day of the
most recent Fiscal Quarter ended more than forty-five (45) days prior to the date of determination;
provided, that consolidated assets of all Subsidiaries that would otherwise be deemed
Immaterial Subsidiaries under this definition shall not exceed 10.0% of the consolidated assets, as
applicable, of Borrower and its Restricted Subsidiaries on a consolidated basis. The Immaterial
Subsidiaries as of the Closing Date are listed on Schedule (A-2).



     “Incremental Facility Yield Adjustment” means, to the extent the applicable margin
being charged on the Incremental Term Loans is equal to or greater than fifty (50) basis points
above the Applicable Margin being charged on the existing Term Loans, an amount, if any, equal to
the sum of (a) the applicable margin being charged on the Incremental Term Loans, including any
minimum LIBOR Rate, upfront fees and original issue discount with respect thereto (based on an
assumed 4-year average life to maturity), minus (b) the Applicable Margin charged on the
Term Loans immediately prior to the date the Incremental Term Loans is implemented, including any
minimum LIBOR Rate, upfront fees and original issue discount with respect thereto (based on an
assumed 4-year average life to maturity) minus (c) fifty (50) basis points.



     “Incremental Lender” has the meaning ascribed to it in Section 2.16(a).



     “Incremental Term Loans” has the meaning ascribed to it in Section 2.16(a).



     “Incremental Term Loan Amendment” has the meaning ascribed to it in Section
2.16(a).



     “Indebtedness” means, with respect to any Person, without duplication, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase price of property
payment for which is deferred 6 months or more, but excluding obligations to trade creditors
incurred in the ordinary course of business and excluding accrued expenses and intercompany items,
(b) all reimbursement and other obligations with respect to letters of credit, bankers’ acceptances
and surety bonds, whether or not matured, (c) all obligations evidenced by notes,



20









 




bonds, debentures or similar instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), (e) all Capital Lease
Obligations and the present value (discounted at the Base Rate as in effect on the Closing Date) of
future rental payments under all synthetic leases, (f) all obligations of such Person under
commodity purchase or option agreements or other commodity price hedging arrangements, in each case
whether contingent or matured; provided, the amount of any such obligations shall be deemed
to be the Termination Value, (g) all obligations of such Person under any foreign exchange
contract, currency swap agreement, interest rate swap, cap or collar agreement or other similar
agreement or arrangement designed to alter the risks of that Person arising from fluctuations in
currency values or interest rates, in each case whether contingent or matured; provided,
the amount of any such obligations shall be deemed to be the Termination Value, (h) all
Indebtedness referred to above secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon or in property or other
assets (including accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness; provided that if such
Indebtedness shall not have been assumed by such Person and is otherwise non-recourse to such
Person, the amount of such obligation treated as Indebtedness shall not exceed the fair market
value of such property or assets, and (i) the Obligations.




     “Indemnified Liabilities” has the meaning ascribed to it in Section 2.11.



     “Indemnified Person” has the meaning ascribed to in Section 2.11.



     “Insolvency Laws” means any of the Bankruptcy Code, as now and hereafter in effect,
any successors to such statutes and any other applicable insolvency or other similar law of any
jurisdiction including, without limitation, any law of any jurisdiction permitting a debtor to
obtain a stay or a compromise of the claims of its creditors against it.



     “Instruments” means all “instruments,” as such term is defined in the Code, now owned
or hereafter acquired by any Credit Party, wherever located, and, in any event, including all
certificated securities, all certificates of deposit, and all promissory notes and other evidences
of indebtedness, other than instruments that constitute, or are a part of a group of writings that
constitute, Chattel Paper.



     “Intellectual Property” means any and all Patents, Copyrights and Trademarks.



     “Intellectual Property Security Agreement” means that certain Intellectual Property
Security Agreement, dated as of the Closing Date, made in favor of Agent, on behalf of itself and
Lenders, by each applicable Credit Party, as amended from time to time.



     “Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the
date hereof, as amended, restated or replaced from time to time, entered into by and between Agent
and the Revolving Loan Agent.



     “Interest Coverage Ratio” means, with respect to any Person for any period, the ratio
of EBITDA for the most recent twelve months up to the date of determination to Interest Expense



21









 




paid in cash (which shall not include any non-cash interest, payment-in-kind interest,
original issue discount, amortized debt discount, amortized debt issuance fees or amortized
financing costs (including, without limitation, any fees (including underwriting fees and expenses
paid in connection with the consummation of the Related Transactions or Permitted Acquisitions or
other Investments permitted hereunder), any payments made to obtain or enter into swap or hedging
agreements, any agent or collateral monitoring fees paid or required to be paid pursuant to any
Loan Document or Revolving Loan Credit Documents, the actual or implied interest component of any
consulting payments, if any, and annual agency fees, unused line fees and letter of credit fees and
expenses paid hereunder or under the Revolving Loan Credit Documents)) for such period;
provided that for the purpose of calculating the Interest Coverage Ratio on any day prior
to the expiration of four full Fiscal Quarters since the Closing Date, Interest Expense and EBITDA
shall be determined for the period commencing on the Closing Date and ending on the last day of the
most recently ended Fiscal Quarter, annualized on a simple arithmetic basis.




     “Interest Expense” means, with respect to any Person for any fiscal period, interest
expense (whether cash or non-cash) of such Person determined in accordance with GAAP for the
relevant period ended on such date.



     “Interest Payment Date” means (a) as to any Base Rate Loan, the last Business Day of
each month to occur while the Term Loans are outstanding, and (b) as to any LIBOR Loan, the last
day of the applicable LIBOR Period; provided, that in the case of any LIBOR Period greater
than three months in duration, interest shall be payable at three-month intervals and on the last
day of such LIBOR Period; and provided further that, in addition to the foregoing,
each of (x) the date upon which the Term Loans have been paid in full and (y) the Commitment
Termination Date shall be deemed to be an “Interest Payment Date” with respect to any interest that
has then accrued under this Agreement.



     “International Registry” has the meaning ascribed to such term in the Cape Town
Convention.



     “Inventory” means all “inventory,” as such term is defined in the Code, now owned or
hereafter acquired by any Credit Party, wherever located, and in any event including inventory,
merchandise, goods and other personal property that are held by or on behalf of any Credit Party
for sale or lease or are furnished or are to be furnished under a contract of service, or that
constitute raw materials, work in process, finished goods, returned goods, or materials or supplies
of any kind, nature or description used or consumed or to be used or consumed in such Credit
Party’s business or in the processing, production, packaging, promotion, delivery or shipping of
the same, including all supplies and embedded Software.



     “Investment Property” means all “investment property” as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, wherever located, including (a) all
securities, whether certificated or uncertificated, including stocks, bonds, interests in limited
liability companies, partnership interests, treasuries, certificates of deposit, and mutual fund
shares; (b) all securities entitlements of any Credit Party, including the rights of any Credit
Party to any securities account and the financial assets held by a securities intermediary in such
securities account and any free credit balance or other money owing by any securities



22









 




intermediary with respect to that account; (c) all securities accounts of any Credit Party;
(d) all commodity contracts of any Credit Party; and (e) all commodity accounts held by any Credit
Party.




     “Investments” has the meaning ascribed to it in Section 7.2.



     “IRC” means the Internal Revenue Code of 1986 and all regulations promulgated
thereunder.



     “IRS” means the Internal Revenue Service.



     “Joint Venture” means any Person a portion (but not all) of the Stock of which is
owned directly or indirectly by Borrower but which is not a Wholly Owned Subsidiary and which is
engaged in a business which is similar to or complementary with the business of Borrower and its
Subsidiaries as permitted under this Agreement.



     “Junior Financing” means any unsecured Indebtedness of Borrower or its Restricted
Subsidiaries that (a) is expressly subordinated to the prior payment in full in cash of the
Obligations on terms and conditions acceptable to Agent and Requisite Lenders, (b) is not scheduled
to mature prior to the date that is one hundred and eighty-one (181) days after the scheduled
Commitment Termination Date, (c) has no scheduled amortization or payments of principal prior to
the Commitment Termination Date, and (d) has covenant, default and remedy provisions no more
restrictive, or mandatory prepayment, repurchase or redemption provisions no more onerous or
expansive in scope, taken as a whole, than those set forth in this Agreement.



     “Junior Financing Documentation” means any documentation governing any Junior
Financing.



     “Lenders” means MSSF, the other Lenders named on the signature pages of this
Agreement, and, if any such Lender shall decide to assign (in accordance with Section 11.1)
all or any portion of the Obligations, such term shall include any permitted assignee of such
Lender.



     “Liabilities” means all claims, actions, suits, judgments, damages, losses, liability,
obligations, responsibilities, fines, penalties, sanctions, costs, fees, taxes, commissions,
charges, disbursements and expenses, in each case of any kind or nature (including interest accrued
thereon or as a result thereto and fees, charges and disbursements of financial, legal and other
advisors and consultants), whether joint or several, whether or not indirect, contingent,
consequential, actual, punitive, treble or otherwise.



     “LIBOR Business Day” means a Business Day on which banks in the City of London are
generally open for interbank or foreign exchange transactions.



     “LIBOR Loan” means a Loan or any portion thereof bearing interest by reference to the
LIBOR Rate.



     “LIBOR Period” means, with respect to any LIBOR Loan, each period commencing on a
LIBOR Business Day selected by Borrower pursuant to this Agreement and ending one, two, three or
six months (and if available to all Lenders, nine or twelve months) thereafter, as selected



23









 




by Borrower’s irrevocable notice to Agent as set forth in Section 2.5(e);
provided, that the foregoing provision relating to LIBOR Periods is subject to the
following:





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




     (b) any LIBOR Period that would otherwise extend beyond the Commitment Termination Date
shall end two (2) LIBOR Business Days’ prior to such date;




     (c) any LIBOR Period that begins on the last LIBOR 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 LIBOR Period) shall end on the last LIBOR Business Day of a calendar month; and




     (d) Borrower shall select LIBOR Periods so that there shall be no more than ten (10)
separate LIBOR Loans in existence at any one time.



     “LIBOR Rate” means for each LIBOR Period, a rate of interest determined by Agent equal
to:




     (a) the greater of (i) the rate of interest (rounded upwards, if necessary, to the
nearest 1/100th) appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute
page of such service, or any successor to or substitute for such service as determined by
Agent) as the London interbank offered rate for deposits in Dollars for a term comparable to
the applicable period of three months (but if more than one rate is specified on such page,
the rate will be an arithmetic average of all such rates), and in each case subject to the
reserve percentage prescribed by Governmental Authorities and (ii) 1.75% per annum;
divided by




     (b) a number equal to 1.0 minus the aggregate (but without duplication) of the
rates (expressed as a decimal fraction) of reserve requirements in effect on the day that is
two (2) LIBOR Business Days’ prior to the beginning of such LIBOR Period (including basic,
supplemental, marginal and emergency reserves under any regulations of the Federal Reserve
Board or other Governmental Authority having jurisdiction with respect thereto, as now and
from time to time in effect) for Eurocurrency funding (currently referred to as
“Eurocurrency Liabilities” in Regulation D of the Federal Reserve Board) that are required
to be maintained by a member bank of the Federal Reserve System.



     “License” means any Copyright License, Patent License, Trademark License or other
license of rights or interests now held or hereafter acquired by any Credit Party.



     “Lien” means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, lien, charge, claim, security interest, easement or encumbrance, or preference,
priority or other security agreement or preferential arrangement of any kind or nature whatsoever
(including any capital lease or title retention agreement, any financing lease (other than
operating



24









 




leases) having substantially the same economic effect as any of the foregoing, and the
authorized filing of any financing statement perfecting a security interest under the Code or
comparable law of any jurisdiction).




     “Litigation” has the meaning ascribed to it in Section 4.13.



     “Loan Account” has the meaning ascribed to it in Section 2.10.



     “Loan Documents” means this Agreement, the Term Notes, the Collateral Documents, the
Intercreditor Agreement, and all other agreements, instruments, documents and certificates executed
and delivered to, or in favor of, Agent or any Lenders and including all other pledges, powers of
attorney, consents, assignments, contracts, notices, letter of credit agreements and all other
written matter whether heretofore, now or hereafter executed by or on behalf of any Credit Party,
and delivered to Agent or any Lender in connection with this Agreement or the transactions
contemplated thereby. Any reference in this Agreement or any other Loan Document to a Loan
Document shall include all appendices, exhibits or schedules thereto, and all amendments,
restatements, supplements or other modifications thereto, and shall refer to this Agreement or such
Loan Document as the same may be in effect at any and all times such reference becomes operative.



     “Maintenance Program” means the manufacturer’s recommended maintenance programs
(including corrosion prevention and control programs) applicable to the Aircraft and its operation
as adapted and modified to the Credit Parties’ operations as approved at any time by Agent, the
Aviation Authority and the FAA.



     “Manufacturer Warranties” means all warranty agreements, performance guaranties,
service life policies and other agreements existing from time to time containing warranties or
undertakings relating to the manufacture, condition, operation, performance, use or repair of the
Aircraft, any Engine or any Part.



     “Mandatory Prepayment Date” has the meaning ascribed to it in Section 2.3(d).



     “Margin Stock” has the meaning ascribed to in Section 4.10.



     “Material Acquisition” means any one or more related Acquisitions that becomes
consolidated with Borrower in accordance with GAAP and that involve the payment of consideration
(including, without limitation, the assumption of Indebtedness) by Borrower and its Subsidiaries in
excess of $25,000,000 in the aggregate.



     “Material Adverse Effect” means a material adverse effect on (a) the business,
financial condition, operations, performance or properties of Borrower and its Subsidiaries, taken
as a whole, after giving effect to the Related Transactions, (b) the ability of Borrower or the
other Credit Parties to perform their obligations under the Loan Documents when due and (c) the
validity or enforceability of any of the Loan Documents or the rights and remedies of Agent and the
Lenders under any of the Loan Documents.



     “Material Contract” means each of the agreements set forth on Schedule (4.28)
to this Agreement.



25









 





     “Material Disposition” means any one or more related Dispositions by Borrower or any
Subsidiary of any business entity or entities, or of any operating unit or units of Borrower or any
Subsidiary, that become unconsolidated with Borrower in accordance with GAAP and that involve the
receipt of consideration by Borrower and its Subsidiaries in excess of $25,000,000 in the
aggregate.



     “Maximum Lawful Rate” has the meaning ascribed to it in Section 2.5(f).



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



     “Mortgage” means the mortgages, deeds of trust or other real estate security documents
delivered by any Credit Party to Agent on behalf of itself and Lenders with respect to the
Mortgaged Property, all in form and substance reasonably satisfactory to Agent.



     “Mortgaged Property” means the real property owned by the Credit Parties in fee and
listed on Schedule (4.25(b)).



     “MNPI” means information that is (a) not publicly available with respect to Borrower
(or any Subsidiary of Borrower, as the case may be) and (b) material with respect to Borrower (or
its Subsidiaries) or their securities for purposes of United States federal and state securities
laws.



     “MSSF” means Morgan Stanley Senior Funding, Inc.



     “Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA, and to which any Credit Party or ERISA Affiliate is making, is obligated to make or has made
or been obligated to make, contributions on behalf of participants who are or were employed by any
of them.



     “National Flood Insurance Program” means the program created by the United States
Congress pursuant to the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act
of 1973, as revised by the National Flood Insurance Reform Act of 1994, that mandates the purchase
of flood insurance to cover real property improvements located in Special Flood Hazard Areas in
participating communities when such real property improvements are granted as security for a loan
and provides protection to property owners through a Federal insurance program.



     “Net Cash Proceeds” means (i) with respect to any incurrence of Indebtedness, asset
Disposition, casualty or condemnation, (a) the cash proceeds actually received in respect of such
event, including (1) any cash received in respect of any non-cash proceeds, but only as and when
received, and (2) in the case of a casualty or condemnation, insurance proceeds and condemnation
awards, net of (b) the sum of (1) all fees, costs and expenses paid by Borrower and its Restricted
Subsidiaries, including, without limitation, customary fees, brokerage fees, commissions, costs and
other expenses (other than those payable to any Group Member) in connection with such event, (2)
the amount of all taxes paid (or reasonably and in good faith estimated to be payable) by Borrower
and its Restricted Subsidiaries in connection with such event, including any withholding taxes
imposed on the repatriation of proceeds (subject to Section 2.3(f)), (3) in the case of a
Disposition, casualty or condemnation, the principal amount, premium or penalty, if any, interest
and other amounts on any Indebtedness for borrowed money



26









 




(other than the Term Loans and the Loans (as defined in the Revolving Loan Credit Agreement))
which is secured by a Lien on the properties subject to such Disposition, casualty or condemnation
(so long as such Lien was permitted to encumber such properties under the Loan Documents) and which
is repaid with such proceeds, (4) any payments to be made by any Group Member as agreed between
such Group Member and the purchaser of any assets subject to a Disposition, casualty or
condemnation in connection therewith, and (5) the amount of any reasonable reserves established by
Borrower and its Restricted Subsidiaries in accordance with GAAP (other than any taxes deducted
pursuant to clause (2) above) (x) associated with the assets that are the subject of such event and
(y) retained by Borrower or any Restricted Subsidiary to fund contingent liabilities that are
directly attributable to such event and that are reasonably estimated to be payable by Borrower or
any Restricted Subsidiary within 18 months following the date that such event occurred (other than
in the case of contingent tax liabilities, which shall be reasonably estimated to be payable within
the current or immediately succeeding tax year); provided that any amount by which such
reserves are reduced for reasons other than payment of any such contingent liabilities shall be
considered “Net Cash Proceeds” on the date of such reduction and (ii) with respect to any issuance
of Preferred Stock or issuance of Indebtedness or debt securities, the cash proceeds paid to or
received in respect of such issuance of Preferred Stock or Indebtedness as the case may be
(including cash proceeds subsequently as and when received at any time in respect of such issuance
from non-cash consideration initially received or otherwise), net of underwriting discounts and
commissions or placement fees, investment banking fees, legal fees, consulting fees, accounting
fees and other customary fees and expenses incurred by any Group Member in connection therewith
(other than those paid to another Group Member).




     “Non-Profit Subsidiaries” means any Restricted Subsidiary that is exempt from income
taxes and is organized and operated exclusively for charitable, scientific, testing for public
safety or educational purposes (within the meaning of Section 501(c)(3) of the IRC or, in the case
of any Non-U.S. Restricted Subsidiary, any similar provision under the laws of the jurisdiction in
which such Non-U.S. Restricted Subsidiary is organized).



     “Non-Qualifying Preferred Stock” means Preferred Stock which meets the requirements of
Disqualified Stock.



     “Non-Recourse Debt” means all Indebtedness which, in accordance with GAAP, is not
required to be recognized on a consolidated balance sheet of Borrower as a liability.



     “Not Otherwise Applied” means, with reference to any amount of Net Cash Proceeds of
any transaction or event, that such amount (a) was not required to be applied to prepay the Term
Loans pursuant to Section 2.3(b) and (b) was not previously applied in determining the
permissibility of a transaction under the Loan Documents where permissibility was (or may have
been) contingent on receipt of such amount or utilization of such amount for a specified purpose.



     “Notice of Conversion/Continuation” has the meaning ascribed to it in Section
2.5(e).



     “Obligations” means all loans, advances, debts, liabilities and obligations for the
performance of covenants, or for payment of monetary amounts (whether or not such performance is
then required or contingent, or such amounts are liquidated or determinable)



27









 




owing by any Credit Party to Agent or any Lender, and all covenants and duties regarding such
amounts, of any kind or nature, present or future, whether or not evidenced by any note, agreement,
letter of credit agreement or other instrument, arising under this Agreement or any of the other
Loan Documents. This term includes all principal, interest (including all interest that accrues
after the commencement of any case or proceeding by or against any Credit Party in bankruptcy,
whether or not allowed in such case or proceeding), Fees, Secured Hedging Obligations, expenses,
attorneys’ fees and any other sum chargeable to any Credit Party under this Agreement or any of the
other Loan Documents.




     “OFAC” has the meaning ascribed to it in Section 4.29.



     “Other Factoring Assets” means, with respect to any Receivable subject to a Permitted
Factoring Program, all collections relating to such Receivable and all lock-boxes and similar
arrangements and collection accounts into which the proceeds of such Receivable or a Related
Security with respect to such Receivable are collected or deposited, all rights of the applicable
Foreign Subsidiary in, to and under the related purchase and sale agreements, and all other rights
and payments relating to such Receivable. For the avoidance of doubt, Other Factoring Assets shall
not include any assets included in the Collateral or any assets of any Credit Party.



     “Other Taxes” has the meaning ascribed to it in Section 2.13(b).



     “Other Securitization Assets” means, with respect to any Receivable subject to a
Permitted Receivables Financing, all collections relating to such Receivable and all lock-boxes and
similar arrangements and collection accounts into which the proceeds of such Receivable or Related
Security with respect to such Receivable are collected or deposited, all rights of the applicable
Foreign Subsidiary in, to and under the related purchase and sale agreements, and all other rights
and payments relating to such Receivable. For the avoidance of doubt, Other Securitization Assets
shall not include any assets included in the Collateral or any assets of any Credit Party.



     “Parts” means all appliances, accessories, computers, instruments, assemblies,
modules, components and other items of equipment which are part of or are installed on the Airframe
or the Engines at the date of creation of the Aircraft Mortgage and Security Agreement or any
appliances, accessories, computers, instruments, assemblies, modules, components and other items of
equipment installed on the Airframe or the Engines in accordance with the Aircraft Mortgage and
Security Agreement by way of replacement for such appliances, accessories, computers, instruments,
assemblies, modules, components and other items of equipment or any previous such replacements and,
where the context permits, such of the Technical Records as relate thereto.



     “Patent License” means rights under any written agreement now owned or hereafter
acquired by any Credit Party granting any right with respect to any Patent.



     “Patents” means all of the following in which any Credit Party now holds or hereafter
acquires any interest: (a) all letters patent of the United States or of any other country, all
issuances and recordings thereof, and all applications for letters patent of the United States or
of any other country, including issuances, recordings and applications in the United States Patent



28









 




and Trademark Office or in any similar office or agency of the United States, any state, or
any other country, and (b) all reissues, continuations, continuations-in-part or extensions
thereof.




     “Patriot Act” has the meaning ascribed to it in Section 4.30.



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Plan” means a Plan described in Section 3(2) of ERISA.



     “Permitted Acquisition” means any Acquisition with respect to which each of the
following conditions has been satisfied:



          (a) immediately before and immediately after giving Pro Forma Effect to any such Acquisition,
no Event of Default shall have occurred and be continuing;




          (b) such Acquisition shall have been approved by the board of directors of the Person (or
similar governing body if such Person is not a corporation) which is the subject of such
Acquisition and such Person shall not have announced that it will oppose such Acquisition and shall
not have commenced any action which alleges that any such Acquisition will violate any applicable
law;




          (c) the consideration for such Acquisition shall consist exclusively of (i) issued shares of
Stock of Borrower or the Net Cash Proceeds of an issuance of Stock of Borrower which was Not
Otherwise Applied, (ii) cash consideration or assumption of Indebtedness in an aggregate amount for
all Permitted Acquisitions not to exceed $400,000,000 and/or (iii) the reinvestment of Net Cash
Proceeds of Dispositions to the extent permitted under Section 7.2(y) so long as such Net
Cash Proceeds are reinvested in like assets of Borrower (e.g., Investments for Investments or
Permitted Acquisitions, current assets for current assets, fixed assets for fixed assets, etc.);




          (d) Borrower shall, upon consummation of such Acquisition, be in compliance with the
requirements of Section 6.15 with respect to the assets and Stock acquired in such
Acquisition;




          (e) Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such
Acquisition (including any Indebtedness assumed or permitted to exist or incurred pursuant to
Section 7.3), with the Financial Covenants, as such Financial Covenants are recomputed as
of the last day of the most recently ended Fiscal Quarter under such Section as if such Acquisition
had occurred on the first day of such Fiscal Quarter;




          (f) the acquired Person or assets are in the same or substantially similar, ancillary or
related line of business as the Credit Parties; and




          (g) Borrower shall have delivered to Agent, for the benefit of the Lenders, no later than the
date on which any such Acquisition is consummated, a certificate of a Financial Officer of
Borrower, in form and substance reasonably satisfactory to Agent, certifying that all of the
requirements set forth in clauses (a) through (f) have been satisfied or will be
satisfied on or prior to the consummation of such Acquisition.




29









 





     “Permitted Encumbrances” means the encumbrances and Liens permitted under Section
7.7.



     “Permitted Factoring Program” means (a) Non-Recourse Debt relating to the sale or
financing of Receivables (other than Receivables included in the Collateral) and any Related
Security or (b) other sales (in connection with the financings of) and financings of Receivables
and any Related Security (it being understood that Standard Factoring Undertakings shall be
permitted in connection with such financings).



     “Permitted Holders” means the Persons listed on Schedule (P-1) and any of
their respective Affiliates.



     “Permitted Receivables Financing” means (a) Non-Recourse Debt relating to the sale or
financing of Receivables and Related Security (in each case, to the extent not included in the
Collateral) or (b) any transaction or series of transactions entered into by any Foreign Subsidiary
or a Securitization Subsidiary pursuant to which such Foreign Subsidiary or Securitization
Subsidiary, as applicable, sells, conveys or otherwise transfers to (1) a Securitization Subsidiary
in the case of any Foreign Subsidiary or (2) any other Person in the case of a transfer by a
Securitization Subsidiary or transfers an undivided interest in or grants a security interest in
any Receivables (whether now existing or arising in the future) of any Foreign Subsidiary (it being
understood that Standard Securitization Undertakings shall be permitted in connection with such
financings).



     “Permitted Restructuring Transaction” means the transactions described on Schedule
(P-2).



     “Person” means any individual, sole proprietorship, partnership, joint venture, trust,
unincorporated organization, association, corporation, limited liability company, institution,
public benefit corporation, other entity or government (whether federal, state, county, city,
municipal, local, foreign, or otherwise, including any instrumentality, division, agency, body or
department thereof).



     “Petition Date” shall have the meaning ascribed to it in the recitals to this
Agreement.



     “Plan” means, at any time, an “employee benefit plan”, as defined in Section 3(3) of
ERISA (other than a Multiemployer Plan), that any Credit Party or ERISA Affiliate maintains,
contributes to or has an obligation to contribute to or has maintained, contributed to or had an
obligation to contribute to at any time within the past 7 years on behalf of participants who are
or were employed by any Credit Party or ERISA Affiliate.



     “Plan Documents” has the meaning ascribed to it in Section 3.1(k).



     “Plan of Reorganization” has the meaning ascribed to it in the recitals to this
Agreement.



     “Pledge Agreement” means that certain Pledge Agreement, dated as of the Closing Date,
made by the Credit Parties in favor of Agent, on behalf of itself and the Lenders, as amended from
time to time.



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     “Postpetition Letter of Credit Facility” means that certain Letter of Credit
Reimbursement and Security Agreement, dated as of November 13, 2009, by and between Borrower and
U.S. Bank National Association, a national banking institution, as amended, restated, supplemented
or otherwise modified prior to the date hereof.



     “Preferred Stock” means any Stock of any Person which is not common Stock.



     “Prepayment Amount” has the meaning ascribed to it in Section 2.3(d).



     “Prepayment Option Notice” has the meaning ascribed to it in Section 2.3(d).



     “Prepetition Loan Agreements” means (i) that certain Credit Agreement, dated as of
August 14, 2006 (“Prepetition Term Loan Agreement”), among Borrower, certain of its
Subsidiaries, the lenders party thereto, Wilmington Trust FSB, as administrative agent, and the
other parties thereto, as amended, restated, supplemented or otherwise modified prior to the date
hereof, and (ii) that certain Amended and Restated Credit Agreement, dated as of April 10, 2007
(“Prepetition ABL Agreement”), among Borrower, the lenders party thereto, Bank of New York
Mellon, as administrative agent, and the other parties thereto, as amended, restated, supplemented
or otherwise modified prior to the date hereof.



     “Prior Agents” means (i) Bank of New York Mellon, as successor administrative agent
under the Prepetition ABL Agreement and (ii) Wilmington Trust FSB, as successor administrative
agent under the Prepetition Term Loan Agreement.



     “Prior Lender” means any lender under the Prepetition Loan Agreements, or any holder
of the Prior Lender Obligations.



     “Prior Lender Obligations” means all obligations of any Credit Party and any of their
Subsidiaries pursuant to the Prepetition Loan Agreements and all instruments and documents executed
pursuant thereto or in connection therewith.



     “Proceeds” means “proceeds,” as such term is defined in the Code, including (a) any
and all proceeds of any insurance, indemnity, warranty or guaranty payable to any Credit Party from
time to time with respect to any of the Term Loan Priority Collateral or Revolver Priority
Collateral, as applicable, (b) any and all payments (in any form whatsoever) made or due and
payable to any Credit Party from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral by any Governmental
Authority (or any Person acting under color of Governmental Authority), (c) any claim of any Credit
Party against third parties (i) for past, present or future infringement of any Patent, or (ii) for
past, present or future infringement of any Copyright or Trademark, or for dilution of, or injury
to the goodwill associated with any Trademark, (d) any recoveries by any Credit Party against third
parties with respect to any litigation or dispute concerning any of the Collateral including claims
arising out of the loss or nonconformity of, interference with the use of, defects in, or
infringement of rights in, or damage to, Collateral, (e) all amounts collected on, or distributed
on account of, other Collateral, including dividends, interest, distributions and Instruments with
respect to Investment Property and pledged Stock, and (f) any and all other amounts, rights to
payment or other property acquired upon the sale, lease, license, exchange or other disposition of
Collateral and all rights arising out of Collateral.



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     “Pro Forma” means the unaudited consolidated balance sheet of Borrower and each of its
Subsidiaries as of June 30, 2010 after giving Pro Forma Effect to the Related Transactions.



     “Pro Forma Basis,” “Pro Forma Compliance” and “Pro Forma Effect”
means, (a) pro-forma adjustments which would be permitted or required by Regulation S-X or S-K
under the Securities Act and such other adjustments as may be reasonably agreed between Borrower
and Agent and (b) for purposes of calculating compliance with each of the Financial Covenants in
respect of a Specified Transaction, that such Specified Transaction and the following transactions
in connection therewith shall be deemed to have occurred as of the first day of the applicable
period of measurement in such covenant: (i) income statement items (whether positive or negative)
attributable to the property or Person subject to such Specified Transaction, (A) in the case of a
Disposition of all or substantially all the assets of or all the Stock of any Subsidiary of such
Person or of any division or product line of such Person or any of its Subsidiaries, shall be
excluded, and (B) in the case of a Permitted Acquisition or Investment described in the definition
of “Specified Transaction”, shall be included, (ii) any retirement of Indebtedness, and (ii) any
Indebtedness incurred or assumed by Borrower or any of its Restricted Subsidiaries in connection
therewith and if such Indebtedness has a floating or formula rate, shall have an implied rate of
interest for the applicable period for purposes of this definition determined by utilizing the rate
which is or would be in effect with respect to such Indebtedness as at the relevant date of
determination.



     “Pro Rata Share” means with respect to all matters relating to any Lender, the
percentage obtained by dividing (i) the aggregate outstanding principal balance of the Term Loans
held by that Lender, by (ii) the outstanding principal balance of the Term Loans held by all
Lenders.



     “Qualified Plan” means a Pension Plan that is intended to be tax-qualified under
Section 401(a) of the IRC.



     “Real Estate” has the meaning ascribed to it in Section 4.6.



     “Receivables” means any indebtedness, accounts receivable and other obligations owed
to any Foreign Subsidiary, or in which such party has a security interest or other interest, or any
right of such Foreign Subsidiary to payment from or on behalf of an obligor, whether constituting
an account, chattel paper, instrument or general intangible contract rights including rights to
returned or repossessed goods, insurance policies, security deposits, indemnities, checks or other
negotiable instruments relating to debtor(s) obligations, arising in connection with the sale or
lease of goods or the rendering of services by such Foreign Subsidiary, including, without
limitation, the obligation to pay any finance charges, fees and other charges with respect thereto.



     “Receivables Repurchase Obligation” means any obligation of a seller of Receivables in
a Permitted Receivables Financing to repurchase Receivables arising as a result of a breach of a
Standard Securitization Undertaking, including as a result of a Receivable or portion thereof
becoming subject to any asserted defense, dispute, off set or counterclaim of any kind as a result
of any action taken by, any failure to take action by or any other event relating to the seller.



     “Refinancing” means the repayment in full by Borrower of the Prior Lender Obligations
on the Closing Date.




32











 





     “Register” has the meaning ascribed to it in Section 11.1.



     “Related Persons” means, with respect to any Person, each Affiliate of such Person and
each director, officer, employee, agent, trustee, representative, attorney, accountant and each
insurance, environmental, legal, financial and other advisor and other consultants and agents of or
to such Person or any of its Affiliates.



     “Related Security” means with respect to any Receivable, (a) all of the relevant
Foreign Subsidiary’s interest, in any inventory and goods (including returned or repossessed
inventory and goods), and documentation or title evidencing the shipment or storage of any
inventory and goods (including returned or repossessed inventory and goods), relating to any sale
giving rise to such Receivable, and all insurance contracts with respect thereto; (b) all other
security interests or Liens and property subject thereto from time to time purporting to secure
payment of such Receivable, together with all Code financing statements or similar filings and
security agreements describing any collateral relating thereto; (c) all guaranties, letters of
credit, letter of credit rights, supporting obligations, indemnities, insurance and other
agreements or arrangements of whatever character from time to time supporting or securing payment
of such Receivable or otherwise relating to such Receivable; (d) all service contracts and other
contracts, agreements, instruments and other writings associated with such Receivable; (e) all
records related to such Receivable or any of the foregoing; (f) all of the relevant Foreign
Subsidiary’s right, title and interest in, to and under the sales agreement and related performance
guaranty and the like in respect of such Receivable; and (g) all proceeds of any of the foregoing.



     “Related Transactions” means the initial borrowing under the Revolving Loan Credit
Agreement and this Agreement on the Closing Date, the Refinancing, the equity issuance and
contribution under the Equity Commitment Agreement, the payment of all fees, costs and expenses
associated with all of the foregoing and the execution and delivery of all of the Related
Transactions Documents.



     “Related Transactions Documents” means the Loan Documents and all other agreements or
instruments executed in connection with the Related Transactions.



     “Release” means any release, threatened release, spill, emission, leaking, pumping,
pouring, emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Material in the environment, including the migration of
Hazardous Material through or in the air, soil, surface water, ground water or property.



     “Replacement Lender” has the meaning ascribed to it in Section 2.14(d).



     “Requisite Lenders” means Lenders having (a) more than 50% of the Commitments of all
Lenders, or (b) if the Commitments have been terminated, more than 50% of the aggregate outstanding
amount of all Term Loans.



     “Restricted Payment” means, with respect to any Person (a) the declaration or payment
of any dividend or the incurrence of any liability to make any other payment or distribution of
cash or other property or assets (whether in cash, securities or other property) in respect of
Stock (other than dividends payable solely in the form of common Stock of such Person); (b) any
payment (whether in cash, securities or other property) on account of the purchase, redemption,



33









 




defeasance, sinking fund or other retirement of such Person’s Stock or any other payment or
distribution made in respect thereof, either directly or indirectly; (c) any payment (whether in
cash, securities or other property) made to redeem, purchase, repurchase or retire, or to obtain
the surrender of, any outstanding warrants, options or other rights to acquire Stock of such Person
now or hereafter outstanding; (d) any payment (whether in cash, securities or other property) of a
claim for the rescission of the purchase or sale of, or for material damages arising from the
purchase or sale of, any shares of such Person’s Stock or of a claim for reimbursement,
indemnification or contribution arising out of or related to any such claim for damages or
rescission; (e) any payment, loan, contribution, or other transfer of funds or other property to
any Stockholder of such Person that is prohibited by Section 7.4; and (f) any voluntary or
optional payment or prepayment of principal of, or redemption, purchase, retirement, defeasance
(including in substance or legal defeasance), sinking fund or similar payment with respect to, or
acquisition for value of, any Junior Financing.




     “Restricted Subsidiary” means any Subsidiary of Borrower other than an Unrestricted
Subsidiary.



     “Retiree Welfare Plan” means, at any time, a welfare plan (within the meaning of
Section 3(1) of ERISA) that provides for continuing coverage or benefits for any participant or any
beneficiary of a participant after such participant’s termination of employment, other than
continuation coverage provided pursuant to Section 4980B of the IRC or other similar state law and
at the sole expense of the participant or the beneficiary of the participant.



     “Revolving Loan Agent” means MSSF, as Agent under the Revolving Loan Credit Agreement.



     “Revolving Loan Credit Agreement” means that certain $200,000,000 Revolving Loan
Credit Agreement, dated as of the date hereof, to be entered into by and among the Borrowers, the
other Credit Parties party thereto, Agent, the Co-Collateral Agents, the other agents party
thereto, and the other Lenders and L/C Issuers from time to time party thereto, as each such term
is defined therein, as such agreement is amended, restated or replaced from time to time.



     “Revolving Loan Credit Documents” means the Revolving Loan Credit Agreement and all
other “Loan Documents” under and as defined in the Revolving Loan Credit Agreement, as the same may
be amended, restated, supplemented or replaced from time to time in accordance with the terms of
the Intercreditor Agreement.



     “Revolver Loan Commitment” means the aggregate commitment of those certain revolver
lenders to make revolving credit advances or incur letter of credit obligations, which aggregate
commitment shall be Two Hundred Million Dollars ($200,000,000) on the Closing Date, as such amount
may be adjusted from time to time in accordance with the Revolving Loan Credit Agreement and the
Intercreditor Agreement.



     “Revolver Loan Obligations” means the “Obligations” as defined in the Revolving Loan
Credit Agreement.



     “Revolver Priority Collateral” means “Revolver Priority Collateral” as defined in the
Intercreditor Agreement.



34









 





     “Rights Offering” has the meaning ascribed to such term in the Equity Commitment
Agreement.



     “S&P” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies,
Inc.



     “Sale-Leaseback Transaction” means any sale-leaseback, synthetic lease or similar
transaction.



     “Schedules” means the Schedules prepared by Borrower and denominated as Schedules
(A-1) through (7.20) in the Index to this Agreement.



     “SDN List” has the meaning ascribed to it in Section 4.29.



     “SEC” means the United States Securities and Exchange Commission.



     “Secured Hedge Agreement” means any Swap Contract that, at the time such Swap Contract
was entered into, is entered into by and between any Credit Party and any Hedge Bank to protect
against fluctuations in interest rates or currencies in connection with the Term Loans.



     “Secured Hedging Obligations” means the obligations of any Credit Party arising under
any Secured Hedge Agreement.



     “Securitization Subsidiary” means a Subsidiary of Borrower or another Person formed
for the purposes of engaging in a Permitted Receivables Financing and to which a Foreign Subsidiary
transfers Receivables and which engages in no activities other than in connection with the
financing of Receivables of Foreign Subsidiaries, and any business or activities incidental or
related to such financing, and in the case of a Subsidiary which is designated by the board of
directors of Borrower (as provided below) to be a Securitization Subsidiary (a) no portion of the
Indebtedness or any other Obligations (contingent or otherwise) of which (1) is guarantied by
Borrower or any Restricted Subsidiary of Borrower (excluding guaranties of obligations (other than
the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings),
(2) is recourse to or obligates Borrower or any Restricted Subsidiary of Borrower (other than the
Securitization Subsidiary) in any other way other than pursuant to Standard Securitization
Undertakings or (3) subjects any property or asset of Borrower or any Restricted Subsidiary of
Borrower (other than Receivables and Related Security as provided in the definition of
“Permitted Receivables Financing”), directly or indirectly, contingently or otherwise, to
the satisfaction thereof other than pursuant to Standard Securitization Undertakings, (b) with
which neither Borrower nor any Restricted Subsidiary of Borrower has any material contract,
agreement, arrangement or understanding (other than on terms which Borrower reasonably believes to
be no less favorable to Borrower or such Restricted Subsidiary than those that might be obtained at
the time from Persons who are not Affiliates of Borrower) other than fees payable in the ordinary
course of business in connection with servicing Receivables, and (c) with which neither Borrower
nor any Restricted Subsidiary of Borrower has any obligation to maintain or preserve such entity’s
financial condition or cause such entity to achieve certain levels of operating results. Any such
designation by the board of directors of Borrower will be evidenced to Agent by filing with Agent a
certified copy of a resolution of the board of directors of Borrower giving effect to such
designation, together with a certificate of a



35









 




Financial Officer of Borrower certifying that such designation complied with the foregoing
conditions.




     “Security Agreement” means that certain Security Agreement, dated as of the Closing
Date, made by the Credit Parties in favor of Agent, on behalf of itself and Lenders, as amended,
restated, supplemented or otherwise modified from time to time.



     “Software” means all “software” as such term is defined in the Code, now owned or
hereafter acquired by any Credit Party, other than software embedded in any category of Goods,
including all computer programs and all supporting information related thereto.



     “Solvent” means, with respect to any Person organized under the laws of the United
States or any state thereof, on a particular date, that on such date (a) the fair value of the
property (on a going concern basis) of such Person is greater than the total amount of
“liabilities”, including “contingent liabilities”, of such Person, (b) the “present fair salable
value” of the assets (on a going concern basis) of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as they become absolute
and matured in the normal course of business, (c) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts
and liabilities mature in the normal course of business, and (d) such Person is not engaged in a
business or transaction, and is not about to engage in a business or transaction, for which such
Person’s property would constitute unreasonably small capital. The meaning of each of the quoted
terms in the foregoing sentence is determined in accordance with applicable federal and state laws
governing the insolvency of debtors. The amount of contingent liabilities (such as litigation,
guaranties and pension plan liabilities) at any time shall be computed as the amount that, in light
of all the facts and circumstances existing at the time, represents the amount that can be
reasonably expected to become an actual or matured liability.



     “Special Flood Hazard Area” means an area that FEMA’s current flood maps indicate has
at least a one percent (1.00%) chance of a flood equal to or exceeding the base flood elevation (a
100-year flood) in any given year.



     “Specified Transaction” means any (a) Disposition of all or substantially all the
assets of or all the Stock of any Restricted Subsidiary or of any division or product line of
Borrower or any of its Restricted Subsidiaries, (b) Permitted Acquisition, (c) designation of any
Restricted Subsidiary as an Unrestricted Subsidiary, or of any Unrestricted Subsidiary as a
Restricted Subsidiary, in each case in accordance with Section 6.16, or (d) the proposed
incurrence of Indebtedness or making of any Restricted Payment in respect of which compliance with
the Financial Covenants is by the terms of this Agreement required to be calculated on a Pro Forma
Basis.



     “SPV” means any special purpose funding vehicle identified as such in a writing by any
Lender to Agent.



     “Standard Factoring Undertakings” means representations, warranties, covenants and
indemnities entered into by a Foreign Subsidiary which are reasonably customary in a factoring or
other sales (in connection with financings of) and financings of Receivables and Related



36









 




Security, including, without limitation, those relating to the servicing of assets of such
factoring or financing; provided that in no event shall Standard Factoring Undertakings include any
guaranty of indebtedness incurred in connection with the such factoring, guaranties of obligations
of participating Foreign Subsidiaries or any other Group Member (other than in the case of
Section 7.3(g), guaranties of obligations or participating Foreign Subsidiaries in respect
thereof by other Foreign Subsidiaries).




     “Standard Securitization Undertakings” means representations, warranties, covenants,
indemnities and guaranties of performance entered into by a Foreign Subsidiary which are customary
in a Permitted Receivables Financing, including, without limitation, those relating to the
servicing of the assets of a Securitization Subsidiary, it being understood that any Receivables
Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.



     “State of Registration” means the United States of America.



     “Stock” means all shares, options, warrants, general or limited partnership interests,
membership interests or other equivalents (regardless of how designated) of or in a corporation,
partnership, limited liability company or equivalent entity whether voting or nonvoting, including
common stock, preferred stock or any other “equity security” (as such term is defined in Rule
3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934).



     “Stockholder” means, with respect to any Person, each holder of Stock of such Person.



     “Subsidiary” means, with respect to any Person, (a) any corporation of which an
aggregate of more than 50% of the outstanding Stock having ordinary voting power to elect a
majority of the board of directors of such corporation (irrespective of whether, at the time, Stock
of any other class or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time, directly or indirectly, owned legally or
beneficially by such Person or one or more Subsidiaries of such Person, or with respect to which
any such Person has the right to vote or designate the vote of more than 50% of such Stock whether
by proxy, agreement, operation of law or otherwise, and (b) any partnership or limited liability
company in which such Person and/or one or more Subsidiaries of such Person shall have an interest
(whether in the form of voting or participation in profits or capital contribution) of more than
50% or of which any such Person is a general partner or may exercise the powers of a general
partner. Unless the context otherwise requires, each reference to a Subsidiary shall be a
reference to a Subsidiary of Borrower.



     “Subsidiary Guarantors” means all Subsidiaries of Borrower other than Excluded
Subsidiaries. As of the Closing Date, the Subsidiary Guarantors are listed on Schedule
(A-1).



     “Subsidiary Guaranty” means that certain Subsidiary Guaranty, substantially in the
form as agreed to by Agent, dated as of the Closing Date, executed by the Subsidiary Guarantors in
favor of Agent and Lenders, as amended from time to time.



     “Supporting Obligations” means all “supporting obligations” as such term is defined in
the Code, including letters of credit and guaranties issued in support of Accounts, Chattel Paper,
Documents, General Intangibles, Instruments, or Investment Property.



37









 





     “Swap Contract” means (a) 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, cross-currency hedges, commodities, equity or debt instruments or
securities, or economic, financial or pricing indices or measures of economic, financial or pricing
risk or value or any similar transaction or any combination of these transactions; provided that no
phantom stock or similar plan providing for payments only on account of services provided by
current or former directors, officers, employees or consultants of Borrower or any of its
Subsidiaries shall be a “Swap Agreement” and (b) any agreement with respect to any transactions
(together with any related confirmations) which are subject to the terms and conditions of, or are
governed by, any master agreement published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement or any other similar master agreement.



     “Taxes” means present and future taxes (including, but not limited to, income,
corporate, capital, excise, property, ad valorem, sales, use, payroll, value added and franchise
taxes, deductions, withholdings and custom duties), charges, fees, imposts, levies, deductions or
withholdings and all liabilities with respect thereto, imposed by any Governmental Authority
excluding, in the case of Section 2.13 only, (a) taxes imposed on or measured by the net
income or capital of Agent or a Lender by the jurisdictions under the laws of which Agent and
Lenders are organized or conduct business or any political subdivision thereof, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed by any other
jurisdiction in which a Lender is located and (c) in the case of a Lender (other than an assignee
pursuant to a request by Borrower under Section 2.14(d)), any withholding tax that is
imposed on amounts payable to such Lender and is the result of any law in effect (including FATCA)
on (and, in the case of FATCA, including any regulations or official interpretations thereof issued
after) the date such Lender becomes a party to this Agreement (or designates a new lending office,
unless such designation is at the request of Borrower) or is attributable to such Lender’s failure
to comply with Section 2.13(d), except to the extent that such Lender (or its assignor, if
any) was entitled, at the time of designation of a new lending office (or assignment), to receive
additional amounts from Borrower with respect to such withholding tax pursuant to Section
2.13(a).



     “Technical Records” means all records, logs, manuals, technical data, tags and other
materials and documents supplied to or created by Borrower or required (a) by the Aviation
Authority, the FAA or EASA, and/or (b) the Aircraft Mortgage and Security Agreement and/or (c) in
accordance with the customary prudent operating practices of major scheduled airlines, together
with all replacements, additions, revisions and renewals from time to time made to them in
accordance with the provisions of the Aircraft Mortgage and Security Agreement, to be maintained by
Borrower relating to the Aircraft, its condition, maintenance, repair and modification.



     “Term Loan Installment” has the meaning set forth in Section 2.1(a)(iv).



     “Term Loan Priority Collateral” means “Term Loan Priority Collateral” as defined in
the Intercreditor Agreement.



38









 





     “Term Loans” has the meaning assigned to it in Section 2.1(a)(i) and includes
Incremental Term Loans under Section 2.16.



     “Term Note” has the meaning assigned to it in Section 2.1(a)(i).



     “Termination Date” means the date on which (a) the Term Loans have been indefeasibly
repaid in full in cash, (b) all other Obligations under this Agreement and the other Loan Documents
have been completely discharged or paid (other than contingent indemnification obligations for
which no claim has been asserted) and (c) Borrower has no further right to borrow any monies under
this Agreement.



     “Termination Value” means, on any date in respect of any Swap Contract or other swap
or hedging agreement or obligation, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contract, other swap or hedging agreement, (a) if such
Swap Contract or other swap or hedging agreement has been terminated as of such date, an amount
equal to the termination value determined in accordance with such Swap Contract or other swap or
hedging agreement and (b) if such Swap Contract or other swap or hedging agreement has not been
terminated as of such date, an amount equal to the mark-to-market value for such Swap Contract or
other swap or hedging agreement, which mark-to-market value shall be determined by Agent by
reference to one or more mid-market value or other readily available quotations provided by any
recognized dealer (including any Lender or any Affiliate of any Lender) of such Swap Contract or
other swap or hedging agreement.



     “Title Insurance” has the meaning assigned to such term in Section 3.1(xi)(b).



     “Title IV Plan” means a Pension Plan (other than a Multiemployer Plan) that is covered
by Title IV of ERISA or Section 412 of the IRC, and that any Credit Party or ERISA Affiliate
maintains, contributes to or has an obligation to contribute to on behalf of participants who are
or were employed by any of them.



     “Total Net Leverage Ratio” means, with respect to Borrower and its Restricted
Subsidiaries, on a consolidated basis, the ratio of (a) (i) all Indebtedness included on the
balance sheet of Borrower and its Restricted Subsidiaries (excluding Guarantied Obligations)
less (ii) unrestricted cash and Cash Equivalents of Borrower and its Restricted
Subsidiaries, to (b) EBITDA of Borrower and its Restricted Subsidiaries, on a consolidated basis,
for the most recent twelve months up to the date of determination; provided that for the
purpose of calculating the Total Net Leverage Ratio on any day prior to the expiration of four full
Fiscal Quarters since the Closing Date, EBITDA shall be determined for the period commencing on the
Closing Date and ending on the last day of the most recently ended Fiscal Quarter, annualized on a
simple arithmetic basis.



     “Trademark License” means rights under any written agreement now owned or hereafter
acquired by any Credit Party granting any right to use any Trademark.



     “Trademarks” means all of the following now owned or hereafter existing or adopted or
acquired by any Credit Party: (a) all trademarks, trade names, domain names, corporate names,
business names, trade dresses, service marks, logos, other source or business identifiers, all
registrations and recordings thereof; and all applications in connection therewith, including



39









 




registrations, recordings and applications in the United States Patent and Trademark Office or
in any similar office or agency of the United States, any state or territory thereof, or any other
country or any political subdivision thereof; (b) all extensions or renewals thereof; and (c) all
goodwill associated with or symbolized by any of the foregoing.




     “Unfunded Pension Liability” means, at any time, the aggregate amount, if any, of the
sum of (a) the amount by which the present value of all accrued benefits under each Title IV Plan
exceeds the fair market value of all assets of such Title IV Plan allocable to such benefits in
accordance with Title IV of ERISA, all determined as of the most recent valuation date for each
such Title IV Plan using the actuarial assumptions for funding purposes in effect under such
Title IV Plan, (b) for a period of five (5) years following a transaction which might reasonably
be expected to be covered by Section 4069 of ERISA, the liabilities (whether or not accrued) that
could be avoided by any Credit Party or any ERISA Affiliate as a result of such transaction, and
(c) any similar amount with respect to Foreign Plans.



     “Unrestricted Subsidiary” means any Subsidiary of Borrower designated by a Financial
Officer of Borrower as an Unrestricted Subsidiary pursuant to Section 6.16.



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



     “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part 1 of
Subtitle E of Title IV of ERISA.



     “Working Capital Changes” means Current Assets less Current Liabilities at the end of
the applicable Fiscal Year compared to Current Assets less Current Liabilities at the end of the
previous Fiscal Year.



     1.2 Rules of Construction. Rules of construction with respect to accounting terms
used in this Agreement or the other Loan Documents shall be as set forth in Section 7.10.
All other undefined terms contained in any of the Loan Documents shall, unless the context
indicates otherwise, have the meanings provided for by the Code to the extent the same are used or
defined therein; in the event that any term is defined differently in different Articles or
Divisions of the Code, the definition in Article or Division 9 shall control. Unless otherwise
specified, references in this Agreement or any of the Appendices to a Section, subsection or clause
refer to such Section, subsection or clause as contained in this Agreement. The words “herein”,
“hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole,
including all Annexes, Exhibits and Schedules, as the same may from time to time be amended,
restated, modified or supplemented, and not to any particular section, subsection or clause
contained in this Agreement or any such Annex, Exhibit or Schedule.



     1.3 Interpretive Matters. Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular and the plural, and pronouns
stated in the masculine, feminine or neuter gender shall include the masculine, feminine and



40









 




neuter genders. The words “including”, “includes” and “include” shall be deemed to be
followed by the words “without limitation”; the word “or” is not exclusive; references to Persons
include their respective successors and assigns (to the extent and only to the extent permitted by
the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant
functions of such Persons; and all references to statutes and related regulations shall include any
amendments of the same and any successor statutes and regulations. Whenever any provision in any
Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are
intended to signify that such Credit Party has actual knowledge or awareness of a particular fact
or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have
known or been aware of such fact or circumstance.




2. AMOUNT AND TERMS OF CREDIT




     2.1 Term Facilities.



          (a) Term Loan Facility.




               (i) Subject to the terms and conditions hereof, each Lender agrees to make a term loan
(collectively, the “Term Loans”) on the Closing Date or such other date selected by
Borrower and approved by Agent in its sole discretion. The obligations of each Lender hereunder
shall be several and not joint. If requested by any Lender, each such Term Loan shall be evidenced
by a promissory note substantially in the form of Exhibit 2.1(a)(i) (each a “Term
Note” and collectively the “Term Notes”), and, except as provided in Section
2.10, Borrower shall execute and deliver the Term Note to the applicable Lender. Each Term
Note shall represent the obligation of Borrower to pay the applicable Lender’s Term Loan
Commitment, together with interest thereon as prescribed in Section 2.5.



               (ii) The aggregate outstanding principal balance of the Term Loans shall be due and payable in
full in immediately available funds on the Commitment Termination Date, if not sooner paid in full.
Except for the making of the Term Loans as set forth in Section 2.1(a)(i), Borrower shall
have no right to request and Lenders shall have no obligation to make any additional loans or
advances to Borrower under Section 2.1(a)(i) and any repayments of the Term Loans shall not
be subject to any readvance to or reborrowing by Borrower.



               (iii) [intentionally omitted].



               (iv) The Term Loans of each Lender shall mature and be repaid in consecutive quarterly
installments (each, other than the final such installment, which shall be due on the Commitment
Termination Date, a “Term Loan Installment”), with the first Term Loan Installment due on
the last day of the first full Fiscal Quarter after the Closing Date in an amount equal to (x) the
aggregate principal amount of Term Loan Commitment, multiplied by (y) 0.25%, and with a final
installment due on the Commitment Termination Date in an amount equal to the remaining unpaid
principal balance of the Term Loan. Each such payment shall be allocated to the Lenders based on
their Pro Rata Share.



          (b) Reliance on Notices. Agent shall be entitled to rely upon, and shall be fully
protected in relying upon, any Notice of Conversion/Continuation or similar notice reasonably
believed by Agent to be genuine. Agent may assume that each Person executing and






41









 







delivering any notice in accordance herewith was duly authorized, unless the responsible
individual acting thereon for Agent has actual knowledge to the contrary.




     2.2 Procedure for Term Loan Borrowings. Borrower shall give Agent irrevocable notice
(which notice must be received by Agent prior to 1:00 p.m., New York City time, (i) three Business
Days prior to the anticipated Closing Date, in the case of LIBOR Loans, or (ii) one Business Day
prior to the anticipated Closing Date, in the case of Base Rate Loans) requesting that the Lenders
make the Term Loans on the Closing Date or such other date selected by Borrower pursuant to
Section 2.1(a)(i) and specifying the amount to be borrowed and the Type of Loan. Unless
Agent shall have consented to making LIBOR Loans, the Term Loans made on the Closing Date shall
initially be Base Rate Loans. Upon receipt of such notice, Agent shall promptly notify each Lender
thereof. Not later than 12:00 noon, New York City time, on the Closing Date, each Lender shall
make available to Agent at the funding office set forth on Annex A an amount in immediately
available funds equal to the Term Loan to be made by such Lender. Agent shall credit the account
of Borrower on the books of such office of Agent with the aggregate of the amounts made available
to Agent by the Lenders in immediately available funds.



     2.3 Prepayments.



          (a) Voluntary Prepayments. Borrower may at any time on at least three (3) Business
Days’ prior written notice by Borrower to Agent voluntarily prepay all or part of the Term Loans;
provided, that any such prepayments shall be in an aggregate principal amount of $1,000,000
or a whole multiple thereof. Any voluntary prepayment must be accompanied by the payment of any
LIBOR funding breakage costs in accordance with Section 2.11(b). Each notice of partial
prepayment shall designate the Term Loans or other Obligations to which such prepayment is to be
applied.




          (b) Mandatory Prepayments.




               (i) Until the Termination Date, subject to the Intercreditor Agreement and the exceptions
provided in this clause (i) and Section 2.3(d), within three (3) Business Days of
receipt by any Credit Party of Net Cash Proceeds of any asset Disposition or any casualty or
condemnation event, Borrower shall prepay the Term Loans (such prepayments to be applied in
accordance with and subject to the Intercreditor Agreement) in an amount equal to all such Net Cash
Proceeds. Any such prepayment shall be applied in accordance with Section 2.3(c) and the
Intercreditor Agreement. The following shall not be subject to mandatory prepayment under this
clause (i): (1) proceeds of asset Dispositions in an aggregate amount not to exceed
$3,000,000 per Fiscal Year, (2) proceeds of asset Dispositions pursuant to Section 7.2(v)
and Section 7.8 (other than Sections 7.8(f)-(h), (n), (p),
(s), (t) and (u)) and (3) proceeds that are reinvested within three hundred
sixty-five (365) days following receipt thereof so long as (A) no Event of Default has occurred and
is continuing and (B) such proceeds are reinvested in like assets of Borrower (e.g., Investments
for Investments or Permitted Acquisitions, current assets for current assets, fixed assets for
fixed assets); provided that if a binding commitment to reinvest is entered into within
such period, the reinvestment period shall be extended an additional one hundred eighty (180) days
from the end of such 365 day period; provided, further, that Borrower shall notify
Agent of its intent to reinvest at the time such proceeds are received (provided a failure to



42









 




so notify shall not affect Borrower’s reinvestment rights hereunder) and when such
reinvestment occurs.




               (ii) Subject to the Intercreditor Agreement, if any Credit Party issues any debt securities
other than the Indebtedness permitted by Section 7.3, no later than the Business Day
following the date of receipt of the Net Cash Proceeds thereof, such issuing Credit Party shall
prepay the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds.
Any such prepayment shall be applied in accordance with Section 2.3(c) and the
Intercreditor Agreement.



               (iii) Subject to the Intercreditor Agreement, if any Credit Party issues Non-Qualifying
Preferred Stock after the Closing Date, no later than the Business Day following the date of
receipt of the Net Cash Proceeds thereof, such Credit Party shall prepay the Term Loans in an
amount equal to one hundred percent (100%) of such Net Cash Proceeds. Any such prepayment shall be
applied in accordance with Section 2.3(c) and the Intercreditor Agreement.



               (iv) Subject to the Intercreditor Agreement and the Revolving Loan Credit Agreement,
commencing immediately after the Fiscal Year ending on December 31, 2011 and until the Commitment
Termination Date, on or before the earlier of (x) the date on which annual audited Financial
Statements for the immediately preceding Fiscal Year are required to be delivered pursuant to
Section 5.1 and (y) the date on which such annual Financial Statements are actually
delivered, Borrower shall prepay the Term Loans in an amount equal to (A) fifty percent (50%) of
Excess Cash Flow for the immediately preceding Fiscal Year, minus (B) the aggregate amount
of any voluntary prepayments of the Term Loans and Revolver Loan Obligations (so long as such
repayment results in a corresponding commitment reduction) made during the applicable Fiscal Year
for such Excess Cash Flow calculation; provided, however, if the Total Net Leverage
Ratio as at the end of the relevant Fiscal Year is less than or equal to 2.00 to 1.00 at such time,
then the percentage of Excess Cash Flow required to prepay the Term Loans shall be reduced to
twenty-five percent (25%) of Excess Cash Flow for the immediately preceding Fiscal Year;
provided, further; if the Total Net Leverage Ratio as at the end of the relevant
Fiscal Year is less than or equal to 1.00 to 1.00 at such time, then the amount of Excess Cash Flow
required to prepay the Term Loans shall be reduced to zero for the immediately preceding Fiscal
Year. Any prepayments from Excess Cash Flow paid pursuant to this clause (iv) shall be
allocated to Borrower’s Obligations and shall be applied in accordance with Section 2.3(c)
and the Intercreditor Agreement. Each such prepayment shall be accompanied by a certificate signed
by a Financial Officer of Borrower certifying the manner in which Excess Cash Flow and the
resulting prepayment were calculated, which certificate shall be in form and substance reasonably
satisfactory to Agent.



          (c) Application of Certain Mandatory Prepayments. Subject to the Intercreditor
Agreement, to the extent not required to be applied to prepay Revolver Loan Obligations under the
Revolving Loan Credit Agreement, any prepayments made by Borrower pursuant to Sections
2.3(b)(i), (ii), (iii), or (iv) above shall be applied to the prepayment of the Term
Loans until paid in full. The application of any prepayment pursuant to Section 2.3(b)
shall be made, first, to Base Rate Loans and, second, to LIBOR Rate Loans. Each
prepayment of Term Loans under Section 2.3(b) shall be accompanied by accrued and unpaid
interest to the date of such prepayment on the amount prepaid. Any prepayments of the Term Loans
made by






43









 







or on behalf of Borrower pursuant to Section 2.3(b) shall be applied to reduce the
remaining Term Loan Installments on a pro rata basis.




          (d) With respect to the amount of any mandatory prepayment described in Section 2.3(b)
(the “Prepayment Amount”), other than in connection with a Refinancing (as defined in the
Intercreditor Agreement), Borrower will, in lieu of applying such amount to the prepayment of Term
Loans as provided in paragraph (c) above, on the date specified in Section 2.3 for such
prepayment, give Agent telephonic notice (promptly confirmed in writing) requesting that Agent
prepare and provide to each Lender a notice (each, a “Prepayment Option Notice”) as
described below. As promptly as practicable after receiving such notice from Borrower, Agent will
send to each Lender a Prepayment Option Notice, which shall be substantially in the form of
Exhibit 2.3(b), and shall include an offer by Borrower to prepay on the date (each a
“Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment
Option Notice, the Term Loans of such Lender by an amount equal to the portion of the Prepayment
Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s
Term Loans. Within six (6) Business Days of receipt of a Prepayment Option Notice Lenders shall
notify Agent and Borrower of the amount of such Lender’s prepayment accepted; provided that
if any Lender fails to respond within such period, such Lender shall be deemed to have declined
such prepayment in its entirety. On the Mandatory Prepayment Date, the Prepayment Amount shall be
(i) paid to the relevant Lenders in an aggregate amount necessary to prepay that portion of the
outstanding Term Loans in respect of which such Lenders have accepted prepayment as described
above, (ii) to the extent in excess of the amounts required to be applied pursuant to the preceding
clause (i), reoffered to each other Lender on the same terms as set forth in the Prepayment
Option Notice and if accepted by such Lender within three (3) Business Days of receipt of such
reoffer, paid to such Lender in an aggregate amount necessary to prepay that portion of the
outstanding Term Loans in respect of which such Lender has accepted prepayment and (iii) to the
extent in excess of the amounts required to be applied pursuant to the preceding clauses
(i) and (ii), retained by Borrower.




          (e) No Implied Consent. Nothing in this Section 2.3 shall be construed to
constitute Agent’s or any Lender’s consent to any transaction that is not permitted by other
provisions of this Agreement or the other Loan Documents.




          (f) Limitations on Payments. All prepayments referred to in Section 2.3(b)(i)
above are subject to permissibility under (i) applicable local law (e.g., financial assistance,
corporate benefit, restrictions on upstreaming of cash intra-group and the fiduciary and statutory
duties of the directors of the relevant Subsidiaries) and (ii) material constituent document
restrictions existing as of the Closing Date (including as a result of minority ownership). There
will be no requirement to make any prepayment under Section 2.3(b)(i) if Borrower and its
Subsidiaries or any of their Affiliates provide reasonable evidence to Agent and Lenders that it
would incur a material tax liability, including a deemed dividend pursuant to Section 956 of the
IRC; provided, further, that utilization of the net operating losses of Borrower
and its Subsidiaries shall be excluded from Borrower’s determination of whether such prepayment
would result in material adverse tax liabilities to Borrower or any of its Subsidiaries. The
non-application of any prepayment amounts as a consequence of the foregoing provisions shall not,
for the avoidance of doubt, constitute an Event of Default under Section 9.1(a), and such
amounts shall be available for working capital purposes of Borrower and its Subsidiaries, subject






44









 







to the terms and conditions of this Agreement, so long as such amounts are not required to be
prepaid in accordance with the following provisions. Borrower and its Subsidiaries shall use
commercially reasonable efforts to reduce or eliminate the foregoing restrictions and/or minimize
any such costs of prepayment and/or use the other cash resources of Borrower and its Subsidiaries
(subject to the considerations above) to make the relevant payment; provided,
however, such efforts shall not include the application or use of net operating losses of
Borrower and its Subsidiaries. If at any time within one year of a required prepayment date that
is excused under this Section 2.3(f), such restrictions are removed, any relevant proceeds
will be applied in prepayment of the Term Loan. Notwithstanding the foregoing, any prepayments
required after application of the above provision shall be net of any costs, expenses or taxes
incurred by Borrower and its Subsidiaries or any of its Affiliates arising solely as a result of
compliance with the preceding sentence, and Borrower and its Subsidiaries shall be permitted to
make, directly or indirectly, a dividend or distribution to its Affiliates in an amount sufficient
to cover such tax liability, costs or expenses.




     2.4 Use of Proceeds. Borrower shall utilize the proceeds of the Term Loans for the
payment of fees, costs and expenses related to the Chapter 11 Cases and the Related Transactions,
repayment of certain Indebtedness (including, without limitation, the Prior Lender Obligations) and
the financing of Borrower’s general corporate purposes. Schedule (2.4) contains a
description of Borrower’s sources and uses of funds as of the Closing Date, including Term Loans to
be made on that date, and a funds flow memorandum detailing how funds from each source are to be
transferred to particular uses.



     2.5 Interest and Applicable Margins.



          (a) Borrower shall pay interest to Agent, for the ratable benefit of Lenders in accordance
with the Term Loans being made by each Lender, in arrears on each applicable Interest Payment Date,
at the rate of the Base Rate plus the Applicable Term Loan Base Margin per annum or, at the
election of Borrower, the applicable LIBOR Rate plus the Applicable Term Loan LIBOR Margin
per annum.




     The Applicable Term Loan Base Margin and the Applicable Term Loan LIBOR Margin shall be as
follows:



	 	 	 	 	 

	Applicable Term Loan Base Margin
	 	 	5.25	%
	 
	 	 	 	 
	Applicable Term Loan LIBOR Margin
	 	 	6.25	%






          (b) If any payment on the Term Loans becomes due and payable on a day other than a Business
Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth
in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon
shall be payable at the then applicable rate during such extension.




          (c) All computations of Fees calculated on a per annum basis and interest shall be made by
Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the
period for which such interest and Fees are payable, except that with respect to Base Rate Loans
based on the prime or base commercial lending rate the interest






45









 







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 Base Rate is a floating rate determined for each day. Each
determination by Agent of an interest rate and Fees hereunder shall be presumptive evidence of the
correctness of such rates and Fees.




          (d) So long as an Event of Default has occurred and is continuing under Sections 9.1
(a), (k), or (l) or any Event of Default under Section 9.1(b) solely
with respect to Section 7.10, the interest rates applicable to the Term Loans shall
automatically be increased by two percentage points (2.00%) per annum above the rates of interest
otherwise applicable hereunder unless Agent and Requisite Lenders elect to waive such increase or
impose a smaller increase (the “Default Rate”), and all outstanding Obligations shall bear
interest at the Default Rate applicable to such Obligations. Interest at the Default Rate shall
accrue from the initial date of such Event of Default and for so long as such Event of Default is
continuing and shall be payable upon demand.




          (e) Subject to the conditions precedent set forth in Section 3.2, Borrower shall have
the option to (i) convert at any time all or any part of outstanding Term Loans from Base Rate
Loans to LIBOR Loans, (ii) convert any LIBOR Loan to a Base Rate Loan and subject to payment of
LIBOR breakage costs in accordance with Section 2.11(b) if such conversion is made prior to
the expiration of the LIBOR Period applicable thereto, or (iii) continue all or any portion of the
Term Loans as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding
LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR
Period of the Loan to be continued; provided, however, that no Term Loan shall be
converted to, or continued at the end of the LIBOR Period applicable thereto as a LIBOR Loan for a
LIBOR Period of longer than one (1) month if any Event of Default has occurred and is continuing.
Any Term Loans having the same proposed LIBOR Period to be made or continued as, or converted into,
a LIBOR Loan must be in a minimum amount of $5,000,000 and integral multiples of $1,000,000 in
excess of such amount. Any such election must be made by 11:00 a.m. (New York time) on the third
Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR
Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or
(3) the date on which Borrower wishes to convert any Base Rate Loan to a LIBOR Loan for a LIBOR
Period designated by Borrower in such election. If no election is received with respect to a LIBOR
Loan by 11:00 a.m. (New York time) on the third Business Day prior to the end of the LIBOR Period
with respect thereto (or if an Event of Default has occurred and is continuing or if the additional
conditions precedent set forth in Section 3.2 shall not have been satisfied), that LIBOR
Loan shall be converted to a LIBOR Loan with a LIBOR Period of one (1) month at the end of its
LIBOR Period. Borrower must make such election by notice to Agent in writing, by telecopy or
overnight courier. In the case of any conversion or continuation, such election must be made
pursuant to a written notice (a “Notice of Conversion/Continuation”) in the form of
Exhibit 2.5(e).




          (f) Anything herein to the contrary notwithstanding, the obligations of Borrower hereunder
shall be subject to the limitation that payments of interest shall not be required, for any period
for which interest is computed hereunder, to the extent (but only to the extent) that contracting
for or receiving such payment by the respective Lender would be contrary to the provisions of any
law applicable to such Lender limiting the highest rate of






46









 







interest which may be lawfully contracted for, charged or received by such Lender, and in such
event Borrower shall pay such Lender interest at the highest rate permitted by applicable law (the
“Maximum Lawful Rate”); provided, however, that if at any time thereafter
the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall
continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest
received by Agent, on behalf of Lenders, is equal to the total interest that would have been
received had the interest rate payable hereunder been (but for the operation of this paragraph) the
interest rate payable since the Closing Date as otherwise provided in this Agreement. Thereafter,
interest hereunder shall be paid at the rate(s) of interest and in the manner provided in
Sections 2.5(a) through (e), unless and until the rate of interest again exceeds
the Maximum Lawful Rate, and at that time this paragraph shall again apply. In no event shall the
total interest received by any Lender pursuant to the terms hereof exceed the amount that such
Lender could lawfully have received had the interest due hereunder been calculated for the full
term hereof at the Maximum Lawful Rate. If the Maximum Lawful Rate is calculated pursuant to this
paragraph, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate
divided by the number of days in the year in which such calculation is made. If, notwithstanding
the provisions of this Section 2.5(f), a court of competent jurisdiction shall finally
determine that a Lender has received interest hereunder in excess of the Maximum Lawful Rate, Agent
shall, to the extent permitted by applicable law, promptly apply such excess in the order specified
in Section 2.9 and thereafter shall refund any excess to Borrower or as a court of
competent jurisdiction may otherwise order.




     2.6 Cash Management. Upon the delivery of any deposit account control agreement (or
other similar cash management agreement) pursuant to the Revolving Loan Credit Agreement, Borrower
shall deliver to Agent a corresponding deposit account control agreement, covering the same
accounts as the deposit account control agreement delivered pursuant to the Revolving Loan Credit
Agreement, sufficient to establish in favor of Agent, for the benefit of the Secured Parties (as
defined in the Security Agreement), a Lien having the priority set forth in the Intercreditor
Agreement in such accounts and otherwise in form and substance reasonably satisfactory to Agent.



     2.7 Fees. Borrower shall pay to MSSF, individually, the Fees specified in the Fee
Letter at the times specified for payment therein.



     2.8 Receipt of Payments. Borrower shall make each payment under this Agreement not
later than 2:00 p.m. (New York time) on the day when due in immediately available funds in Dollars
to the Collection Account. For purposes of computing interest and Fees, all payments shall be
deemed received on the Business Day on which immediately available funds are received in the
Collection Account prior to 2:00 p.m. (New York time). Payments received after 2:00 p.m. (New York
time) on any Business Day or on a day that is not a Business Day shall be deemed to have been
received on the following Business Day. Unless stated otherwise, all calculations, comparisons,
measurements or determinations under this Agreement shall be made in Dollars. If Agent receives
any payment from or on behalf of any Credit Party in a currency other than the currency in which
such Obligation is denominated, Agent may convert the payment (including the monetary proceeds of
realization upon any Collateral and any funds then held in a cash collateral account) into the
currency of the relevant Obligation at the exchange rate that Agent would be prepared to sell the
currency in which the relevant Obligation is



47









 




denominated against the currency received on the Business Day immediately preceding the date
of actual payment. The Obligations shall be satisfied only to the extent of the amount actually
received by Agent upon such conversion.




     2.9 Application and Allocation of Payments. Subject to the terms of the Intercreditor
Agreement and to the extent not required to be used to prepay Revolver Loan Obligations under the
Revolving Loan Credit Agreement, so long as no Event of Default has occurred and is continuing, (i)
payments of regularly scheduled payments then due shall be applied to those scheduled payments and
(ii) all mandatory prepayments shall be applied as set forth in Sections 2.3(c). All
payments and prepayments applied to the Term Loans shall be applied ratably to the portion thereof
held by each Lender as determined by its Pro Rata Share. As to any other mandatory payment, and as
to all payments made when an Event of Default has occurred and is continuing or following the
Commitment Termination Date, Borrower hereby irrevocably waives the right to direct the application
of any and all payments received from or on behalf of Borrower. All voluntary prepayments shall be
applied as directed by Borrower. In all circumstances, subject to the Intercreditor Agreement,
after the occurrence and during the continuation of an Event of Default, all payments and proceeds of Collateral shall be
applied to amounts then due and payable in the following order: (i) to Fees and Agent’s expenses
reimbursable hereunder; (ii) to interest on the Term Loans and the Secured Hedge Obligations,
ratably in proportion to the interest accrued as to each Loan and Secured Hedge Obligation;
(iii) to the outstanding Term Loans and the Secured Hedge Obligations, ratably in proportion to the
principal balance of each Loan and each Secured Hedge Obligation; and (iv) to all other
Obligations, including expenses of Lenders to the extent reimbursable under Section 12.3.



     2.10 Loan Account and Accounting. Agent shall maintain a loan account (the “Loan
Account”) on its books and records: the Term Loans, all payments made by Borrower, and all
other debits and credits as provided in this Agreement with respect to the Term Loans or any other
Obligations. All entries in the Loan Account shall be made in accordance with Agent’s customary
accounting practices as in effect from time to time. The balance in the Loan Account, as recorded
on Agent’s most recent printout or other written statement, shall, absent manifest error, be
presumptive evidence of the amounts due and owing to Agent and Lenders by Borrower;
provided that any failure to so record or any error in so recording shall not limit or
otherwise affect Borrower’s duty to pay the Obligations. Agent shall render to Borrower a monthly
accounting of transactions with respect to the Term Loans setting forth the balance of the Loan
Account as to Borrower for the immediately preceding month. Unless Borrower notifies Agent in
writing of any objection to any such accounting (specifically describing the basis for such
objection), within sixty (60) days after the date thereof, each and every such accounting shall be
deemed presumptive evidence of all matters reflected therein. Only those items expressly objected
to in such notice shall be deemed to be disputed by Borrower. Notwithstanding any provision herein
contained to the contrary, any Lender may elect (which election may be revoked) to dispense with
the issuance of Term Notes to that Lender and may rely on the Loan Account as evidence of the
amount of Obligations from time to time owing to it.




48









 





     2.11 Indemnity.



          (a) Each Credit Party that is a signatory hereto shall jointly and severally indemnify and
hold harmless each of Agent, Collateral Agent, Lenders and their respective Affiliates, and each
such Person’s respective officers, directors, employees, attorneys, agents and representatives
(each, an “Indemnified Person”), from and against any and all suits, actions, proceedings,
claims, damages, actual losses, liabilities and out-of-pocket expenses (including reasonable
attorneys’ fees and disbursements and other reasonable documented out-of-pocket costs of
investigation or defense, including those incurred upon any appeal) that may be instituted or
asserted against or incurred by any such Indemnified Person as the result of credit having been
extended, suspended or terminated under this Agreement and the other Loan Documents and the
administration of such credit, and in connection with or arising out of the transactions
contemplated hereunder and thereunder and any actions or failures to act in connection therewith,
including any and all Environmental Liabilities and legal costs and expenses arising out of or
incurred in connection with disputes between or among any parties to any of the Loan Documents
(collectively, “Indemnified Liabilities”); provided that no such Credit Party shall
be liable for any indemnification to an Indemnified Person to the extent that any such suit,
action, proceeding, claim, damage, actual loss, liability or expense results from that Indemnified
Person’s gross negligence, bad faith or willful misconduct as determined by a court of competent
jurisdiction in a final and non-appealable judgment; provided, further, that no
Indemnified Person will be indemnified for any such cost, expense or liability to the extent of any
dispute solely among Indemnified Persons other than claims against Agent or Collateral Agent, in
such capacity in connection with fulfilling any such roles. In the absence of an actual conflict
of interest, or in the written opinion of counsel a potential conflict of interest, Borrower and
its Subsidiaries will not be responsible for the fees and expenses of more than one legal counsel
for all Indemnified Persons and appropriate local legal counsel; provided, that in the case
of an actual conflict of interest, or the written opinion of counsel that a potential conflict of
interest exists, Borrower and its Subsidiaries shall be responsible for one additional counsel in
each applicable jurisdiction for the affected Indemnified Parties, taken as a whole. No party
hereto shall be responsible or liable to any other Person party to any Loan Document, any
successor, assignee or third party beneficiary of such person or any other person asserting claims
derivatively through such Party, for indirect, punitive, exemplary or consequential damages which
may be alleged as a result of credit having been extended, suspended or terminated under any Loan
Document or as a result of any other transaction contemplated hereunder or thereunder.




          (b) To induce Lenders to provide the LIBOR Rate option on the terms provided herein, if
(i) any LIBOR Loans are repaid in whole or in part prior to the last day of any applicable LIBOR
Period (whether that repayment is made pursuant to any provision of this Agreement or any other
Loan Document or occurs as a result of acceleration, by operation of law or otherwise); (ii)
Borrower shall default in payment when due of the principal amount of or interest on any LIBOR
Loan; (iii) Borrower shall refuse to accept any borrowing of, or shall request a termination of,
any borrowing of, conversion into or continuation of, LIBOR Loans after Borrower has given notice
requesting the same in accordance herewith; (iv) Borrower shall fail to make any prepayment of a
LIBOR Loan after Borrower has given a notice thereof in accordance herewith; or (v) an assignment
of LIBOR Loans is mandated pursuant to Sections 2.14(d) or 12.2(d), then Borrower
shall jointly and severally indemnify and hold harmless each Lender from and against all actual
losses, costs and reasonable documented out-of-pocket expenses resulting from or arising from any
of the foregoing. Such indemnification shall include any actual and documented out-of-pocket loss
or expense (other than loss of anticipated profits),






49









 







if any, arising from the reemployment of funds obtained by it or from fees payable to
terminate deposits from which such funds were obtained. For the purpose of calculating amounts
payable to a Lender under this subsection, each Lender shall be deemed to have actually funded its
relevant LIBOR Loan through the purchase of a deposit bearing interest at the LIBOR Rate in an
amount equal to the amount of that LIBOR Loan and having a maturity comparable to the relevant
LIBOR Period; provided that each Lender may fund each of its LIBOR Loans in any manner it
sees fit, and the foregoing assumption shall be utilized only for the calculation of amounts
payable under this subsection. This covenant shall survive the termination of this Agreement and
the payment of the Obligations and all other amounts payable hereunder. As promptly as practicable
under the circumstances, each Lender shall provide Borrower with its written and detailed
calculation of all amounts payable pursuant to this Section 2.11(b), and such calculation
shall be binding on the parties hereto unless Borrower shall object in writing within ten (10)
Business Days of receipt thereof, specifying the basis for such objection in detail.




     2.12 Access. Each Credit Party that is a party hereto shall, during normal business
hours, from time to time upon reasonable notice as frequently as Agent reasonably determines to be
appropriate: (a) provide Agent, Collateral Agent, Lenders (coordinated through Agent) and any of
their representatives and designees access to its properties, facilities, advisors, officers and
employees of each Credit Party and to the Collateral, (b) permit Agent, Collateral Agent, Lenders
and any of their officers, employees and agents, to inspect, audit and make extracts from any
Credit Party’s books and records, and (c) permit Agent, Collateral Agent, Lenders and their
representatives and designees, to inspect, review and evaluate the Collateral of any Credit Party;
provided, that to the extent that no Event of Default has occurred, Borrower shall only be
responsible for the costs of one such visit per Fiscal Year. Furthermore, so long as any Event of
Default has occurred and is continuing under Sections 9.1(k) or (l) or at any time
after all or any portion of the Obligations have been declared due and payable pursuant to
Section 9.2(b), Borrower shall provide reasonable assistance to Agent to obtain access,
which access shall be coordinated in scope and substance in consultation with Borrower, to their
suppliers and customers. Each Credit Party (i) shall be available to discuss the business,
operations, properties and financial and other condition of the Group Members with officers and
employees of the Group Members (so long as senior management of Borrower is notified of any such
discussion and is permitted to be present) and (ii) agrees to use commercially reasonable efforts
to assist Agent in obtaining reasonable access, which access shall be coordinated in scope and
substance in consultation with Borrower, to its independent certified public accountants and
financial advisors.



     2.13 Taxes.



          (a) All payments by each Credit Party hereunder, under the Term Notes or under any other Loan
Document will be made without setoff, counterclaim or defense. Any and all payments by each Credit
Party hereunder (including any payments made pursuant to Section 13), under the Term Notes or under
any other Loan Document shall be made, in accordance with this Section 2.13, free and clear
of and without deduction for any and all present or future Taxes. If any Credit Party shall be
required by law to deduct any Taxes from or in respect of any sum payable hereunder (including any
payments made pursuant to Section 13) or under the Term Notes, (i) the sum payable shall be
increased as much as shall be necessary so that, after making all required withholdings and
deductions (including withholdings and deductions applicable to






50









 







additional sums payable under this Section 2.13), Agent or Lenders, as applicable,
receive an amount equal to the sum they would have received had no such withholdings and deductions
been made, (ii) such Credit Party shall make such withholdings and deductions, and (iii) such
Credit Party shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law. Within thirty (30) days after the date of any such payment of
Taxes, Borrower shall furnish to Agent the original or a certified copy of a receipt evidencing
payment thereof.




          (b) In addition, each Credit Party agrees to pay any present or future stamp, recording or
documentary taxes or any other excise or property taxes, charges or similar levies that arise from
any payment made under this Agreement or under any other Loan Document or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the other Loan Documents
and any other agreements and instruments contemplated hereby or thereby (“Other Taxes”).
Each Lender agrees that, as promptly as reasonably practicable after it becomes aware of any
circumstances referred to above which would result in additional payments under this Section
2.13, it shall notify Borrower thereof.




          (c) Each Credit Party that is a signatory hereto shall jointly and severally indemnify and,
within ten (10) days of demand therefor, pay Agent and each Lender for the full amount of Taxes and
Other Taxes (including, any Taxes imposed by any jurisdiction on amounts payable under this
Section 2.13) paid by (or on behalf of) Agent or such Lender as a result of payments made
pursuant to this Agreement, as appropriate, and any liability (including, penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes were correctly or
legally asserted; provided, however, that no Credit Party shall be required to
compensate Agent or any Lender for any Taxes or Other Taxes incurred more than one hundred eighty
(180) days prior to the date that such Agent or Lender notifies Borrower of such Taxes or Other
Taxes and of such Agent or Lender’s intention to claim compensation therefore; provided,
further, however that if the circumstances giving rise to such Taxes or Other Taxes
are retroactive, then the 180 day period referred to above shall be extended to include the period
of retroactive effect thereof. A certificate as to the amount of such Taxes and evidence of
payment thereof submitted to the Credit Parties shall be prima facie evidence, absent manifest
error, of the amount due from the Credit Parties to Agent or such Lenders. Upon actually learning
of the imposition of Taxes, Agent or Lender, as the case may be, shall act in good faith to notify
Borrower of the imposition of such Taxes arising hereunder.




          (d) Each Lender and the successors and assignees of such Lender, that is a “United States
person” within the meaning of section 7701(a)(30) of the IRC and not an exempt recipient (as
defined in Treasury Regulation Section 1.6049-4(c)) shall deliver to Borrower (with a copy to
Agent) a properly completed and executed IRS Form W-9 or such other documentation or information
prescribed by applicable law or reasonably requested by Agent and Borrower to determine whether
such Lender is subject to backup withholding or information reporting requirements. Each Lender,
and the successors and assignees of such Lender, organized under the laws of a jurisdiction outside
of the United States (“Foreign Lender”) to whom payments to be made under this Agreement or
under the Term Notes may be exempt from, or eligible for a reduced rate of, United States
withholding tax (as applicable) under the law of the jurisdiction in which Borrower is located or
under any tax treaty to which such jurisdiction is a party shall, at the time or times prescribed
by applicable law, provide to Borrower (with a copy to Agent) a






51









 







properly completed and executed IRS Form W-8ECI or Form W-8BEN or other applicable form,
certificate or document prescribed by the IRS or the United States.




          (e) If any of Agent or any Lender, as applicable, determines, in its sole discretion, that it
has received a refund of any Taxes as to which it has been indemnified by any Credit Party or with
respect to which any Credit Party has paid additional amounts pursuant to this Section
2.13, it shall pay over such refund to such Credit Party (but only to the extent of indemnity
payments made, or additional amounts paid, by such Credit Party under this Section 2.13
with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of such
Agent or Lender and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund).




          (f) The provisions of this Section 2.13 shall survive the termination of this
Agreement and repayment of all Obligations.




     2.14 Capital Adequacy; Increased Costs; Illegality.



          (a) If any Lender shall have determined that any law, treaty, governmental (or
quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, reserve
requirements or similar requirements or compliance by any Lender with any request or directive
regarding capital adequacy, reserve requirements or similar requirements (whether or not having the
force of law), in each case, adopted after the Closing Date, from any central bank or other
Governmental Authority increases or would have the effect of increasing the amount of capital,
reserves or other funds required to be maintained by such Lender and thereby reducing the rate of
return on such Lender’s capital as a consequence of its obligations hereunder, then Borrower shall
from time to time upon demand by such Lender (with a copy of such demand to Agent) pay to Agent,
for the account of such Lender, additional amounts sufficient to compensate such Lender for such
reduction. A certificate as to the amount of that reduction and showing the basis of the
computation thereof submitted by such Lender to Borrower and to Agent shall, absent manifest error,
be final, conclusive and binding for all purposes.




          (b) If, due to either (i) the introduction of or any change in any law or regulation (or any
change in the interpretation thereof) or (ii) the compliance with any guideline or request from any
central bank or other Governmental Authority (whether or not having the force of law), in each case
adopted after the Closing Date, there shall be any increase in the cost to any Lender of agreeing
to make or making, funding or maintaining the Term Loan, then Borrower shall from time to time,
upon demand by such Lender (with a copy of such demand to Agent), pay to Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such increased cost. A
certificate as to the amount of such increased cost, submitted to Borrower and to Agent by such
Lender, shall, absent manifest error, be final, conclusive and binding for all purposes. Each
Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred
to above which would result in any such increased cost, the affected Lender shall, to the extent
not inconsistent with such Lender’s internal policies of general application, use reasonable
commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrower
pursuant to this Section 2.14(b).







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          (c) Notwithstanding anything to the contrary contained herein, if the introduction of or any
change in any law or regulation (or any change in the interpretation thereof) shall make it
unlawful, or any central bank or other Governmental Authority shall assert that it is unlawful, for
any Lender to agree to make or to make or to continue to fund or maintain any LIBOR Loan, then,
unless that Lender is able to make or to continue to fund or to maintain such LIBOR Loan at another
branch or office of that Lender without, in that Lender’s reasonable opinion, materially adversely
affecting it or its Term Loans or the income obtained therefrom, on notice thereof and demand
therefor by such Lender to Borrower through Agent, (i) the obligation of such Lender to agree to
make or to make or to continue to fund or maintain LIBOR Loans shall terminate and (ii) Borrower
shall forthwith prepay in full all outstanding LIBOR Loans owing by Borrower to such Lender,
together with interest accrued thereon, unless Borrower, within five (5) Business Days after the
delivery of such notice and demand, converts all LIBOR Loans into Base Rate Loans. The Dodd-Frank
Wall Street Reform and Consumer Protection Act and all requests, guidelines or directives in
connection therewith (collectively, the “Dodd-Frank Act”) are deemed to have been adopted
and gone into effect after the date of this Agreement to the extent necessary to provide Lenders
with the benefit of this Section 2.14 with respect to any “change in law or regulation”
resulting from the Dodd-Frank Act.




          (d) Within thirty (30) days after receipt by Borrower of written notice and demand from any
Lender (an “Affected Lender”) for payment of additional amounts or increased costs as
provided in Sections 2.13(a), 2.14(a) or 2.14(b), Borrower may, at its
option, notify Agent and such Affected Lender of its intention to replace the Affected Lender. So
long as no Event of Default has occurred and is continuing, Borrower, with the consent of Agent,
may obtain, at Borrower’s expense, a replacement Lender (“Replacement Lender”) for the
Affected Lender, which Replacement Lender must be reasonably satisfactory to Agent. If Borrower
obtains a Replacement Lender within ninety (90) days following notice of its intention to do so,
the Affected Lender must sell and assign its Term Loans and Commitments to such Replacement Lender
for an amount equal to the principal balance of all Term Loans held by the Affected Lender and all
accrued interest and Fees with respect thereto through the date of such sale and such assignment
shall not require the payment of an assignment fee to Agent; provided, that Borrower shall
have reimbursed such Affected Lender for the additional amounts or increased costs that it is
entitled to receive under this Agreement through the date of such sale and assignment.
Notwithstanding the foregoing, Borrower shall not have the right to obtain a Replacement Lender if
the Affected Lender rescinds its demand for increased costs or additional amounts within 15 days
following its receipt of Borrower’s notice of intention to replace such Affected Lender.
Furthermore, if Borrower gives a notice of intention to replace and does not so replace such
Affected Lender within ninety (90) days thereafter, Borrower’s rights under this Section
2.14(d) shall terminate with respect to such Affected Lender for such request for additional
amounts or increased costs and Borrower shall promptly pay all increased costs or additional
amounts demanded by such Affected Lender pursuant to Sections 2.13(a), 2.14(a) and
2.14(b). An exercise of Borrower’s option under this Section 2.14(d) shall not
suspend Borrower’s obligation to pay such increased costs or additional amounts demanded by such
Affected Lender pursuant to Sections 2.13(a), 2.14(a) and 2.14(b) until
such Affected Lender is replaced.







53









 








     2.15 Single Loan. All Term Loans to Borrower and all of the other Obligations of
Borrower arising under this Agreement and the other Loan Documents shall constitute one general
obligation of Borrower secured, until the Termination Date, by all of the Collateral.



     2.16 Incremental Term Loans.



          (a) Borrower may on any date on or after the date that is 90 days following the Closing Date,
by notice to Agent (whereupon Agent shall promptly deliver a copy to each of the Lenders), increase
the Term Loans hereunder with incremental term loans (the “Incremental Term Loans”) in an
amount not to exceed $100,000,000; provided that at the time of the effectiveness of any
Incremental Term Loan Amendment referred to below, (a) no Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the extensions of credit to be
made on such date, (b) each of the representations and warranties made by any Credit Party in or
pursuant to the Loan Documents shall be true and correct in all material respects on and as of such
date as if made on and as of such date (except where such representations and warranties expressly
relate to an earlier date, in which case such representations and warranties shall have been true
and correct in all material respects as of such earlier date) and (c) Agent shall have received a
certificate to that effect dated such date and executed by a Financial Officer of Borrower.
Incremental Term Loans may be made by any existing Lender or by any other financial institution or
any fund that regularly invests in bank loans selected by Borrower (any such other financial
institution or fund being called an “Incremental Lender”); provided that Agent shall have
consented (such consent not to be unreasonably withheld) to such Lender’s or Incremental Lender’s
making such Incremental Term Loans if such consent would be required under Section 11.1 for
an assignment of Term Loans to such Lender or Incremental Lender. No consent of the Lenders shall
be required (other than the Lenders providing such Incremental Term Loans). Commitments in respect
of Incremental Term Loans shall be made pursuant to an amendment (an “Incremental Term Loan
Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by
Borrower, each Lender agreeing to provide such Incremental Term Loans, if any, each Incremental
Lender, if any, and Agent. Any Incremental Term Loans made hereunder shall be deemed “Term Loans”
hereunder and shall be subject to the same terms and conditions applicable to the existing Term
Loans. No Lender shall be obligated to provide any Incremental Term Loans, unless it so agrees.




          (b) Notwithstanding anything to the contrary contained herein, any Incremental Term Loans
shall be subject to the same terms as the existing Term Loans (including voluntary and mandatory
prepayment provisions), except that, unless such Incremental Term Loans are made a part of the Term
Loans (in which case all terms thereof shall be identical to those of the Term Loans), provided
that (a) the “effective margin” applicable to the respective Incremental Term Loans (which, for
such purposes only, shall be deemed to include all upfront or similar fees or original issue
discount (amortized over the shorter of (1) the weighted average life to maturity of such
Incremental Term Loans and (2) four years) payable to all Lenders providing such Incremental Term
Loans or the imposition of an interest rate floor, but exclusive of any arrangement, structuring or
other fees payable in connection therewith that are not shared with all Lenders providing such
Incremental Term Loans) determined as of the initial funding date for such Incremental Term Loans,
may exceed the “effective margin” applicable to any Term Loans or any other Incremental Term Loans
(determined on the same






54









 







basis as provided in the preceding parenthetical) by up to 0.50% per annum (after giving
effect to any Incremental Facility Yield Adjustment), (b) the final stated maturity date for such
Incremental Term Loans may be later (but not sooner) than the Commitment Termination Date, (c) the
amortization requirements for such Incremental Term Loans may differ, so long as the average
weighted life to maturity of such Incremental Term Loans is no shorter than the average weighted
life to maturity applicable to the then outstanding Term Loans, (d) other than as set forth in
clause (a) above, any minimum LIBOR Rate or Base Rate applicable to such Incremental Term Loans may
exceed the minimum LIBOR Rate and Base Rate applicable to the outstanding Term Loans if such
minimum LIBOR Rate and/or Base Rate applicable to all then outstanding Term Loans is increased to
match such minimum LIBOR Rate and/or Base Rate applicable to such Incremental Term Loans, (e)
Incremental Term Loans may rank junior in right of security/priority in the Collateral with the
other Term Loans made on the Closing Date or be unsecured, in which case, the Incremental Term
Loans will be established as a separate facility from the then existing Term Loans and (f) other
terms may differ if reasonably satisfactory to Agent, Borrower and solely the Lenders providing
such Incremental Term Loans.




          (c) If the existing Lenders are unwilling to increase their applicable Commitments by an
amount equal to the requested Incremental Term Loans, Agent, in consultation with Borrower, will
use its commercially reasonable efforts to obtain one or more financial institutions which are not
then Lenders (which financial institution may be suggested by Borrower) to become party to this
Agreement and to provide the requested Incremental Term Loans; provided, however,
compensation for any such assistance by Agent shall be mutually agreed by Agent and Borrower.




3. CONDITIONS PRECEDENT




     3.1 Conditions to the Term Loans. No Lender shall be obligated to make the Term Loans
on the Closing Date, or to take, fulfill, or perform any other action hereunder, until the
following conditions have been satisfied or provided for in a manner reasonably satisfactory to
Agent, or waived in writing by Agent and Lenders:



          (a) Credit Agreement; Loan Documents. The following documents shall have been duly
executed by Borrower, each other Credit Party, Agent, Collateral Agent and Lenders; and Agent shall
have received such documents, instruments and agreements, each in form and substance reasonably
satisfactory to Agent:




               (i) Credit Agreement. Duly executed originals of this Agreement, dated the Closing
Date, and all Annexes, Exhibits and Schedules hereto.



               (ii) Term Notes. If requested by Lenders, duly executed originals of the Term Loan
Notes for each applicable Lender, dated the Closing Date.



               (iii) Security Agreement. Duly executed originals of the Security Agreement, dated
the Closing Date, and all instruments, documents and agreements required to be executed pursuant
thereto.



               (iv) Intercreditor Agreement. Duly executed originals of the Intercreditor Agreement,
dated the Closing Date.



55









 





               (v) Subsidiary Guaranty. Duly executed originals of the Subsidiary Guaranty, dated
the Closing Date, and all instruments, documents and agreements required to be executed pursuant
thereto.



               (vi) Insurance. Satisfactory evidence that the insurance policies required by
Section 6.4 are in full force and effect, together with appropriate evidence showing loss
payable and/or additional insured clauses or endorsements, as reasonably requested by Agent, in
favor of Agent, on behalf of Lenders.



               (vii) Lien, Tax and Judgment Searches. Agent shall have received the result of recent
lien, tax and judgment searches in each of the jurisdictions reasonably requested by it and such
lien searches shall reveal no liens on any of the assets of the Credit Parties, other than liens
permitted hereby, liens to be terminated in connection with the Group Members’ exit from bankruptcy
and liens acceptable to Agent in its sole discretion.



               (viii) Filings, Registrations and Recordings. Agent shall have received each document
(including, without limitation, any Code financing statement authorized for filing under the Code)
reasonably requested by Agent to be filed, registered or recorded in order to create in favor of
Agent, for the benefit of the Lenders and other Secured Parties (as defined in the Security
Agreement), a first priority (or second priority, with respect to the Revolver Priority Collateral)
perfected Lien on the Collateral described therein and authorization for filing, registering or
recording each such document (including, without limitation, any Code financing statement
authorized for filing under the Code).



               (ix) Aircraft Mortgage and Security Agreement and Related Documents. (A) Duly
executed originals of the Aircraft Mortgage and Security Agreement, dated the Closing Date,
together with all instruments, documents and agreements executed pursuant thereto, (B) a letter of
undertaking and a certificate of insurance relating to the Aircraft, (C) if possible, evidence of
back to birth title trace for the Aircraft including the Engines, (D) evidence in the State of
Registration confirming, among other things that the Aircraft is registered in the name of a Credit
Party and is free of all recorded Liens on the Closing Date and the Aircraft Mortgage and Security
Agreement has been registered on the FAA’s register), together with copies of the current
Certificate of Registration, Certificate of Airworthiness and all other licenses required by FAA in
respect of the Aircraft, (E) a legal opinion covering FAA and International Registry filings, (F)
evidence that arrangements for the due and timely effecting of all recordings, filings and
registrations required by (1) the FAA and (2) any governmental authority, including, without
limitation, filing of the Aircraft Mortgage and Security Agreement at the International Registry,
have been duly put in place, (G) evidence that arrangements for any assignment of Manufacturer
Warranties have been duly put into place, and (H) evidence of release of any existing Liens over
the Aircraft, each in form and substance reasonably satisfactory to Agent.



               (x) Intellectual Property Security Agreement. Duly executed originals of the
Intellectual Property Security Agreement, dated the Closing Date, in form and substance reasonably
satisfactory to Agent, together with all instruments, documents and agreements executed pursuant
thereto.



56









 





               (xi) Mortgages. A duly executed original Mortgage for each Mortgaged Property, dated
the Closing Date, in form and substance reasonably satisfactory to Agent, together with:



                    (a) environmental audits;



                    (b) mortgage title insurance commitments for adequately protected and fully-paid valid title
insurance with endorsements and in amounts acceptable to Agent in its Permitted Discretion,
insuring that Agent, for the benefit of the Secured Parties (as defined in the Security Agreement),
shall have a perfected second priority Lien on such real property, evidence of which shall have
been provided in form and substance reasonably acceptable to Agent (“Title Insurance”);



                    (c) (i) if reasonably required by Agent, an ALTA survey has been delivered for which all
necessary fees have been paid and which is dated no more than 30 days prior to the date on which
the applicable Mortgage is recorded, certified to Agent and the issuer of the title insurance
policy in a manner reasonably satisfactory to Agent by a land surveyor duly registered and licensed
in the state in which such Real Estate is located and acceptable to Agent, and shows all buildings
and other improvements, any offsite improvements, the location of any easements, parking spaces,
rights of way, building setback lines and other dimensional regulations and the absence of: (A)
encroachments, either by such improvements or on to such property, which have not been cured or
insured over and (B) other defects which have not been cured or insured over, other than
encroachments and other defects acceptable to Agent (a “Real Estate Survey”); (ii) a letter
of opinion from local counsel in the state where the real property is located with respect to the
enforceability and perfection of the Mortgages and any related fixture filings in form and
substance reasonably satisfactory to Agent (a “Mortgage Opinion”); and (iii) to the extent
deliverable pursuant to the Credit Parties’ commercially reasonable efforts: (A) estoppel
certificates executed by all tenants of such Mortgaged Property and (B) such other consents,
agreements and confirmations of lessors and third parties as Agent may deem necessary or desirable;
and



                    (d) if required by Agent, Flood Insurance, and such other documents, instruments or agreements
reasonably requested by Agent, in each case, in form and substance reasonably satisfactory to
Agent.



               (xii) Letter of Direction. Duly executed originals of a letter of direction from
Borrower addressed to Agent, with respect to the disbursement on the Closing Date of the proceeds
of the Term Loans.



               (xiii) Formation and Good Standing. For each Credit Party, such Person’s (a) articles
of incorporation or certificate of formation, as applicable, and all amendments thereto, (b) good
standing certificates (including verification of tax status) in its state of incorporation or
formation, as applicable, and (c) good standing certificates (including verification of tax status)
and certificates of qualification to conduct business in each jurisdiction where its ownership or
lease of property or the conduct of its business requires such qualification, except such
jurisdictions where the failure to be in good standing could not reasonably be expected to result
in a Material Adverse Effect, each dated a recent date prior to



57









 




the Closing Date and certified by the applicable Secretary of State or other authorized
Governmental Authority.




               (xiv) Bylaws and Resolutions. For each Credit Party, (a) such Person’s bylaws,
operating agreement, limited liability company agreement or limited partnership agreement, as
applicable, together with all amendments thereto and (b) resolutions of such Person’s members or
board of directors, as the case may be, and, to the extent required under applicable law,
stockholders, approving and authorizing the execution, delivery and performance of the Loan
Documents to which such Person is a party and the transactions to be consummated in connection
therewith, each certified as of the Closing Date by such Person’s corporate secretary or an
assistant secretary, managing member or managing partner, as applicable, as being in full force and
effect without any modification or amendment.



               (xv) Incumbency Certificates. For each Credit Party, signature and incumbency
certificates of the officers of each such Person executing any of the Loan Documents, certified as
of the Closing Date by such Person’s corporate secretary or an assistant secretary as being true,
accurate, correct and complete.



               (xvi) Opinions of Counsel. Duly executed originals of legal opinions of (A) Kirkland
& Ellis LLP, (B) Paul, Hastings, Janofsky & Walker, LLP, (C) Daugherty, Fowler, Peregrin, Haught &
Jenson, (D) Dickinson Wright and (E) Cacheux, Cavazos & Newton, L.L.P., each in form and substance
reasonably satisfactory to Agent and its counsel, dated the Closing Date, and accompanied by a
letter addressed to such counsel from the Credit Parties, authorizing and directing such counsel to
address its opinion to Agent, on behalf of Lenders, and to include in such opinion an express
statement to the effect that Agent and Lenders are authorized to rely on such opinion.



               (xvii) Pledge Agreement. Duly executed originals of the Pledge Agreement accompanied
by (as applicable) share certificates representing all of the outstanding Stock being pledged
pursuant to Pledge Agreement and stock powers for such share certificates executed in blank, along
with evidence that all other actions necessary to perfect (to the extent provided in the Pledge
Agreement) the security interests in the Stock purported to be created by the Pledge Agreement have
been taken.



               (xviii) Officer’s Certificate. Agent shall have received duly executed originals of a
certificate of a Financial Officer of Borrower, dated the Closing Date, stating that: (a) since
December 31, 2009, and except as contemplated by the Related Transactions, no Closing Date Material
Adverse Effect (as defined below) shall have occurred and be continuing; and (b) since December 31,
2009, and except as contemplated by the Chapter 11 Cases and the Related Transactions, there has
been no material increase in liabilities, liquidated or contingent, and no material decrease in
assets (other than adjustments made as a result of “fresh start” accounting upon the effectiveness
of the Plan of Reorganization).



               (xix) Revolving Loan Credit Documents.



                    (A) Agent shall have received fully executed copies of the Revolving Loan Credit Agreement and
each other Revolver Credit Document executed in



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connection therewith, certified as true and correct by a Financial Officer of Borrower. Each
Revolver Credit Document shall be in full force and effect, and no provisions thereof shall have
been modified in any respect determined by Agent to be materially adverse to the interests of the
Credit Parties or the Lenders, in each case, without the consent of Agent.




                    (B) Agent shall have received evidence satisfactory to it that all conditions to the closing
of the transactions contemplated by the Revolving Loan Credit Documents have been satisfied or
waived.



                    (C) Agent shall have received a copy of the Borrowing Base Certificate (as defined in the
Revolving Loan Credit Agreement) delivered on the Closing Date pursuant to the Revolving Loan
Credit Agreement.



               (xx) Audited Financials; Financial Condition. Agent shall have received the Financial
Statements, Business Plan and other materials set forth in Section 4.4, certified by a
Financial Officer of Borrower, in each case in form and substance reasonably satisfactory to Agent.
Agent shall have further received a certificate of a Financial Officer of Borrower, based on such
Pro Forma and Business Plan, to the effect that (a) the Pro Forma fairly present, in all material
respects, the financial position of Borrower and its Subsidiaries as of the date thereof after
giving effect to the transactions contemplated by the Loan Documents; and (b) the Business Plan is
based upon estimates and assumptions stated therein, all of which Borrower believes to be
reasonable and fair in light of current conditions and current facts known to Borrower and, as of
the Closing Date, reflect Borrower’s good faith estimates believed to be reasonable at the time
made of its future financial performance and of the other information projected therein for the
period set forth therein. Notwithstanding anything to the contrary contained herein, it is hereby
understood by Agent and each Lender that (i) any financial or business projections furnished to
Agent or any Lender by Borrower and its Subsidiaries hereunder or under any Loan Document are
subject to significant uncertainties and contingencies, which may be beyond the control of Borrower
and its Subsidiaries, (ii) no assurance is given by Borrower or its Subsidiaries that the results
forecasted in any such projections will be realized and (iii) the actual results may differ from
the forecasted results set forth in such projections and such differences may be material.



               (xxi) Bankruptcy Matters. Agent shall have received a certificate from a Financial
Officer of Borrower that (i) all conditions to the effectiveness of the Plan of Reorganization have
been satisfied or waived in a manner reasonably acceptable to Agent, (ii) the Plan of
Reorganization shall have been consummated or shall be consummated contemporaneously with the
closing of this Agreement and (iii) all administrative expenses of Borrower (excluding remaining
professional fees and expenses and ordinary course obligations of Borrower) incurred under the
Chapter 11 Cases, including, without limitation, all debtor-in-possession financing that are then
due and payable have been concurrently satisfied.



               (xxii) Solvency Certificate. Agent shall have received a solvency certificate (which
shall be in form and substance reasonably satisfactory to Agent) from a Financial Officer of
Borrower certifying that Borrower and its Subsidiaries, on a consolidated basis, on the Closing
Date, after giving effect to the Related Transactions, is Solvent.



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          (b) Repayment of Prior Lender Obligations. Agent shall have received fully executed
original pay-off letters reasonably satisfactory to Agent confirming that the Prior Lender
Obligations will be repaid from the proceeds of the Term Loans and the other Related Transactions
and all Liens upon any of the property of Borrower or any of its Subsidiaries in favor of Prior
Agents or any Prior Lender shall be terminated by such Person immediately upon such payment.




          (c) Approvals. Agent shall have received (i) satisfactory evidence that the Credit
Parties have obtained all required consents and approvals of all Persons including, all requisite
Governmental Authorities (including, without limitation, the Bankruptcy Court), to the execution,
delivery and performance of this Agreement and the other Loan Documents and the consummation of the
Related Transactions or (ii) an officer’s certificate in form and substance reasonably satisfactory
to Agent affirming that no such consents or approvals are required.




          (d) Payment of Fees. Borrower shall have paid to Agent, Arranger and Collateral Agent
all Fees required to be paid on or before the Closing Date in the respective amounts specified in
Section 2.7 (including, the Fees specified in the Fee Letter), and shall have reimbursed
Agent for all reasonable fees, costs and expenses of closing presented as of the Closing Date.




          (e) Consummation of Related Transactions. Agent shall have received fully executed
copies of the Related Transactions Documents, each of which shall be in full force and effect and,
except with respect to the Equity Commitment Agreement, in form and substance reasonably
satisfactory to Agent. The Related Transactions shall have been consummated in accordance with the
terms of the Related Transactions Documents. The sources and uses of funds and debt of Borrower on
the Closing Date are consistent with those set forth on Schedule (2.4).




          (f) Litigation, etc. There shall not exist any action, suit, investigation,
litigation or proceeding pending or threatened in any court of before any arbitrator or
Governmental Authority that affects any of the transactions contemplated by this Agreement, or that
could be reasonably likely to have a Material Adverse Effect on the business, assets, operations or
condition (financial or otherwise) of Borrower and each of its respective Subsidiaries, taken as a
whole.




          (g) Closing Date Revolver Availability. On the Closing Date no more than (i)
$25,000,000, plus (ii) amounts necessary to fund original issue discount or up-front fees used in
connection with the Revolving Loan Credit Agreement and this Agreement, if any.




          (h) Rights Offering. Borrower shall have received minimum aggregate gross proceeds of
$1,250,000,000 in cash pursuant to the Rights Offering, on terms and conditions set forth in the
Equity Commitment Agreement.




          (i) EBITDA. Borrower’s and its Restricted Subsidiaries’ consolidated EBITDA, after
giving Pro Forma Effect to the transactions contemplated by the Plan of Reorganization, for the
four Fiscal Quarter period ending on August 31, 2010 shall not be less than $400,000,000.







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          (j) Closing Date Material Adverse Effect. There shall not have been a material
adverse change, individually or in the aggregate, in, or affecting, (i) since December 31, 2009,
the business, financial condition, operations, performance or properties of Borrower and its
Subsidiaries, taken as a whole, after giving effect to the Related Transactions, (ii) the ability
of Borrower or the other Credit Parties to perform their obligations under the Loan Documents when
due and (iii) the validity or enforceability of any of the Loan Documents or the rights and
remedies of Agent and the Lenders under any of the Loan Documents (each, a “Closing Date
Material Adverse Effect”); provided, however, for purposes of this Section
3.1, (A) nothing as disclosed in (1) Borrower’s Annual Report on Form 10-K for the year ended
December 31, 2009, (2) Borrower’s Quarterly Report on Form 10-Q for each quarter ended since
December 31, 2009, as filed prior to the Closing Date, and/or (3) the Disclosure Statement filed in
connection with the Plan of Reorganization, in each case, based solely on facts as disclosed
therein (without giving effect to any developments not disclosed therein), (B) any change in
general economic or political conditions or conditions generally affecting the industries in which
Borrower and its Subsidiaries operate (including those resulting from acts of terrorism or war
(whether or not declared) or other calamity, crisis or geopolitical event) and any adverse change
since August 25, 2010 in the loan syndication, financial or capital markets generally, (C) any
change or prospective change in any law or GAAP, or any interpretation thereof, (D) any change in
currency, exchange or interest rates or the financial or securities markets generally, (E) any
change in the market price or trading volume of the common Stock of Borrower, provided, that any
event that caused or contributed to such change in market price or trading volume shall not be
excluded, (F) any change to the extent resulting from the announcement or pendency of the Related
Transactions and/or (G) any change resulting from actions of Borrower or its Subsidiaries expressly
agreed to or requested in writing by Agent, except in the cases of clauses (ii) and
(iii) to the extent such change or event is disproportionately adverse with respect to
Borrower and its Subsidiaries when compared to other companies in the industry in which Borrower
and its Subsidiaries operate, shall, in any case, in and of itself be deemed to constitute a
Closing Date Material Adverse Effect.




          (k) Disclosure Statement and Plan of Reorganization. The Disclosure Statement and
Plan of Reorganization (together with all exhibits and other attachments thereto, as any of the
foregoing has been amended, modified or supplemented prior to the date hereof, collectively, the
“Plan Documents”) shall not have been amended, modified or supplemented or any of the terms
and conditions thereof waived, in each case in a manner materially adverse to the Lenders without
the consent of Agent. The Bankruptcy Court shall have entered the Confirmation Order confirming
the Plan of Reorganization, and all conditions precedent (other than the effectiveness of the
financing contemplated under the Revolving Loan Credit Agreement and under this Agreement) to the
effectiveness of the Plan of Reorganization shall have been satisfied (or waived with the consent
of Agent with respect to any waiver that is, in the reasonable judgment of Agent, adverse in any
material respect to the rights or interests of the Lenders). No motion, action or proceeding shall
be pending against any Credit Party or any of their Subsidiaries by any creditor or other party in
interest which materially and adversely affects or may reasonably be expected to materially and
adversely affect the Plan of Reorganization or the Term Loans.




          (l) Representations and Warranties. As of the Closing Date, the representations and
warranties contained herein and in the other Loan Documents shall be true






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and correct in all material respects on and as of the Closing Date to the same extent as
though made on and as of such date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and warranties shall
have been true and correct in all material respects on and as of such earlier date.




          (m) No Default. As of the Closing Date, no event shall have occurred and be
continuing that would constitute an Event of Default or a Default.




          (n) Patriot Act. Agent shall have received from the Credit Parties all documentation and
other information required by Governmental Authorities under applicable “know your customer” and
anti-money laundering rules and regulations, including the Patriot Act, in each case to the extent
requested in writing at least three (3) Business Days prior to the Closing Date.




     3.2 Further Conditions to Each Continuation/Conversion. Except as otherwise expressly
provided herein, no Lender shall be obligated to convert or continue the Term Loans as a LIBOR Loan
with a LIBOR Period longer than one (1) month, if, as of the date thereof (a) any Default or Event
of Default has occurred and is continuing and (b) Agent or Requisite Lenders shall have determined
not to convert or continue any portion of the Term Loans as a LIBOR Loan with a LIBOR Period longer
than one (1) month as a result of that Default or Event of Default. The conversion or continuation
of the Term Loans into, or as, a LIBOR Loan with a LIBOR Period longer than one (1) month shall be
deemed to constitute, as of the date thereof, a representation and warranty by Borrower that the
condition in this Section 3.2 have been satisfied.



4. REPRESENTATIONS AND WARRANTIES




     To induce Lenders to make the Term Loans, the Credit Parties executing this Agreement, jointly
and severally, make the following representations and warranties to Agent and each Lender with
respect to all Credit Parties, each and all of which shall survive the execution and delivery of
this Agreement.



     4.1 Corporate Existence; Compliance with Law. Each Credit Party (a) is a corporation,
limited liability company or limited partnership duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation or organization set forth
in Schedule (4.1); (b) is duly qualified to conduct business and is in good standing in
each other jurisdiction where its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so qualified would not result in
exposure to losses, damages or liabilities which could, in the aggregate, reasonably be expected to
result in a Material Adverse Effect; (c) has the requisite power and authority, except to the
extent the failure to do so could not reasonably be expected to result in a Material Adverse
Effect, and the legal right to own and operate in all material respects its properties, to lease
the property it operates under lease and to conduct its business in all material respects as now,
heretofore and proposed to be conducted and has the requisite power and authority and the legal
right to pledge, mortgage, hypothecate or otherwise encumber the Collateral; (d) subject to
specific representations regarding Environmental Laws, has all material licenses, permits, consents
or approvals from or by, and has made all material filings with, and has given all material notices




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to, all Governmental Authorities having jurisdiction, to the extent required for such
ownership, operation and conduct; (e) is in compliance with its charter and bylaws or partnership
or operating agreement, as applicable; and (f) subject to specific representations set forth herein
regarding ERISA, Environmental Laws, tax and other laws, is in compliance with all applicable
provisions of law, except where the failure to comply, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.




     4.2 Jurisdiction of Organization; Chief Executive Offices; Collateral Locations; FEIN.
As of the Closing Date, each Credit Party’s name as it appears in official filings in its state of
incorporation or organization, organization type, organization number, if any, issued by its state
of incorporation or organization and the current location of each Credit Party’s jurisdiction of
organization, chief executive office, principal place of business and the warehouses and premises
at which any Collateral is located are set forth in Schedule (4.2), except as set forth on
such schedule, none of such locations has changed within the four (4) months preceding the Closing
Date and each Credit Party has only one state of incorporation or organization. In addition,
Schedule (4.2) lists the federal employer identification number and organizational
identification number, if any, of each Credit Party.



     4.3 Corporate Power; Authorization; Enforceable Obligations. The execution, delivery
and performance by each Credit Party of the Loan Documents to which it is a party and the creation
of all Liens provided for therein: (a) are within such Person’s power; (b) have been duly
authorized by all necessary corporate, limited liability company or limited partnership action;
(c) do not contravene any provision of such Person’s charter, bylaws or partnership or operating
agreement as applicable; (d) do not violate any law or regulation, or any order or decree of any
court or Governmental Authority; (e) do not conflict with or result in the breach or termination
of, constitute a default under or accelerate or permit the acceleration of any performance required
by, any material indenture, mortgage, deed of trust, material lease, loan agreement or other
instrument to which such Person is a party or by which such Person or any of its property is bound;
(f) do not result in the creation or imposition of any Lien upon any of the property of such Person
other than those in favor of Agent, on behalf of itself and Lenders, pursuant to the Loan Documents
(and the Liens securing the Revolver Loan Obligations); and (g) do not require the consent or
approval of any Governmental Authority or any other Person, except (i) those referred to in
Section 3.1, all of which will have been duly obtained, made or complied with prior to the
Closing Date, (ii) the filings referred to in Section 4.25 and (iii) consents,
authorizations, filings and notices obtained or made in the ordinary course of business (except
with respect to the incurrence and repayment of the Loans, the Liens granted under the Collateral
Documents or any other material rights of Agent and the Lenders under the Loan Documents). Each of
the Loan Documents shall be duly executed and delivered by each Credit Party that is a party
thereto and, each such Loan Document shall constitute a legal, valid and binding obligation of such
Credit Party enforceable against it in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws generally affecting creditors’ rights and by
equitable principles (regardless of whether enforcement is sought in equity or at law).



     4.4 Financial Statements and Business Plan. Except for the Business Plan, all
Financial Statements concerning Borrower and its Subsidiaries that are referred to below have



63









 




been prepared in accordance with GAAP consistently applied throughout the periods covered
(except as disclosed therein and except, with respect to unaudited Financial Statements, for the
absence of footnotes and normal year-end audit adjustments) and fairly present, in all material
respects, the financial position of the Persons covered thereby as at the dates thereof and the
results of their operations and cash flows for the periods then ended.




          (a) Financial Statements. The following Financial Statements attached to a
certificate of a Financial Officer of Borrower have been delivered on the Closing Date:




               (i) The audited consolidated balance sheets at December 31, 2009 and the related statements of
income and cash flows of Borrower and its Subsidiaries for the Fiscal Years then ended, certified
by PricewaterhouseCoopers LLP.



               (ii) The unaudited balance sheets at March 31, 2010 and June 30, 2010 and the related
statements of income and cash flows of Borrower and its Subsidiaries for the Fiscal Quarters then
ended.



               (iii) The unaudited balance sheets and related statements of income of Borrower and its
Subsidiaries for the months ended July 31, 2010 and August 31, 2010.



          (b) Pro Forma. The Pro Forma delivered on the Closing Date and attached to a
certificate of a Financial Officer of Borrower was prepared by Borrower giving Pro Forma Effect to
the Related Transactions, was based on the unaudited consolidated balance sheets of Borrower and
each of its Subsidiaries dated June 30, 2010 and was prepared in accordance with GAAP, with only
such adjustments thereto as would be required in accordance with GAAP. The projections and pro
forma financial information contained in the materials referenced above are based upon good faith
estimates and assumptions believed by management of Borrower to be reasonable at the time made, it
being acknowledged and agreed by the Lenders that (a) such financial information as it relates to
future events is not to be viewed as fact and that actual results during the period or periods
covered by such financial information may differ from the projected results set forth therein by a
material amount, (b) the financial and business projections furnished to Agent or the Lenders are
subject to significant uncertainties and contingencies, which may be beyond the control of Borrower
and its Subsidiaries, (c) no assurances are given by any of Borrower or its Subsidiaries that the
results forecasted in the projections will be realized and (d) the actual results may differ from
the forecasted results in such projections and such differences may be material.




          (c) Business Plan. The Business Plan delivered on the Closing Date and attached to a
certificate of a Financial Officer of Borrower has been prepared by Borrower in light of the past
operations of its business, and reflect monthly forecasts for the twelve month period commencing
October 1, 2010 through September 30, 2011, and annual forecasts on a year-by-year basis thereafter
through Fiscal Year 2017. The Business Plan is based upon the same accounting principles as those
used in the preparation of the financial statements described above and the estimates and
assumptions stated therein, all of which Borrower believes to be reasonable and fair in light of
current conditions and current facts known to Borrower and, as of the Closing Date, reflect
Borrower’s good faith estimates believed to be reasonable by Borrower at the time made of the
future financial performance of Borrower for the period set forth therein.






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The projections and pro forma financial information contained in the materials referenced
above are based upon good faith estimates and assumptions believed by management of Borrower to be
reasonable at the time made, it being acknowledged and agreed by the Lenders that (a) such
financial information as it relates to future events is not to be viewed as fact and that actual
results during the period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount, (b) the financial and business
projections furnished to Agent or the Lenders are subject to significant uncertainties and
contingencies, which may be beyond the control of Borrower and its Subsidiaries, (c) no assurances
are given by any of Borrower or its Subsidiaries that the results forecasted in the projections
will be realized and (d) the actual results may differ from the forecasted results in such
projections and such differences may be material.




          (d) Undisclosed Liabilities; Burdensome Restrictions. None of Borrower or its
Restricted Subsidiaries has any material Guarantied Obligations, contingent liabilities or
liabilities for taxes, or any long-term leases or unusual forward or long-term commitments,
including any interest rate or foreign currency swap or exchange transaction or other obligation in
respect of derivatives, that are not reflected in the most recent financial statements referred to
in this Section 4.4. During the period from August 31, 2010 to and including the Closing
Date, there has been no disposition by any of Borrower or its Restricted Subsidiaries of any
material part of its business or property. No Credit Party knows of any unusual or unduly
burdensome restriction, restraint or hazard relative to the business or properties of the Credit
Parties and their Restricted Subsidiaries that is not customary for or generally applicable to
similarly situated businesses in the same industry as the Credit Parties and their Restricted
Subsidiaries.




     4.5 Material Adverse Effect. Since the Closing Date, no event has occurred, that
alone or together with other events, could reasonably be expected to have a Material Adverse
Effect.



     4.6 Ownership of Property; Liens. As of the Closing Date, the real estate (“Real
Estate”) listed in Schedule (4.6) constitutes all of the real property owned, leased,
subleased, or used by any Credit Party. Each Credit Party owns fee simple title to all of its
owned Real Estate, and valid leasehold interests in all of its leased Real Estate. Schedule
(4.6) further describes any Real Estate with respect to which any Credit Party is a lessor,
sublessor or assignor as of the Closing Date. Each Credit Party also has title to, or valid
leasehold interests in, all of its personal property and assets. As of the Closing Date, none of
the properties and assets of any Credit Party are subject to any Liens other than Permitted
Encumbrances, and there are no facts, circumstances or conditions known to any Credit Party that
may result in any Liens (including Liens arising under Environmental Laws) other than Permitted
Encumbrances. Each Credit Party has received all deeds, assignments, waivers, consents,
nondisturbance and attornment or similar agreements, bills of sale and other documents, and has
duly effected all recordings, filings and other actions necessary to establish, protect and perfect
such Credit Party’s right, title and interest in and to all such Real Estate and other properties
and assets. Schedule (4.6) also describes any purchase options, rights of first refusal or
other similar contractual rights, if any, pertaining to any material Real Estate. As of the
Closing Date, all of the Collateral (including, without limitation, Inventory, Equipment, books and
records) is at one or more of the locations listed on Schedule (4.6) or is in-transit
between such locations. As of the Closing Date, no portion of any Credit Party’s Real Estate has
suffered any material damage by fire or other



65









 




casualty loss that has not heretofore been repaired and restored in all material respects to
its original condition or otherwise remedied.




     4.7 Labor Matters. Except as set forth on Schedule (4.7) or as could not
reasonably be expected to result in a Material Adverse Effect, (a) no strikes or other material
labor disputes against any Credit Party or any Restricted Subsidiary of any Credit Party are
pending or, to any Credit Party’s knowledge, threatened; (b) hours worked by and payment made to
employees of each Credit Party and each Restricted Subsidiary of any Credit Party comply with the
Fair Labor Standards Act and each other federal, state, local or foreign law applicable to such
matters; (c) all payments due from any Credit Party or any Restricted Subsidiary of any Credit
Party for employee health and welfare insurance have been paid or accrued as a liability on the
books of such Credit Party or such Restricted Subsidiary; (d) there is no organizing activity
involving any Credit Party or any Restricted Subsidiary of any Credit Party pending or, to any
Credit Party’s knowledge, threatened by any labor union or group of employees; (e) there are no
representation proceedings pending or, to any Credit Party’s knowledge, threatened with the
National Labor Relations Board or any other applicable labor relations board, and no labor
organization or group of employees of any Credit Party or any Restricted Subsidiary of any Credit
Party has made a pending demand for recognition; and (f) there are no material complaints or
charges against any Credit Party or any Restricted Subsidiary of any Credit Party pending or, to
the knowledge of any Credit Party, threatened to be filed with any Governmental Authority or
arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or
termination of employment by any Credit Party or any Restricted Subsidiary of any Credit Party of
any individual.



     4.8 Subsidiaries and Joint Ventures. As of the Closing Date, (a) Schedule
(4.8) sets forth the name and jurisdiction of incorporation of each Subsidiary and Joint
Venture of Borrower and, as to each such Subsidiary and Joint Venture, the percentage of each class
of Stock owned by any Credit Party and (b) there are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than stock options granted to
employees or directors and directors’ qualifying shares) of any nature relating to any Stock of
Borrower or any Subsidiary, except as created by the Loan Documents and the Revolving Loan Credit
Documents.



     4.9 Government Regulation. No Credit Party is an “investment company” or a company
controlled by an “investment company,” as such terms are defined in the Investment Company Act of
1940. The making of the Term Loans by Lenders to Borrower, the application of the proceeds thereof
and repayment thereof and the consummation of the Related Transactions will not violate any
provision of any such statute or any rule, regulation or order issued by the SEC or any other
securities regulation authority or securities exchange.



     4.10 Margin Regulations. No Credit Party is engaged, nor will it engage, principally
or as one of its important activities, in the business of extending credit for the purpose of
“purchasing” or “carrying” any “margin stock” as such terms are defined in Regulation U of the
Federal Reserve Board as now and from time to time hereafter in effect (such securities being
referred to herein as “Margin Stock”). No Credit Party owns any Margin Stock, and none of
the proceeds of the Term Loans or other extensions of credit under this Agreement will be used,
directly or indirectly, for the purpose of purchasing or carrying any Margin Stock, for the



66









 




purpose of reducing or retiring any Indebtedness that was originally incurred to purchase or
carry any Margin Stock or for any other purpose that might cause any of the Term Loans or other
extensions of credit under this Agreement to be considered a “purpose credit” within the meaning of
Regulations T, U or X of the Federal Reserve Board. No Credit Party will take or permit to be
taken any action that might cause any Loan Document to violate any regulation of the Federal
Reserve Board.




     4.11 Taxes. All Federal and other material tax returns, reports and statements,
including information returns, required by any Governmental Authority to be filed by any Credit
Party or any Restricted Subsidiary have been filed (after giving effect to any extensions) with the
appropriate Governmental Authority, and all Taxes have been paid prior to the date on which any
fine, penalty, interest or late charge may be added thereto for nonpayment thereof excluding Taxes
or other amounts being contested in accordance with Section 6.2(b). Except as described in
Schedule (4.11), each Credit Party and each Restricted Subsidiary has withheld from its
respective employees for all periods all material Taxes required to have been withheld pursuant to
all applicable federal, state, local and foreign laws and such withholdings have been timely paid
to the respective Governmental Authorities. Schedule (4.11) sets forth as of the Closing
Date those taxable years for which any Credit Party’s or Restricted Subsidiary’s tax returns are
currently being audited by the IRS or any other applicable Governmental Authority, and any
assessments or threatened assessments (in writing) in connection with such audit, or otherwise
currently outstanding. Except as described in Schedule (4.11), as of the Closing Date, no
Credit Party or any Restricted Subsidiary has executed or filed with the IRS or any other domestic
or foreign Governmental Authority any agreement or other document extending, or having the effect
of extending, the period for assessment or collection of any Charges or Taxes. Except as described
on Schedule (4.11), as of the Closing Date, none of the Credit Parties, Restricted
Subsidiaries and their respective predecessors is liable for any Charges: (a) under any agreement
(including any tax sharing agreements other than those solely among Credit Parties and their
Restricted Subsidiaries) or (b) to each Credit Party’s knowledge, as a transferee. Except as
described on Schedule (4.11), as of the Closing Date, no Credit Party has agreed or been
requested to make any adjustment under IRC Section 481(a), by reason of a change in accounting
method or otherwise, which would reasonably be expected to have a Material Adverse Effect.



     4.12 ERISA.



          (a) Borrower has previously delivered or made available to Agent all Pension Plans (including
Title IV Plans and Multiemployer Plans) and all Retiree Welfare Plans, as now in effect. Except
with respect to Multiemployer Plans, each Qualified Plan has either received a favorable
determination letter from the IRS or may rely on a favorable opinion letter issued by the IRS, and
to the knowledge of any Credit Party nothing has occurred that would be reasonably expected to
cause the loss of such qualification or tax-exempt status. Each Plan is in compliance in all
material respects with the applicable provisions of ERISA, the IRC and its terms, including the
timely filing of all reports required under the IRC or ERISA. Except as has not resulted, or could
not reasonably be expected to result, in an ERISA Lien (whether or not perfected), neither any
Credit Party nor ERISA Affiliate has failed to make any material contribution or pay any material
amount due as required by either Section 412 of the IRC or Section 302 of ERISA or the terms of any
such Plan. No “prohibited transaction,” as defined in Section 406 of ERISA and






67









 







Section 4975 of the IRC, has occurred with respect to any Plan that would subject any Credit
Party to a material tax on prohibited transactions imposed by Section 502(i) of ERISA or
Section 4975 of the IRC.




          (b) Except as could not reasonably be expected to have a Material Adverse Effect: (i) no Title
IV Plan or Foreign Plan has any material Unfunded Pension Liability; (ii) no ERISA Event has
occurred or to the knowledge of any Credit Party is reasonably expected to occur; (iii) there are
no pending, or to the knowledge of any Credit Party, threatened material claims (other than claims
for benefits in the normal course), sanctions, actions or lawsuits, asserted or instituted against
any Plan or any Person as fiduciary or sponsor of any Plan; (iv) no Credit Party or ERISA Affiliate
has incurred or reasonably expects to incur any material liability as a result of a complete or
partial withdrawal from a Multiemployer Plan; and (v) within the last five years no Title IV Plan
of any Credit Party or ERISA Affiliate has been terminated, whether or not in a “standard
termination” as that term is used in Section 4041 of ERISA, nor has any Title IV Plan of any Credit
Party or any ERISA Affiliate (determined at any time within the last five years) with material
Unfunded Pension Liabilities been transferred outside of the “controlled group” (within the meaning
of Section 4001(a)(14) of ERISA) of any Credit Party or ERISA Affiliate (determined at such time).




          (c) Each Foreign Plan has been maintained in compliance with its terms and with the
requirements of any and all applicable requirements of applicable law and has been maintained,
where required, in good standing with applicable regulatory authorities, except for any
noncompliance which could not reasonably be expected to result in a Material Adverse Effect.
Neither Borrower nor any Restricted Subsidiary has incurred any obligation in connection with the
termination of or withdrawal from any Foreign Plan, except as could not reasonably be expected to
result in a Material Adverse Effect.




     4.13 No Litigation. No action, claim, lawsuit, demand, investigation or proceeding is
now pending or, to the knowledge of any Credit Party, threatened in writing against any Credit
Party or any Restricted Subsidiary of any Credit Party, before any Governmental Authority or before
any arbitrator or panel of arbitrators (collectively, “Litigation”), (a) that challenges
such Credit Party’s right or power to enter into or perform any of its obligations under the Loan
Documents to which it is a party, or the validity or enforceability of any Loan Document or any
action taken thereunder, or (b) that has a reasonable risk of being determined adversely to any
Credit Party or any Restricted Subsidiary of any Credit Party and that, if so determined, could
reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule
(4.13), as of the Closing Date there is no Litigation pending or, to any Credit Party’s
knowledge, threatened in writing, that seeks damages in excess of $5,000,000 or injunctive relief
against, or alleges criminal misconduct of, any Credit Party or any Restricted Subsidiary of any
Credit Party.



     4.14 Brokers. Except as set forth on Schedule (4.14), no broker or finder
brought about the obtaining, making or closing of the Term Loans or the Related Transactions, and
no Credit Party or Affiliate thereof has any obligation to any Person in respect of any finder’s or
brokerage fees in connection therewith.



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     4.15 Intellectual Property. As of the Closing Date, each Credit Party owns or has
rights to use all Intellectual Property necessary to continue to conduct its business as now
conducted by it and material to such Credit Party’s business, taken as a whole, except where
failure to so own or have rights could not reasonably be expected to result in a Material Adverse
Effect. Each issued or applied-for Patent, registered or applied-for Trademark, registered or
applied-for Copyright owned by any Credit Party is listed, together with application or
registration numbers, as applicable, on Schedule (4.15). Schedule (4.15) also sets
forth a list of Licenses that are material to each Credit Party’s business as now conducted by it.
To the best of Borrower’s knowledge, each Credit Party conducts its business and affairs without
infringement of any Intellectual Property of any other Person that could reasonably be expected to
result in a Material Adverse Effect. Except as set forth in Schedule (4.15), no Credit
Party is aware of any material infringement claim by any other Person with respect to any material
Intellectual Property owned by such Credit Party.



     4.16 Full Disclosure. No information contained in this Agreement, any of the other
Loan Documents, Financial Statements or Collateral Reports or other written reports from time to
time prepared by any Credit Party (other than the projections referred to below and information of
a general economic or industry nature) and delivered hereunder or any written statement prepared by
any Credit Party and furnished (taken as a whole) by or on behalf of any Credit Party to Agent or
any Lender pursuant to the terms of this Agreement contains or will contain any untrue statement of
a material fact or omits or will omit to state a material fact necessary to make the statements
contained herein or therein not materially misleading in light of the circumstances under which
they were made (after giving effect to all supplements and updates thereto). The Business Plans
from time to time delivered hereunder are or will be based upon the estimates and assumptions
stated therein, all of which Borrower believed at the time of delivery to be reasonable and fair in
light of current conditions and current facts known to Borrower as of such delivery date, and
reflect Borrower’s good faith estimates of the future financial performance of Borrower and its
Subsidiaries and of the other information projected therein for the period set forth therein. Such
Business Plan is not a guaranty of future performance and actual results may differ from those set
forth in such Business Plan. The projections and pro forma financial information contained in the
materials referenced above are based upon good faith estimates and assumptions believed by
management of Borrower to be reasonable at the time made, it being acknowledged and agreed by Agent
and the Lenders that (a) such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a material amount, (b) the
financial and business projections furnished to Agent or the Lenders are subject to significant
uncertainties and contingencies, which may be beyond the control of Borrower and its Subsidiaries,
(c) no assurances are given by any of Borrower or its Subsidiaries that the results forecasted in
the projections will be realized and (d) the actual results may differ from the forecasted results
in such projections and such differences may be material.



     4.17 Environmental Matters.



          (a) Except as set forth in Schedule (4.17), as of the Closing Date: (i) the Real
Estate of each Credit Party and each of their Restricted Subsidiaries is free of contamination from
any Hazardous Material except for such contamination that would not result in






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Environmental Liabilities that could reasonably be expected to have a Material Adverse Effect;
(ii) no Credit Party nor any Restricted Subsidiary of any Credit Party has caused or suffered to
occur any material Release of Hazardous Materials on, at, in, under, above, to, from or about any
of its Real Estate except for such Release of Hazardous Materials that would not result in
Environmental Liabilities that could reasonably be expected to have a Material Adverse Effect;
(iii) the Credit Parties and each of their Restricted Subsidiaries are and have, for the past eight
(8) years, been in compliance with all Environmental Laws, except for such noncompliance that would
not result in Environmental Liabilities which could reasonably be expected to have a Material
Adverse Effect; (iv) the Credit Parties and each of their Restricted Subsidiaries (A) have
obtained, (B) possess as valid, uncontested and in good standing, and (C) are in compliance with
all Environmental Permits required by Environmental Laws for the operation of their respective
businesses as presently conducted or as proposed to be conducted, except where the failure to so
obtain, possess or comply with such Environmental Permits would not result in Environmental
Liabilities that could reasonably be expected to have a Material Adverse Effect; (v) to the best of
Borrower’s knowledge there is no Litigation arising under or related to any Environmental Laws,
Environmental Permits or Hazardous Material that seeks damages, penalties, fines, costs or expenses
the payment of which could reasonably be expected to have a Material Adverse Effect or injunctive
relief which could reasonably be expected to have a Material Adverse Effect against, or that
alleges criminal misconduct by, any Credit Party or any Restricted Subsidiary of any Credit Party;
(vi) no written notice has been received by any Credit Party or any Restricted Subsidiary of any
Credit Party identifying it as a “potentially responsible party” or requesting information under
CERCLA or analogous state statutes, except for such notice that would not result in Environmental
Liabilities that could reasonably be expected to have a Material Adverse Effect; and (vii) the
Credit Parties and each of their Restricted Subsidiaries have provided to Agent copies of existing
environmental reports, reviews and audits and written information sufficient, along with
Schedule (4.17), to disclose actual or potential material Environmental Liabilities, in
each case relating to any Credit Party or any Restricted Subsidiary of any Credit Party.




          (b) Each Credit Party hereby acknowledges and agrees that none of Agent, any other secured
party under the Loan Documents or any of their respective officers, directors, employees,
attorneys, agents and representatives (i) is now, or has ever been, in control of any of the Real
Estate or any Credit Party’s or any Restricted Subsidiary of any Credit Party’s affairs, and (ii)
has the capacity or the authority through the provisions of the Loan Documents or otherwise to
direct or influence any (A) Credit Party’s or any Restricted Subsidiary of any Credit Party’s
conduct with respect to the ownership, operation or management of any of its Real Estate,
(B) undertaking, work or task performed by any employee, agent or contractor of any Credit Party or
any Restricted Subsidiary of any Credit Party or the manner in which such undertaking, work or task
may be carried out or performed, or (C) compliance of any Credit Party or any Restricted Subsidiary
of any Credit Party with Environmental Laws or Environmental Permits.




     4.18 Insurance. Borrower has previously delivered or made available to Agent lists of
all insurance policies of any nature maintained, as of the Closing Date, for current occurrences by
each Credit Party and each Restricted Subsidiary, as well as a summary of the material terms of
each such policy.



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     4.19 Deposit Accounts. Schedule (4.19) lists all banks and other financial
institutions at which any Credit Party maintains deposit or other accounts as of the Closing Date
and such Schedule correctly identifies the name of each depository, the name in which the account
is held, a description of the purpose of the account, and the complete account number therefor.



     4.20 Government Contracts. Except as set forth in Schedule (4.20), as of the
Closing Date, no Credit Party is a party to any material contract with any Governmental Authority
which are customers of a Credit Party and no Credit Party’s Accounts are subject to the Federal
Assignment of Claims Act (31 U.S.C. Section 3727) or any similar state or local law.



     4.21 Customer and Trade Relations. As of the Closing Date, there exists no actual or,
to the knowledge of Borrower, threatened termination or cancellation of, or any material adverse
modification or change in, the business relationship of any Credit Party or any Restricted
Subsidiary of any Credit Party with any customer or group of customers that could reasonably be
expected to result in a Material Adverse Effect.



     4.22 Bonding. Except as set forth on Schedule (4.22), as of the Closing Date,
no Credit Party is a party to or bound by any surety bond agreement or bonding requirement with
respect to products or services sold by it.



     4.23 Intentionally Omitted.



     4.24 No Default. No Credit Party and none of its Restricted Subsidiaries are in
default under or with respect to any of its Contractual Obligations in any respect that could
reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.



     4.25 Creation and Perfection of Security Interests.



          (a) The Security Agreement is effective to create in favor of Agent, for the benefit of the
Secured Parties (as defined in the Security Agreement), a legal and valid security interest in the
Collateral described therein and proceeds thereof. In the case of the portion of the pledged
Collateral consisting of the certificated securities represented by the certificates described in
the Pledge Agreement, when stock certificates representing such pledged Collateral are delivered to
Agent and such stock certificates are held in New York, and in the case of the other Collateral
described in the Security Agreement, when financing statements and other filings specified on
Schedule (4.25(a)) in appropriate form are filed in the offices specified on Schedule
(4.25(a)), the Security Agreement shall constitute a fully perfected Lien under the Code on,
and security interest in, all right, title and interest of the Credit Parties in such Collateral
and the proceeds thereof, as security for the Obligations (as defined in the Security Agreement),
in each case prior and superior (subject to the Intercreditor Agreement) in right to any other
Person (except, in the case of Collateral, Liens permitted by Section 7.7).




          (b) Each of the Mortgages is effective to create in favor of Agent, for the benefit of the
Secured Parties (as defined in the Security Agreement), a legal, valid and enforceable Lien on the
Mortgaged Properties described therein and proceeds thereof, and when the Mortgages are filed in
the offices specified on Schedule (4.25(b)), each such Mortgage shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of the




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Credit Parties in the Mortgaged Properties and the proceeds thereof, as security for the
Obligations (as defined in the relevant Mortgage), in each case prior and superior in right to any
other Person (other than applicable Liens permitted by Section 7.7 and listed as exceptions
in the applicable title insurance policy with respect thereto), subject to the terms of the
Intercreditor Agreement. Schedule (4.25(b)) lists, as of the Closing Date, each parcel of
owned real property located in the United States and held by Borrower or any of its Restricted
Subsidiaries that has a value, in the reasonable opinion of Borrower, in excess of $2,500,000.




     4.26 Intentionally Omitted.



     4.27 Solvency. Immediately after giving effect to (a) the Term Loans to be made or
incurred on the Closing Date, (b) the disbursement of proceeds of such Term Loans pursuant to the
instructions of Borrower, (c) the Refinancing and the consummation of the other Related
Transactions and (d) the payment and accrual of all transaction costs in connection with the
foregoing, the Credit Parties, taken as a whole, are and will be Solvent.



     4.28 Material Contracts. Except as otherwise set forth on Schedule (4.28), as
of the Closing Date, except as could not reasonably be expected to have a Material Adverse Effect,
none of the Credit Parties which are party to any Material Contract is in default or alleged to be
in default under any Material Contract, and no asserted or, to the best knowledge of Borrower,
unasserted claim or dispute under any Material Contract exists that could reasonably be expected to
have a Material Adverse Effect.



     4.29 Foreign Assets Control Regulations and Anti-Money Laundering. Each Credit Party
and each Subsidiary of each Credit Party is and will remain in compliance in all material respects
with all United States economic sanctions, laws, executive orders and implementing regulations as
promulgated by the United States Treasury Department’s Office of Foreign Assets Control
(“OFAC”), and all applicable anti-money laundering and counter-terrorism financing
provisions of the Bank Secrecy Act and all regulations issued pursuant to it. No Credit Party and
no Subsidiary of a Credit Party (a) is a Person designated by the United States government on the
list of the Specially Designated Nationals and Blocked Persons (the “SDN List”) with which
a United States Person cannot deal with or otherwise engage in business transactions, (b) is a
Person who is otherwise the target of United States economic sanctions laws such that a United
States Person cannot deal or otherwise engage in business transactions with such Person or (c) is
controlled by (including, without limitation, by virtue of such Person being a director or owning
voting shares or interests), or acts, directly or indirectly, for or on behalf of, any Person on
the SDN List or a foreign government that is the target of United States economic sanctions
prohibitions such that the entry into, or performance under, this Agreement or any other Loan
Document would be prohibited under United States law.



     4.30 Patriot Act. Each Credit Party, each of its Subsidiaries and each of its
Affiliates are in compliance with (a) the Trading with the Enemy Act, and each of the foreign
assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V,
as amended) and any other enabling legislation or executive order relating thereto, (b) the USA
PATRIOT ACT (Title 111 of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot
Act”) and (c) other federal or state laws relating to “know your customer” and anti-money
laundering rules and regulations. Borrower shall use the proceeds of the Term Loans only as



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provided in Section 2.4. No part of the proceeds of the Term Loans will be used
directly or indirectly for any payments to any government official or employee, political party,
official of a political party, candidate for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977.




     4.31 Regulation H. Except as set forth on Schedule (4.31), no Mortgaged
Property is located in an area that has been identified by the Secretary of Housing and Urban
Development as an area having special flood hazards and in which flood insurance has not been made
available under the National Flood Insurance Act of 1968.



     4.32 Holding Company. Except as permitted by the immediately succeeding sentence of
this Section 4.32, no Foreign Stock Holding Company owns or leases, directly or indirectly,
any real, personal, intangible or tangible property of any nature, other than the Stock of its
Foreign Subsidiaries and other Foreign Stock Holding Companies and ownership or leases of
immaterial assets as incidental to maintaining its operations, including, without limitation, as to
branch offices. Except as permitted by Section 7.21, no Foreign Stock Holding Company
conducts, transacts or otherwise engages in any material business or operations other than (a)
those incidental to the ownership of such Stock of its Foreign Subsidiaries, (b) actions required
to maintain its existence, (c) activities incidental to its maintenance and continuance and to the
foregoing activities and (d) making loans, advances or other Investments in Borrower and its
Subsidiaries to the extent permitted by Section 7.2. No Foreign Stock Holding Company has
any material obligations or liabilities other than under the Loan Documents and the Revolving Loan
Credit Documents.



     4.33 Plan of Reorganization. The Bankruptcy Court has entered an order, in form and
substance reasonably satisfactory to Agent (the “Confirmation Order”), confirming the Plan
of Reorganization, there have been no amendments or other changes to the Plan of Reorganization
that would increase the amount to be paid, shorten the time for payment or otherwise be materially
adverse to the Lenders unless otherwise agreed to by Agent. The Confirmation Order has not been
stayed, and no motion for rehearing or reconsideration, no notice of appeal from the Confirmation
Order nor any motion to set aside or vacate the Confirmation Order has been filed, and the
Effective Date under (and as defined in) the Plan of Reorganization has occurred.




	5.	 	FINANCIAL STATEMENTS AND INFORMATION





     5.1 Financial Reports and Notices. Each Credit Party executing this Agreement hereby
agrees that from and after the Closing Date and until the Termination Date, it shall deliver to
Agent or to Agent and Lenders, as required, the following Financial Statements, notices, Business
Plans and other information at the times, to the Persons and in the manner set forth below:



          (a) Monthly Financials. (i) To Agent and Lenders, within thirty (30) days after the
end of each Fiscal Month other than the last Fiscal Month of the Fiscal Year commencing with the
Fiscal Month ending October 31, 2010 (or forty-five (45) days after the last month in each Fiscal
Quarter), financial information regarding Borrower and its consolidated Subsidiaries, certified by
a Financial Officer of Borrower, consisting of consolidated






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(i) unaudited balance sheets as of the close of such Fiscal Month and the related statements
of income for that portion of the Fiscal Year ending as of the close of such Fiscal Month and
(ii) unaudited statements of income for such Fiscal Month, setting forth in comparative form the
figures for the corresponding period in the prior year and the figures contained in the Business
Plan for such Fiscal Year. Such financial information shall be accompanied by the certification of
a Financial Officer of Borrower that such financial information and any other information presented
is true, correct and complete in all material respects and that there was no Default or Event of
Default has occurred and is continuing as of such time or, if a Default or Event of Default has
occurred and is continuing, describing the nature thereof and all efforts undertaken to cure such
Default or Event of Default.




          (b) Quarterly Financials. To Agent and Lenders, within forty-five (45) days after the
end of the first three Fiscal Quarters of each Fiscal Year, consolidated financial information
regarding Borrower and its consolidated Subsidiaries, certified by a Financial Officer of Borrower,
including (i) unaudited balance sheets as of the close of such Fiscal Quarter and the related
statements of income and cash flow for that portion of the Fiscal Year ending as of the close of
such Fiscal Quarter and (ii) unaudited statements of income and cash flows for such Fiscal Quarter,
in each case setting forth in comparative form the figures for the corresponding period in the
prior year and the figures contained in the Business Plan for such Fiscal Year, all prepared in
accordance with GAAP (subject to normal year-end adjustments). Such financial information shall be
accompanied by (A) a statement in reasonable detail (each, a “Compliance Certificate”)
showing the calculations used in determining compliance with each of the Financial Covenants that
is tested on a quarterly basis and (B) the certification of a Financial Officer of Borrower that
(i) such financial information fairly presents, in all material respects in accordance with GAAP
(except as approved by accountants or officers, as the case may be, and disclosed in reasonable
detail therein, including the economic impact of such exception (it being understood that any
financial covenants or tests under this Agreement shall be calculated without giving effect to any
such non-compliance with GAAP), and subject to normal year-end adjustments and the absence of
footnote disclosure), the financial position, results of operations and statements of cash flows of
Borrower and its Subsidiaries, on a consolidated basis, as at the end of such Fiscal Quarter and
for that portion of the Fiscal Year then ended, (ii) any other information presented is true,
correct and complete in all material respects and that there was no Default or Event of Default has
occurred and is continuing as of such time or, if a Default or Event of Default has occurred and is
continuing, describing the nature thereof and all efforts undertaken to cure such Default or Event
of Default. In addition, Borrower shall deliver to Agent and Lenders, within forty-five (45) days
after the end of each Fiscal Quarter, a management discussion and analysis that includes a
comparison to budget for that Fiscal Quarter and a comparison of performance for that Fiscal
Quarter to the corresponding period in the prior year.




          (c) Annual Audited Financials. To Agent and Lenders, within ninety (90) days after
the end of each Fiscal Year, audited Financial Statements for Borrower and its consolidated
Subsidiaries on a consolidated basis consisting of balance sheets and statements of income and
retained earnings and cash flows, setting forth in comparative form in each case the figures for
the previous Fiscal Year, which Financial Statements shall be prepared in accordance with GAAP
(except as approved by accountants or officers, as the case may be, and disclosed in reasonable
detail therein, including the economic impact of such exception (it being understood






74









 







that any financial covenants or tests under this Agreement shall be calculated without giving
effect to any such non-compliance with GAAP)) and certified without qualification as to
going-concern or qualification arising out of the scope of the audit (except that such opinion may
be qualified with a “going concern” or like qualification or exception solely as a result of the
impending Commitment Termination Date or the termination date under the Revolving Loan Credit
Agreement), by an independent certified public accounting firm of national standing or otherwise
acceptable to Agent. Such Financial Statements shall be accompanied by (i) a statement prepared in
reasonable detail showing the calculations used in determining compliance with each of the
Financial Covenants and internal management reporting showing operating results by “product group”,
(ii) a report from such accounting firm to the effect that, in connection with their audit
examination, nothing has come to their attention to cause them to believe that a Default or Event
of Default has occurred with respect to the Financial Covenants (or specifying those Defaults and
Events of Default that they became aware of), it being understood that such audit examination
extended only to accounting matters and that no special investigation was made with respect to the
existence of Defaults or Events of Default and (iii) the certification of a Financial Officer of
Borrower that all such Financial Statements fairly present, in all material respects in accordance
with GAAP, the financial position, results of operations and statements of cash flows of Borrower
and each of its Subsidiaries on a consolidated basis, as at the end of such Fiscal Year and for the
period then ended, and that no Default or Event of Default has occurred and is continuing as of
such time or, if a Default or Event of Default has occurred and is continuing, describing the
nature thereof and all efforts undertaken to cure such Default or Event of Default.




     Notwithstanding the financial statement reporting periods set forth in clauses (a), (b) and
(c) above and the related comparable prior period comparative forms, Borrower may deliver or cause
to be delivered such financial statements as are prescribed under GAAP taking into account
Borrower’s “fresh start” accounting as applicable in connection with the effectiveness of the Plan
of Reorganization.



     Information required to be delivered pursuant to this Sections 5.1(a), (b) or
(c) shall be deemed to have been delivered to Agent and the Lenders on the date on which
Borrower provides written notice to Agent that such information has been posted on Borrower’s
website on the Internet at http://www.visteon.com or is available via the EDGAR system of the SEC
on the Internet (to the extent such information has been posted or is available as described in
such notice). Information required to be delivered pursuant to this Section 5.1 may also
be delivered by electronic communication pursuant to procedures approved hereunder.



          (d) Business Plan. To Agent and Lenders, as soon as available, but not later than
forty-five (45) days after the end of each Fiscal Year, an annual business plan for Borrower, on a
consolidated basis, approved by the board of directors of Borrower for the following Fiscal Year,
which (i) includes a statement of all of the material assumptions on which such plan is based,
(ii) includes quarterly balance sheets, income statements and statements of cash flows for the
following year and (iii) integrates sales, gross profits, operating expenses, operating profit,
cash flow projections, all prepared on the same basis and in similar detail as that on which
operating results are reported (and in the case of cash flow projections, representing management’s
good faith estimates of future financial performance based on historical performance), and
including plans for personnel, Capital Expenditures and facilities. The






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projections and pro forma financial information contained in the materials referenced above
are based upon good faith estimates and assumptions believed by management of Borrower to be
reasonable at the time made, it being acknowledged and agreed by the Lenders that (a) such
financial information as it relates to future events is not to be viewed as fact and that actual
results during the period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount, (b) the financial and business
projections furnished to Agent or the Lenders are subject to significant uncertainties and
contingencies, which may be beyond the control of Borrower and its Subsidiaries, (c) no assurances
are given by any of Borrower or its Subsidiaries that the results forecasted in the projections
will be realized and (d) the actual results may differ from the forecasted results in such
projections and such differences may be material.




          (e) Management Letters. To Agent and Lenders, within five (5) Business Days after
receipt thereof by any Credit Party, copies of all final management letters, exception reports or
similar letters or reports received by such Credit Party from its independent certified public
accountants.




          (f) Default Notices. To Agent and Lenders, as soon as practicable, and in any event
within five (5) Business Days after a Financial Officer of Borrower has actual knowledge of the
existence of any Default, Event of Default or other event that has had a Material Adverse Effect,
telephonic or telecopied or electronic notice specifying the nature of such Default or Event of
Default or other event, including the anticipated effect thereof, which notice, if given
telephonically, shall be promptly confirmed in writing on the next Business Day.




          (g) SEC Filings and Press Releases. To Agent and Lenders, promptly upon their
becoming available, copies of: (i) all Financial Statements, reports, notices and proxy statements
made publicly available by any Credit Party to its security holders (in their capacity as such);
and (ii) all regular and periodic reports and all registration statements and prospectuses, if any,
filed by any Credit Party with any securities exchange or with the SEC or any governmental or
private regulatory authority; provided, that in each case, such delivery shall be deemed to
have been made upon delivery of notice to Agent that such statements and reports are available via
the EDGAR System of the SEC on the Internet.




          (h) Intentionally Omitted.




          (i) Litigation. To Agent in writing, promptly upon learning thereof, notice of any
Litigation commenced or threatened in writing against any Credit Party that (i) could reasonably be
expected to result in damages in excess of $50,000,000 (net of insurance coverages for such
damages), (ii) seeks injunctive relief, (iii) is asserted or instituted against any Plan or any
Foreign Plan, its fiduciaries or its assets or against any Credit Party or ERISA Affiliate in
connection with any Plan or Foreign Plan or (iv) involves any product recall that could reasonably
be expected to have a Material Adverse Effect.




          (j) Insurance Notices. To Agent, disclosure of losses or casualties required by
Section 6.4.







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          (k) Other Documents. To Agent and Lenders, such other financial and other information
respecting any Credit Party’s or any Subsidiary of any Credit Party’s business or financial
condition as Agent or any Lender shall from time to time reasonably request.




          (l) Intentionally Omitted.




          (m) Environmental Matters. To Agent, notice of any matter under any Environmental Law
that has resulted or could reasonably be expected to result in a Material Adverse Effect, including
arising out of or resulting from the commencement of, or any material adverse development in, any
litigation or proceeding affecting any Credit Party or any Restricted Subsidiary, including
pursuant to any applicable Environmental Laws or the assertion or occurrence of any alleged
noncompliance by any Credit Party or as any of its Restricted Subsidiaries with any Environmental
Law.




          (n) ERISA/Pension Matters. To Agent, notice of (i) the occurrence of any ERISA Event
(or similar event with respect to a Foreign Plan) that has resulted or could reasonably be expected
to result in a liability of Borrower and its Restricted Subsidiaries in an aggregate amount
exceeding $5,000,000 and (ii) any “financial support direction or contribution notice” under any
Foreign Plan (including, without limitation, the “Visteon UK Pension Plan”).




     5.2 Collateral Reporting. Each Credit Party executing this Agreement hereby agrees
that, from and after the Closing Date and until the Termination Date, it shall deliver to Agent or
to Agent and Lenders, as required, the following Collateral Reports at the times, to the Persons
and in the manner set forth below:



          (a) To Agent, at the time of delivery of each of the quarterly or annual Financial Statements
delivered pursuant to Section 5.1 a list of any applications for the registration of any
Patent, Trademark or Copyright filed by any Credit Party with the United States Patent and
Trademark Office, the United States Copyright Office or any similar office or agency in the prior
Fiscal Quarter; and




          (b) Such other reports, statements and reconciliations with respect to the Collateral or
Obligations of any or all Credit Parties as Agent shall from time to time request in its Permitted
Discretion.




     5.3 Fresh Start Accounting Financial Statements. Within ninety (90) days of the
Closing Date, Agent shall have received a pro forma consolidated balance sheet and any other
applicable financial statements of Borrower and its Subsidiaries prepared on a fresh-start
accounting basis as of the last date prior to the Closing Date for which financial statements are
available. Within one-hundred eighty (180) days of the Closing Date, Agent shall have received a
pro forma consolidated balance sheet and any other applicable financial statements of Borrower and
its Subsidiaries prepared on a fresh-start accounting basis as of the last date prior to the
Closing Date for which financial statements are available, together with a certificate from a
Financial Officer of Borrower certifying that such balance sheet and other financial statements
fairly present, in all material respects, the financial position of Borrower and its Subsidiaries,
in accordance with GAAP subject to the absence of footnotes solely with respect to unaudited
financial statements, as of such date.



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6. AFFIRMATIVE COVENANTS




     Each Credit Party executing this Credit Agreement jointly and severally agrees as to all
Credit Parties that from and after the Closing Date and until the Termination Date:



     6.1 Maintenance of Existence and Conduct of Business. Except as otherwise permitted
under Section 7.1, each Credit Party shall, and shall cause each of its Restricted
Subsidiaries to, do or cause to be done all things necessary to preserve and keep in full force and
effect (a) its corporate existence and (b) its material rights and franchises except where the
failure to maintain such material rights and franchises could not reasonably be expected to result
in a Material Adverse Effect; continue to conduct its business substantially as now conducted or as
otherwise permitted hereunder (including under Section 7.5); at all times maintain,
preserve and protect all of its assets and properties used or useful in the conduct of its
business, and keep the same in good repair, working order and condition in all material respects
(taking into consideration ordinary wear and tear and except for casualties and condemnations) and
from time to time make, or cause to be made, all necessary or appropriate repairs, replacements and
improvements thereto consistent with industry practices, except where the failure to do so could
not reasonably be expected to result in a Material Adverse Effect.



     6.2 Payment of Charges and Taxes.



          (a) Subject to Section 6.2(b), each Credit Party shall pay and discharge or cause to
be paid and discharged promptly all material Charges and Taxes (other than charges in an aggregate
amount not to exceed $2,000,000) payable by it, including: (i) Charges and Taxes imposed upon it,
its income and profits, or any of its property (real, personal or mixed) and all Charges with
respect to tax, social security, employer contributions and unemployment withholding with respect
to its employees; (ii) lawful claims for labor, materials, supplies and services or otherwise; and
(iii) all storage or rental charges payable to warehousemen or bailees, in each case, before any
thereof shall become past due.




          (b) Each Credit Party may in good faith contest, by appropriate proceedings, the validity or
amount of any Charges, Taxes or claims described in Section 6.2(a) and not pay or discharge
such Charges, Taxes or claims while so contested; provided, that: (i) adequate reserves
with respect to such contest are maintained on the books of such Credit Party, in accordance with
GAAP; (ii) no Lien shall be imposed to secure payment of such Charges (other than payments to
warehousemen and/or bailees or as permitted under Section 7.7) that is superior to any of
the Liens securing the Obligations and such contest is maintained and prosecuted continuously and
with diligence and operates to suspend collection or enforcement of such Charges; (iii) none of the
Collateral becomes subject to forfeiture or loss as a result of such contest; (iv) such non-payment
could not reasonably be expected to have a Material Adverse Effect; and (v) such Credit Party shall
promptly pay or discharge such contested Charges, Taxes or claims and all additional charges,
interest, penalties and expenses, if any, and shall deliver to Agent evidence reasonably acceptable
to Agent of such compliance, payment or discharge, if such contest is terminated or discontinued
adversely to such Credit Party or the conditions set forth in this Section 6.2(b) are no
longer met.




     6.3 Books and Records. Each Credit Party shall keep adequate books and records



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with respect to its business activities in which proper entries, reflecting all financial
transactions, are made in accordance with GAAP and on a basis consistent with the Financial
Statements provided on the Closing Date attached to a certificate of a Financial Officer of
Borrower.




     6.4 Insurance; Damage to or Destruction of Collateral.



          (a) Borrower will, and will cause each of its Restricted Subsidiaries to, maintain, with
financially sound and reputable insurance companies insurance in such amounts and against such
risks, as are customarily maintained by similarly situated companies engaged in the same or similar
businesses operating in the same or similar locations (after giving effect to any self-insurance
reasonable and customary for similarly situated companies). Borrower will furnish to Agent, upon
request, information in reasonable detail as to the insurance so maintained, including, without
limitation, for any Mortgaged Property, Flood Insurance equal to the least of (i) the full, unpaid
balance of the Term Loans and any prior liens on the Mortgaged Property, (ii) the maximum amount of
coverage available under the National Flood Insurance Program for the particular type of building
or (iii) the full insurable value of the building and/or its contents, in each case with
deductibles customarily carried by businesses of the size, character and creditworthiness of the
business of the Credit Parties.




          (b) Borrower will, and will cause each of the other Credit Parties to, at all times keep its
property which constitutes Collateral insured in favor of Agent, and all policies or certificates
(or certified copies thereof) with respect to such insurance (i) shall be endorsed to Agent’s
reasonable satisfaction for the benefit of Agent (including, without limitation, by naming Agent as
loss payee and/or additional insured) and (ii) shall state that such insurance policies shall not
be canceled without at least thirty (30) days’ prior written notice thereof by the respective
insurer to Agent (or at least ten (10) days’ prior written notice in the case of non-payment of
premium).




          (c) If Borrower or any of its Subsidiaries shall fail to maintain insurance in accordance with
this Section 6.4, or if Borrower or any of its Subsidiaries shall fail to so endorse all
policies or certificates with respect thereto, Agent shall have the right, upon ten (10) days’
prior notice to Borrower (but shall be under no obligation), to procure such insurance and Borrower
agrees to reimburse Agent for all reasonable costs and reasonable out-of-pocket expenses of
procuring and maintaining such insurance.




          (d) Sections 6.4(b) and (c) shall only apply to insurance in respect of assets
included in the Collateral; provided, however, Sections 6.4 (b) and
(c) shall not apply to credit insurance.




          (e) Notwithstanding anything to the contrary contained in this Section 6.4, with
respect to any Revolver Priority Collateral, the provisions of this Section 6.4 shall be
subject to the terms and conditions of the Revolving Loan Credit Documents and the Intercreditor
Agreement.




     6.5 Compliance with Laws and Contractual Obligations. Each Credit Party shall, and
shall cause each of its Restricted Subsidiaries to, comply with all United States federal, state
and local laws, regulations and decrees and all foreign laws, regulations and decrees, in each
case,



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applicable to it, including those relating to ERISA, and employment and labor matters (except
those relating to Environmental Laws and Environmental Permits which are covered by Section
6.8), and its Contractual Obligations, except to the extent that the failure to comply,
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.




     6.6 Intentionally Omitted.



     6.7 Intellectual Property. Each Credit Party shall, and shall cause each of its
Restricted Subsidiaries to, conduct its business and affairs without infringement of any
Intellectual Property of any other Person that could reasonably be expected to result in a Material
Adverse Effect and shall comply in all material respects with the terms of its Licenses.



     6.8 Environmental Matters.



          (a) Except in each of the following cases to the extent the failure to do so could not in the
aggregate reasonably be expected to result in a Material Adverse Effect, each Credit Party shall,
and shall (i) cause its Restricted Subsidiaries to, comply in all material respects with, and
ensure compliance in all material respects by all tenants and subtenants, if any, with, all
applicable Environmental Laws, and obtain and comply in all material respects with and maintain,
and (ii) use commercially reasonable efforts to ensure that all tenants and subtenants obtain and
comply in all material respects with and maintain, any and all Environmental Permits.




          (b) Except to the extent the failure to do so could not in the aggregate reasonably be
expected to result in a Material Adverse Effect, conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required under Environmental Laws
and promptly comply in all material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws.




     6.9 Real Estate Purchases. To the extent otherwise permitted hereunder, if any Credit
Party proposes to acquire a fee ownership interest in Real Estate after the Closing Date, with a
fair market purchase price in excess of $5,000,000, it shall first provide to Agent a mortgage or
deed of trust granting Agent a first priority Lien (subject to Permitted Encumbrances) on such Real
Estate (unless such Real Estate is Eligible Real Estate, in which case it will be a second priority
Lien), together with existing environmental audits, Title Insurance (except insuring a first
priority Lien, if applicable), a Mortgage Opinion, and, if required by Agent, Flood Insurance, and
such other customary documents, instruments or agreements reasonably requested by Agent, in each
case, in form and substance reasonably satisfactory to Agent; provided, that the foregoing
shall not be required to the extent the Real Estate at issue is located outside of the United
States and the granting of such mortgage or deed of trust would result in a material adverse tax
consequence to any Credit Party or to the extent such mortgage is not permitted by applicable law;
provided, however, that utilization of the net operating losses of the Credit
Parties shall be excluded from Borrower’s determination of whether any mortgage would result in
materially adverse tax consequences to the Credit Parties.



     6.10 Further Assurances. Each Credit Party executing this Agreement agrees that it
shall and shall cause each other Credit Party to, at such Credit Party’s reasonable expense and
upon the reasonable request of Agent, duly execute and deliver, or cause to be duly executed and



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delivered, to Agent such further instruments and take all such further actions (including the
authorization of filing and recording of Code financing statements (or any similar filings required
under the foreign personal property security laws of Mexico), fixture filings, mortgages, deeds of
trust and other documents, in each case, to the extent reasonably requested by Agent), which may be
required under any applicable law, or which Agent may reasonably request, to effectuate the
transactions contemplated by the Loan Documents or to grant, preserve, protect or perfect the Liens
created by the Collateral Documents or the validity or priority of any such Liens, all at the
reasonable expense of the Credit Parties.




     6.11 Credit Ratings. Borrower shall use commercially reasonable efforts (a) to cause
a public corporate credit rating and a facility rating (or the equivalents thereof) in respect of
the Term Loans to be issued by S&P and Moody’s within 60 days of the Closing Date and to be
maintained thereafter until the Commitment Termination Date and (b) to cause that each such rating
is updated or confirmed at least once per year so long as S&P and Moody’s are providing such yearly
updates and confirmations in the ordinary course.



     6.12 Interest Rate Protection. No later than ninety (90) days following the Closing
Date and at all times thereafter until the third anniversary of the Closing Date, Borrower shall
obtain and cause to be maintained protection against fluctuations in interest rates pursuant to one
or more Swap Contracts (which may be successive one year Swap Contracts) in form and substance
reasonably satisfactory to Agent, in order to ensure that no less than fifty percent (50%) of the
aggregate principal amount of the total Indebtedness under the Term Loans then outstanding is
either (i) subject to such Swap Contracts or (ii) Indebtedness that bears interest at a fixed rate.



     6.13 ERISA Matters. Each Credit Party executing this Agreement agrees that it shall
and shall cause each other Credit Party and their Restricted Subsidiaries to timely make all
contributions, pay all amounts due, and otherwise perform such actions necessary to cause the
release of any Liens imposed under ERISA or Section 412 of the IRC or any similar provision under
any Foreign Plan (each an “ERISA Lien”).



     6.14 Stock of First-Tier Foreign Subsidiaries. Except with respect to the Stock of
Immaterial Subsidiaries and Excluded Domestic Subsidiaries, Borrower shall cause the Stock of each
Foreign Subsidiary directly owned by Borrower or a Domestic Subsidiary now existing or hereafter
created or acquired to be held directly or indirectly by a Foreign Stock Holding Company at all
times; provided, however, Foreign Stock Holding Companies may hold the Stock of other Foreign Stock
Holding Companies.



     6.15 New Subsidiaries.



          (a) Within ten (10) Business Days of the formation of any Restricted Subsidiary of any Credit
Party, acquisition of a Restricted Subsidiary of any Credit Party or at any time a Subsidiary
becomes a Restricted Subsidiary, Credit Parties, or any of them, as appropriate, shall (i) cause
each such new Restricted Subsidiary that is a Domestic Subsidiary (other than an Excluded Domestic
Subsidiary) to join this Agreement as a Credit Party by providing to Agent a joinder agreement, in
form and substance reasonably satisfactory to Agent, (ii) cause each such new Restricted Subsidiary
that is a Domestic Subsidiary (other than an






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Excluded Domestic Subsidiary) to deliver to Agent a Guaranty, a supplement to the Security
Agreement, a supplement to the Pledge Agreement, and such other security documents (including,
without limitation, any mortgage, deed to secure debt or deed of trust where such Restricted
Subsidiary owns real property and an appraisal (which shall be compliant with FIRREA to the extent
required by applicable law as determined by Agent) and Flood Insurance with respect to any
Mortgaged Property as required by Section 6.9, as applicable) reasonably requested by
Agent, together with appropriate UCC-1 financing statements, all in form and substance reasonably
satisfactory to Agent, (iii) with respect to all new Restricted Subsidiaries that are directly
owned in whole or in part by a Credit Party, provide to Agent a supplement to the Pledge Agreement
providing for the pledge of the direct and beneficial interests in such new Restricted Subsidiary
(or, in the case of the pledge of a direct Foreign Subsidiary, sixty-five percent (65%) of the
total combined voting power of all classes of the issued and outstanding voting Stock of such
Foreign Subsidiary and one-hundred percent (100%) of the non-voting Stock of such Foreign
Subsidiary) as shall be requested by Agent, together with appropriate certificates and powers or
financing statements under the Code (or any similar document required under personal property
security laws of Mexico) or other applicable personal property or moveable property registries or
other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to
Agent, and (iv) provide to Agent all other customary and reasonable documentation, including one or
more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and
customary with respect to such execution and delivery of the applicable documentation referred to
above. Upon execution and delivery of the joinder agreement by each new Restricted Subsidiary,
such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as
if originally named as a Credit Party herein. The execution and delivery of the joinder agreement
shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations
of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition
of any Credit Party hereunder. Any document, agreement or instrument executed or issued pursuant
to this Section 6.15 shall be a “Loan Document” for purposes of this Agreement.




          (b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any
Subsidiary of Borrower shall be required to:




               (i) execute and deliver any joinder agreement, Guaranty or any other document or grant a Lien
in any Stock or other property held by it if such action (A) is restricted or prohibited by general
statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin
capitalization” rules or similar principles, (B) would result in material adverse tax consequences;
provided, however, that utilization of the net operating losses of the Credit
Parties shall be excluded from Borrower’s determination of whether any such joinder, pledge,
mortgage or other grant of security interest would result in material adverse tax consequences to
the Credit Parties, (C) is not within the legal capacity of Borrower or such Subsidiary or would
conflict with the fiduciary duties of its directors or contravene any legal prohibition or result
in personal or criminal liability on the part of any officer or (D) for reasons of cost, legal
limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders
of Borrower’s or such Subsidiary’s guaranty or security; or



               (ii) pledge as Collateral any assets excluded therefrom pursuant to the relevant Collateral
Documents (including, for the avoidance of doubt, more than 65% of the total



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combined voting power of all classes of the issued and outstanding Stock entitled to vote
(within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned
by Borrower or any of the Credit Parties which is a Domestic Subsidiary.




     6.16 Designation of Subsidiaries. A Financial Officer of Borrower may at any time
designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as
a Restricted Subsidiary; provided that (a) immediately before and after such designation,
no Default or Event of Default shall have occurred and be continuing, (b) immediately after giving
effect to such designation, Borrower and its Restricted Subsidiaries shall be in compliance, on a
Pro Forma Basis after giving effect to such designation, with the Financial Covenants (and, as a
condition precedent to the effectiveness of any such designation, Borrower shall deliver to Agent a
certificate setting forth in reasonable detail the calculations demonstrating such compliance), and
(c) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted
Subsidiary” for the purpose of the Revolving Loan Credit Agreement; provided,
however, under no circumstances shall the aggregate amount of EBITDA of all Unrestricted
Subsidiaries at any time exceed 10% of the EBITDA of Borrower and its Restricted Subsidiaries on a
consolidated basis. The designation of any Subsidiary as an Unrestricted Subsidiary shall
constitute an Investment by Borrower or the relevant Restricted Subsidiary (as applicable) therein
at the date of designation in an amount equal to the fair market value of all of such Person’s
assets and the Investment resulting from such designation must otherwise be in compliance with
Section 7.2. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary
shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such
Subsidiary existing at such time. Notwithstanding anything to the contrary contained herein, none
of the Foreign Stock Holding Companies, any “Borrower” (as defined under the Revolving Loan Credit
Agreement) or any other Subsidiary listed on Schedule (6.16) as not being permitted to be
an Unrestricted Subsidiary shall be designated as an Unrestricted Subsidiary. As of the Closing
Date, the Unrestricted Subsidiaries of Borrower are set forth on Schedule (6.16).



     6.17 Post-Closing Matters. Execute and deliver the documents and complete the tasks
set forth on Schedule (6.17), in each case within the time limits specified on such
schedule, as such time limits may be extended from time to time by Agent in its sole and absolute
discretion.



7. NEGATIVE COVENANTS




     Each Credit Party executing this Agreement jointly and severally agrees as to all Credit
Parties and their respective Restricted Subsidiaries that from and after the Closing Date until the
Termination Date:



     7.1 Mergers, Fundamental Changes, Etc. No Credit Party shall, or shall permit any of
its Restricted Subsidiaries to, directly or indirectly, by operation of law or otherwise, 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 Borrower may be merged or consolidated with or into Borrower (provided
that Borrower shall be the continuing or surviving entity) or with or into any






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Subsidiary Guarantor (provided that such Subsidiary Guarantor shall be the continuing or
surviving entity);




          (b) any Subsidiary of Borrower that is not a Subsidiary Guarantor may be merged or
consolidated with or into any other Subsidiary of Borrower that is not a Subsidiary Guarantor;
provided that if one Subsidiary to such merger or consolidation is a Wholly Owned Subsidiary, the
Wholly Owned Subsidiary shall be the continuing or surviving entity;




          (c) any Subsidiary of Borrower may Dispose of any or all of its assets (i) to Borrower or any
Subsidiary Guarantor (upon voluntary liquidation or otherwise), (ii) to a Subsidiary that is not a
Subsidiary Guarantor if the Subsidiary making the Disposition is not a Subsidiary Guarantor;
provided that any such Disposition by a Wholly Owned Subsidiary must be to a Wholly Owned
Subsidiary, or (iii) pursuant to a Disposition permitted by Section 7.8;




          (d) any Investment expressly permitted by Section 7.2 may be structured as a merger,
consolidation or amalgamation;




          (e) any Subsidiary may be dissolved or liquidated so long as any Dispositions in connection
with any such liquidation or dissolution are permitted under Section 7.1(c); and




          (f) any Permitted Restructuring Transactions shall be permitted.




     7.2 Investments; Loans and Advances. No Credit Party shall, or shall permit any of
its Restricted Subsidiaries to, directly or indirectly, make any advance, loan, extension of credit
(by way of guaranty or otherwise) or capital contribution to, or purchase any Stock, bonds, notes,
debentures or other debt securities of, or any assets constituting a business unit of, or make any
other investment in, any Person (all of the foregoing, “Investments”), except:



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




          (b) Investments in Cash Equivalents in the ordinary course of business in connection with the
cash management activities of Borrower and its Subsidiaries;




          (c) Guarantied Obligations permitted by Section 7.3;




          (d) loans and advances to employees of any Group Member in the ordinary course of business
(including for travel, entertainment and relocation expenses) in an aggregate amount for all Group
Members not to exceed $2,000,000 at any one time outstanding;




          (e) intercompany Investments among the Credit Parties;




          (f) intercompany Investments by Subsidiaries which are not Credit Parties (including, without
limitation, Foreign Subsidiaries) in Credit Parties and intercompany Investments by Subsidiaries
which are not Credit Parties (including, without limitation, Foreign Subsidiaries) in other
Subsidiaries which are not Credit Parties (including, without limitation, Foreign Subsidiaries);







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          (g) intercompany loans from Credit Parties to Subsidiaries which are not Credit Parties in an
aggregate amount, as of any date, not to exceed the sum (such sum, the “Non-Credit Party
Intercompany Debt Basket”) of (i) $150,000,000 in the aggregate plus (ii) an amount
(such amount, the “Investment Available Amount”) equal to the sum of (A) cash intercompany
loans or cash dividends from Subsidiaries which are not Credit Parties received by Credit Parties
after the Closing Date and repayment in cash by Subsidiaries which are not Credit Parties of
intercompany loans owing to any Credit Party (it being understood that such intercompany loans may
not be repaid or prepaid to the extent that such prepayment would cause the Investment Basket to be
a negative amount) plus (B) 50% of the Net Cash Proceeds received by any Credit Party from
any asset sale permitted under Section 7.8(p) minus (iii) the aggregate amount of
Investments made pursuant to clause (h) of this Section 7.2 on or prior to such
date utilizing the Investment Available Amount;




          (h) (i)Investments in an aggregate outstanding amount (including assumed Indebtedness) not to
exceed the sum (such sum, the “Investment Basket”) of (1) $100,000,000 in the aggregate,
plus (2) the Investment Available Amount plus (3) the Net Cash Proceeds of an
issuance of Stock of Borrower which was Not Otherwise Applied, minus (4) the aggregate
amount of Investments made pursuant to clause (g) of this Section 7.2 on or prior
to such date utilizing the Investment Available Amount and/or (ii) Investments in an aggregate
amount equal to 25% (or minus 100% in the case of a loss) of Borrower’s and its Restricted
Subsidiaries’ Consolidated Net Income for the period commencing as of the Closing Date and ending
on the last day of the Fiscal Quarter most recently ended for which Financial Statements are
available less Restricted Payments made pursuant to Section 7.14(e)(ii) (it being
understood that the calculation of the amount of Investments permitted pursuant to this clause
(h)(ii)shall be made at the time the relevant Investment is made and include a deduction for
any other outstanding Investments made in reliance on this clause (ii), but no Default or
Event of Default shall occur as a result of a decrease in Consolidated Net Income after the
consummation of any such Investment. Notwithstanding anything to the contrary herein, Investments
may be made by aggregating the amounts provided by Sections 7.2(h)(i) and (h)(ii)
hereof;




          (i) (i) Investments in Stock of Joint Ventures and Halla pursuant to terms reasonably
satisfactory to Agent in an amount not to exceed $75,000,000 in the aggregate after the Closing
Date and (ii) Investments by Halla and its Subsidiaries;




          (j) Investments existing as of the Closing Date as set forth on Schedule (7.2) and any
modification, replacement, renewal or extension thereof, provided that the original amount of such
Investments are not increased except as otherwise permitted by this Section 7.2;




          (k) Permitted Acquisitions;




          (l) Investments resulting from entering into Swap Contracts permitted by Section 7.17;




          (m) Investments in the ordinary course of business consisting of endorsements of instruments
for collection or deposit;







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          (n) Investments received in connection with the bankruptcy or reorganization of any Person or
in settlement of obligations of, or disputes with, any Person arising in the ordinary course of
business and upon foreclosure with respect to any secured Investment or other transfer of title
with respect to any secured Investment;




          (o) advances of payroll payments to employees in the ordinary course of business;




          (p) Investments arising out of the receipt by Borrower or any of its Subsidiaries of
promissory notes and non-cash consideration for the Disposition of assets permitted under
Section 7.8; provided that the aggregate amount of such Investments shall not
exceed the greater of (i) $100,000,000 in the aggregate and (ii) the non-cash consideration for any
such Disposition shall not exceed 20% of the total consideration therefor;




          (q) Investments the consideration for which consists of the issuance of newly issued Stock of
Borrower;




          (r) Capital Expenditures permitted under Section 7.10;




          (s) [intentionally omitted];




          (t) so long as no Default or Event of Default would result therefrom, Investments by Credit
Parties in non-Credit Parties in an aggregate amount not to exceed $10,000,000;




          (u) non-cash Investments resulting from (A) the write-down of any intercompany loans existing
on the Closing Date made by Borrower or its Subsidiaries to Visteon Brazil Trading Co. LTD and/or
Visteon Caribbean, Inc. and (B) the transfer of Visteon S.A. (Argentina) aged intercompany payables
to Borrower from Subsidiaries of Borrower and the subsequent write-off of such aged intercompany
payables;




          (v) Investments by Foreign Subsidiaries or any Investments by a Securitization Subsidiary in
any other Person in connection with a Permitted Receivables Financing, including Investments of
funds held in accounts permitted or required by the arrangement governing such Permitted
Receivables Financing or any related Indebtedness;




          (w) Investments received in connection with (i) sale, transfer or other Disposition of
Receivables, any Related Security and any Other Securitization Assets by the Securitization
Subsidiary and (ii) the purchase or other acquisition by, or transfer to, the Securitization
Subsidiary of Receivables, any Related Security and any Other Security Assets in each case in
connection with the origination, servicing or collection of such Receivables, Related Security or
Other Securitization Assets;




          (x) (i) Investments in or acquisition of assets and associated business at Visteon Automotive
Systems India represented by interiors and electronics business (IES) produced at facilities
located in Chennai and Pune, India. The Investment in or acquisition of, may occur in one or more
asset transfers, purchases and/or sales that will be not less than cash-neutral to the Credit
Parties when taken in consideration with the other Halla Transactions






86









 







occurring after the Closing Date and (ii) Investments in, or acquisition of Visteon Interiors
Korea by Duck Yang Industries Co., LTD.;




          (y) Investments in assets useful in the business of Borrower and its respective Subsidiaries
made by Borrower and it respective Subsidiaries (or any of them) with the proceeds of any
Disposition permitted to be reinvested or not required as a prepayment under Section 2.3(b)
so long as such proceeds are reinvested in like assets of Borrower (e.g., Investments for
Investments or Permitted Acquisitions, current assets for current assets, fixed assets for fixed
assets, etc.);




          (z) Investments consisting of the retained interest (including, without limitation,
subordinated Indebtedness) of sellers of Receivables in connection with any Permitted Receivables
Financing;




          (aa) guaranties by Borrower or any of its Subsidiaries of leases, contracts or of other
obligations that do not constitute Indebtedness and are unsecured, in each case entered into in the
ordinary course of business;




          (bb) intercompany Investments among Restricted Subsidiaries made pursuant to a Permitted
Restructuring Transaction;




          (cc) Investments constituting (i) Sale-Leaseback Transactions permitted under Section
7.12 or (ii) Restricted Payments permitted under Section 7.14; and




          (dd) Investments in accordance with Section 2.3(f).




     7.3 Indebtedness. No Credit Party shall, or shall permit any of its Restricted
Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, except (without
duplication):



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




          (b) Indebtedness of any Credit Party under the Revolving Loan Credit Documents;
provided that the aggregate principal amount of such Indebtedness shall not exceed the
“Revolver Cap” (as defined in the Intercreditor Agreement);




          (c) unsecured Indebtedness of any Credit Party owed to any other Credit Party or to any
Subsidiary which is not a Credit Party and Indebtedness of any Subsidiary that is not a Credit
Party owed to any Credit Party, in each case, to the extent permitted by Sections 7.2(e),
(f), (g), (h) and (j); provided that all such Indebtedness shall be
evidenced by a subordinated intercompany note in the form of Exhibit 7.3(c);




          (d) Indebtedness of any Foreign Subsidiary owed to any other Foreign Subsidiary;




          (e) Indebtedness outstanding on the Closing Date and listed on Schedule (7.3(e)) and
any refinancings, refundings, renewals or extensions thereof (without shortening the maturity of,
or increasing the principal amount of all Indebtedness listed thereon);







87









 








          (f) Indebtedness of any Foreign Subsidiaries (other than Halla and its Subsidiaries) up to an
aggregate amount not to exceed $100,000,000 at any one time outstanding and any refinancings,
refundings, renewals, reallocations or extensions thereof; provided that any new credit facility
refinancing or replacing any such Indebtedness does not cause the aggregate amount available under
all such credit facilities to exceed $100,000,000;




          (g) Indebtedness of Foreign Subsidiaries under Permitted Factoring Programs and Permitted
Receivables Financing incurred after the Closing Date (excluding Indebtedness of a Securitization
Subsidiary owed to any Foreign Subsidiary or of any Foreign Subsidiary owed to a Securitization
Subsidiary) in an aggregate amount not to exceed $100,000,000 at any one time outstanding (without
regard to adverse changes in the exchange rate) in the aggregate plus an additional
$50,000,000 at any one time outstanding (without regard to adverse changes in the exchange rate) in
the aggregate if purchase orders of Visteon Sistemas Interiores Espana, S.L. have not been
transferred to Visteon Electronics Corporation;




          (h) Indebtedness under letters of credit issued on behalf of Foreign Subsidiaries in an
aggregate amount not to exceed $35,000,000 at any one time outstanding;




          (i) Indebtedness of Halla and its Subsidiaries in an amount not to exceed, when combined with
all other outstanding Indebtedness of Halla and its Subsidiaries, $350,000,000 at any one time
outstanding (inclusive of any Indebtedness outstanding on the Closing Date);




          (j) Indebtedness incurred in the ordinary course of business in connection with cash pooling,
netting and cash management arrangements consisting of overdrafts or similar arrangements; provided
that any such Indebtedness does not consist of Indebtedness for borrowed money and is owed to the
financial institutions providing such arrangements and such Indebtedness is extinguished in
accordance with customary practices with respect thereto;




          (k) Capital Lease Obligations and purchase money Indebtedness of Borrower or any of its
Restricted Subsidiaries in an aggregate amount not to exceed $40,000,000 at any one time
outstanding;




          (l) Indebtedness in respect of Swap Contracts permitted under Section 7.17;




          (m) Indebtedness of Borrower consisting of (i) repurchase obligations with respect to Stock of
Borrower issued to directors, consultants, managers, officers and employees of Borrower and its
Subsidiaries arising upon the death, disability or termination of employment of such director,
consultant, manager, officer or employee to the extent such repurchase is permitted under
Section 7.14 and (ii) promissory notes issued by Borrower to directors, consultants,
managers, officers and employees (or their spouses or estates) of Borrower and its Subsidiaries to
purchase or redeem Stock of Borrower issued to such director, consultant, manager, officer or
employee to the extent such purchase or redemption is permitted under Section 7.14;
provided that (x) immediately before and after giving Pro Forma Effect to any Indebtedness,
no Event of Default has occurred and is continuing or would result therefrom and (y) the
aggregate principal amount of Indebtedness permitted to be incurred by this clause (m)
shall not exceed $5,000,000 per Fiscal Year and all such Indebtedness shall be unsecured;







88









 








          (n) Indebtedness incurred, acquired or assumed in connection with Permitted Acquisitions that
is either (i) unsecured and the final stated maturity date for such unsecured Indebtedness shall be
later than the Commitment Termination Date, or (ii) secured so long as (A) such Indebtedness was
not incurred in contemplation of the applicable Permitted Acquisition and (B) such Indebtedness is
secured only by assets of the Person acquired pursuant to the applicable Permitted Acquisition;
provided that (w) such Indebtedness does not exceed, in the aggregate $400,000,000 at any
one time outstanding, (x) no Event of Default shall have occurred and be continuing or immediately
result therefrom, (y) other than with respect to Indebtedness assumed in connection with Permitted
Acquisitions, the terms of such Indebtedness do not provide for any scheduled repayment, mandatory
redemption (other than pursuant to customary asset sales or change of control provisions requiring
redemptions) or sinking fund obligation prior to the Commitment Termination Date (or such later
date that is the final maturity date or any incremental extension of credit hereunder), (z)
Borrower shall be in Pro Forma Compliance with the Financial Covenants after giving effect to such
Permitted Acquisition and the assumption and/or incurrence of such Indebtedness;




          (o) Indebtedness arising out of Permitted Acquisitions and consisting of obligations of any
Group Member under provisions relating to indemnification, adjustment of purchase price with
respect thereto based on changes in working capital and earn-outs based on the income generated by
the assets acquired in any such Permitted Acquisition after the consummation thereof;




          (p) Indebtedness arising out of the issuance of surety, stay, customs or appeal bonds,
performance bonds and performance and completion guaranties, in each case incurred in the ordinary
course of business;




          (q) Guarantied Obligations and other obligations in respect of the Indebtedness of Joint
Ventures (i) that qualify as Subsidiaries (other than Halla); provided that the aggregate
principal amount of such Indebtedness shall not exceed $75,000,000 (or the equivalent thereof) at
any one time outstanding and (ii) which do not qualify as Subsidiaries in an amount not exceeding
$50,000,000 at any one time outstanding;




          (r) Indebtedness of Joint Ventures which are Subsidiaries of Borrower (other than Halla and
its Subsidiaries); provided that (i) the aggregate principal amount of such Indebtedness
shall not exceed $75,000,000 (or the equivalent thereof) at any one time outstanding and (ii) such
Indebtedness shall not be subject to any Lien or guaranty granted or incurred by Borrower or any
other Restricted Subsidiary (other than a Subsidiary of such Joint Venture);




          (s) Indebtedness consisting of the financing of insurance premiums in the ordinary course of
business with the providers of such insurance or their Affiliates;




          (t) additional unsecured Indebtedness not otherwise permitted hereunder not exceeding an
aggregate principal amount of $25,000,000 at any one time outstanding;







89









 








          (u) Indebtedness of the Credit Parties and their Restricted Subsidiaries arising under Capital
Leases entered into in connection with Sale-Leaseback Transactions permitted by Section
7.12;




          (v) intercompany notes issued by a Foreign Subsidiary in connection with Permitted
Restructuring Transactions so long as (i) if the Permitted Restructuring Transaction involves a
transfer by a Credit Party, such intercompany note shall be pledged as Collateral pursuant to the
Collateral Documents (subject to the terms of the Intercreditor Agreement) and (ii) such note is
not issued in respect of any Indebtedness for borrowed money payable in cash;




          (w) unsecured or subordinated Indebtedness of the Credit Parties in an aggregate principal
amount not to exceed $75,000,000 at any one time outstanding; provided that (i) such
Indebtedness will not mature prior to the date that is one year following the Commitment
Termination Date, (ii) such Indebtedness has no scheduled amortization of principal (or sinking
fund payments or other similar payments) prior to the date that is one year following the
Commitment Termination Date, (iii) no Default shall have occurred and be continuing or would
immediately result therefrom, (iv) immediately after giving effect thereto, Borrower and its
Restricted Subsidiaries are in compliance, on a Pro Forma Basis after giving effect to the
incurrence of such Indebtedness, with the covenants set forth in Section 7.10, and (v)
except in the case of guaranties by Foreign Subsidiaries of such Indebtedness of Foreign
Subsidiaries, no Restricted Subsidiary shall guaranty any such Indebtedness unless such Restricted
Subsidiary is also a Subsidiary Guarantor under this Agreement and the other Loan Documents; and




          (x) Indebtedness in respect of obligations with respect to letters of credit issued pursuant
to the Postpetition Letter of Credit Facility not to exceed $15,000,000 at any time outstanding.




     7.4 Affiliate Transactions. No Credit Party shall, or shall permit any of its
Restricted Subsidiaries to, enter into any transaction of any kind with any Affiliate of Borrower
or its Restricted Subsidiaries other than (a) transactions among Credit Parties, (b) on fair and
reasonable terms substantially as favorable to Borrower or such Restricted Subsidiary as would be
obtainable by Borrower or such Restricted Subsidiary in a comparable arm’s-length transaction with
a Person other than an Affiliate, (c) the payment of fees and expenses in connection with the
consummation of the Related Transactions, (d) loans and other transactions by Borrower and its
Subsidiaries to the extent not prohibited by this Agreement, (e) entering into employment and
severance arrangements between Borrower and its Restricted Subsidiaries and their respective
officers and employees, as determined in good faith by the board of directors or senior management
of the relevant Person, (f) any transaction among a Securitization Subsidiary and Foreign
Subsidiary effected as part of a Permitted Receivables Financing, (g) the payment of customary fees
and reimbursement of reasonable out-of-pocket costs of, and customary indemnities provided to or on
behalf of, directors, officers and employees of Borrower and its Restricted Subsidiaries in the
ordinary course of business to the extent attributable to the operations of Borrower and its
Restricted Subsidiaries, as determined in good faith by the board of directors or senior management
of the relevant Person, (h) the payment of fees, expenses, indemnities or other payments pursuant
to, and transactions pursuant to, the permitted agreements in existence on the Closing Date and set
forth on Schedule (7.4) or any amendment thereto to the extent such an amendment is not
adverse to the Lenders in any material respect, (i)



90









 




in the ordinary course of business of the relevant Group Member and (j) Restricted Payments
permitted under Section 7.14.




     7.5 Amendment of Certain Documents; Line of Business. No Credit Party shall amend its
charter, bylaws or other organizational documents in any manner materially adverse to the interest
of the Lenders or such Credit Party’s duty or ability to repay the Obligations. No Credit Party
shall amend any terms of any Junior Financing Documentation in any manner materially adverse to the
interests of the Lenders. No Credit Party shall engage in any business other than the businesses
currently engaged in by it on the date hereof or businesses reasonably related or ancillary
thereto.



     7.6 Guarantied Obligations. No Credit Party shall, or shall permit any of its
Restricted Subsidiaries to, create, incur, assume or permit to exist any Guarantied Obligations
except (a) by endorsement of instruments or items of payment for deposit to the general account of
any Credit Party, (b) for Guarantied Obligations incurred for the benefit of any other Credit Party
or its Subsidiaries if the primary obligation is expressly permitted by this Agreement, (c) for
Guarantied Obligations which consists of a Credit Party acting as a joint obligor or co-tenant
under a lease by a Credit Party and (d) Guarantied Obligations permitted under Section 7.3.



     7.7 Liens. No Credit Party shall, or shall permit any of its Restricted Subsidiaries
to, create, incur, assume or permit to exist any Lien on or with respect to any of its properties
or assets (whether now owned or hereafter acquired) except for:



          (a) Liens for taxes, assessments or governmental charges not yet due or that are being
contested in good faith by appropriate proceedings provided that adequate reserves with respect
thereto are maintained on the books of Borrower or its Subsidiaries, as the case may be, in
conformity with GAAP;




          (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s or other
like Liens arising in the ordinary course of business that are not overdue for a period of more
than 30 days or that are being contested in good faith by appropriate proceedings;




          (c) pledges or deposits in connection with workers’ compensation, unemployment insurance and
other social security legislation;




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




          (e) easements, rights-of-way, covenants, conditions, restrictions and other encumbrances or
title or survey defects that, in the aggregate, do not materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct of the business of
Borrower or any of its Subsidiaries;




          (f) Liens in existence on the Closing Date listed on Schedule (7.7) and any
modification, replacement, renewal or extension thereof, securing Indebtedness permitted by
Section 7.3(e), provided that no such Lien is spread to cover any additional property
(other than






91









 







the proceeds or products thereof and accessions thereto) after the Closing Date and that the
amount of Indebtedness secured thereby is not increased;




          (g) Liens securing Indebtedness of any Credit Party or any other Subsidiary incurred pursuant
to Section 7.3(k) to finance the acquisition, repair, replacement, construction or
improvement of fixed or capital assets, provided that (i) such Liens shall be created substantially
simultaneously with or within 180 days of such acquisition, repair, replacement, construction or
improvement 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 the proceeds and products
thereof and accessions thereto) and (iii) the amount of Indebtedness secured thereby is not
increased;




          (h) Liens created pursuant to the Collateral Documents;




          (i) (i) leases, licenses, subleases or sublicenses granted to other Persons in the ordinary
course of business which do not (A) interfere in any material respect with the business of Borrower
or any Subsidiary or (B) secure any Indebtedness or (ii) the rights reserved or vested in any
Person by the terms of any lease, license, franchise, grant or permit held by Borrower or any of
its Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise,
grant or permit, or to require annual or periodic payments as a condition to the continuance
thereof;




          (j) subject to the Intercreditor Agreement, Liens to secure Indebtedness permitted under the
Revolving Loan Credit Documents;




          (k) Liens on assets of Foreign Subsidiaries securing Indebtedness of such Foreign Subsidiaries
permitted by Section 7.3(f);




          (l) Liens securing Indebtedness of any Foreign Subsidiary incurred pursuant to Sections
7.3(g) and 7.3(h); provided that no Lien may be granted on the Collateral to secure
such Indebtedness and the aggregate fair market value of the assets subject to such Liens shall not
exceed 100% of the amount of any such Indebtedness so secured;




          (m) Liens on Receivables, any Related Security and other Factoring Assets sold in any
Permitted Factoring Programs or Liens on Receivables, any Related Security and Other Securitization
Assets sold in any Permitted Receivables Financing, in each case, that are permitted under
Section 7.3(g);




          (n) Liens on assets of Halla and its Subsidiaries securing Indebtedness permitted by
Section 7.3(i); provided that the aggregate outstanding principal amount of such
Indebtedness secured by such Liens shall not exceed $350,000,000 at any one time outstanding;




          (o) Liens securing judgments, decrees or attachments not constituting an Event of Default so
long as such Liens are released or satisfied within sixty (60) days after entry thereof (upon the
issuance of an appeal bond or otherwise);





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          (p) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods in the ordinary course
of business;




          (q) Liens (i) of a collection bank arising under Section 4-210 of the Code on items in the
course of collection, or (ii) in favor of a banking institution arising as a matter of law
encumbering deposits (including the right of set-off) and which are within the general parameters
customary in the banking industry;




          (r) Liens existing on property at the time of its acquisition or existing on the property of
any Person at the time such Person becomes a Subsidiary, in each case after the Closing Date (other
than Liens on the Stock of any Person that becomes a Subsidiary) and any modifications,
replacements, renewals or extensions thereof; provided that (i) such Lien was not created in
contemplation of such acquisition or such Person becoming a Subsidiary, (ii) such Lien does not
extend to or cover any other assets or property (other than the proceeds or products thereof and
accessions thereto), and (iii) the Indebtedness secured thereby (or, as applicable, any
modifications, replacements, renewals or extensions thereof) is permitted under Section
7.3;




          (s) Liens arising from precautionary Code financing statement filings (or similar filings);




          (t) Liens arising out of a conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by Borrower or any of its Subsidiaries in the ordinary
course of business and not prohibited by this Agreement; provided that such Liens only cover the
property subject to such arrangements;




          (u) Liens that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of Indebtedness, (ii)
relating to pooled deposit or sweep accounts of Borrower or any Subsidiary to permit satisfaction
of overdraft or similar obligations incurred in the ordinary course of business of Borrower and its
Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers
or suppliers of Borrower or any Subsidiary in the ordinary course of business;




          (v) ground leases in respect of real property on which facilities owned or leased by Borrower
or any of its Subsidiaries are located;




          (w) Liens affecting the fee title of any Real Estate leased by Borrower or any of its
Subsidiaries that are created by a Person other than Borrower or its Subsidiaries;




          (x) Liens arising by operation of law under Article 2 of the Code in favor of a reclaiming
seller of goods or buyer of goods;




          (y) security given to a public or private utility or any Governmental Authority as required in
the ordinary course of business;




          (z) pledges or deposits of cash and Cash Equivalents securing deductibles, self-insurance,
co-payment, co-insurance, retentions and similar obligations to providers of insurance in the
ordinary course of business;







93









 








          (aa) Liens on securities which are subject to repurchase agreements as contemplated in the
definition of “Cash Equivalents”;




          (bb) Liens on goods and the proceeds thereof and title documents relating thereto to secure
drawings under letters of credit permitted under Section 7.3(h) used to finance the
purchase of such goods;




          (cc) Liens on (i) incurred premiums, dividends and rebates which may become payable under
insurance policies and loss payments which reduce the incurred premiums on such insurance policies
and (ii) rights which may arise under State insurance guaranty funds relating to any such insurance
policy, in each case to secure Indebtedness permitted under Section 7.3(s);




          (dd) Liens not otherwise permitted by this Section 7.7 so long as (i) the aggregate
outstanding principal amount of the obligations secured thereby shall not exceed $10,000,000 at any
time and (ii) the aggregate fair market value (determined as of the date such Lien is incurred) of
the assets subject thereto (as to Borrower and all of its Subsidiaries) shall not exceed
$20,000,000 at any one time outstanding;




          (ee) Liens on earnest money deposits of cash or Cash Equivalents made by Borrower or its
Subsidiaries in connection with any Permitted Acquisition;




          (ff) Liens on assets of the Securitization Subsidiary in favor of any Foreign Subsidiary
securing intercompany Indebtedness or other obligations related to the origination, selling or
collection of Receivables, Related Security or Other Securitization Assets;




          (gg) Liens on property subject to a Capital Lease entered into in connection with a
Sale-Leaseback Transaction permitted under Section 7.12; and




          (hh) Liens on cash collateral securing the Indebtedness permitted under Section
7.3(w).




     7.8 Sale of Stock and Assets. Except as set forth herein, no Credit Party shall, or
shall permit any of its Restricted Subsidiaries to, sell, transfer, convey, assign or otherwise
Dispose of any of its properties or other assets, including the Stock of any of its Subsidiaries
(whether in a public or a private offering or otherwise), other than:



          (a) the Disposition (including the abandonment of intellectual property) of obsolete, no
longer used or useful, surplus, uneconomic, negligible or worn out property in the ordinary course
of business;




          (b) the sale of inventory in the ordinary course of business;




          (c) Dispositions permitted by clause (i) of Section 7.1(c);




          (d) (i) the sale or issuance of any Subsidiary’s Stock to Borrower or any Subsidiary Guarantor
and (ii) the sale or issuance of Stock of Borrower to any employee (and,






94









 







where required by law, to any officer or director) under any employment or compensation plans
or to qualify such officers and directors;




          (e) the Disposition of Receivables and any Related Security and Other Factoring Assets in any
Permitted Factoring Program or the Disposition of Receivables, any Related Security or Other
Securitization Assets in connection with any Permitted Receivables Financing so long as (i) such
assets are not included in Collateral, (ii) such Disposition is for cash at fair market value and
on a non-recourse basis by non-Credit Parties and (iii) the book value of all such Receivables,
Related Security, Other Factoring Assets and Other Securitization Assets subject to the Permitted
Factoring Program and/or Permitted Receivables Financing at any one time do not exceed $100,000,000
(without regard to adverse changes in the exchange rate) in the aggregate plus an
additional $50,000,000 (without regard to adverse changes in the exchange rate) in the aggregate if
purchase orders of Visteon Sistemas Interiores Espana, S.L. have not been transferred to Visteon
Electronics Corporation;




          (f) the sale of the Stock of Halla so long as (i) the non-cash consideration for any such sale
does not exceed the amount permitted under Section 7.2(p), and (ii) after giving effect to
any such sale, Borrower continues to hold, directly or indirectly, at least 51% of the Stock of
Halla and continues to control the same ratio (or better) of board seats of Halla as it does on the
Closing Date; provided that the Net Cash Proceeds of any such sale are applied to repay the
Obligations to the extent required by Section 2.3(b);




          (g) the Disposition of other property not otherwise expressly permitted by this Section so
long as (i) the non-cash consideration for any such Disposition does not exceed the amount
permitted under Section 7.2(p), (ii) the EBITDA Disposition Percentage attributable to the
assets to be Disposed of, together with the EBITDA Disposition Percentage attributable to any other
assets Disposed of pursuant to this Section 7.8(g) during the same Fiscal Year, does not
exceed 15% in the aggregate, (iii) the aggregate EBITDA Disposition Percentage of all such assets
Disposed of subsequent to the Closing Date pursuant to this Section 7.8(g) does not exceed
25% and (iv) the Net Cash Proceeds from any such Disposition are applied to repay the Obligations
in accordance with Section 2.3(b);




          (h) the sale of assets subsequent to the Closing Date with an aggregate fair market value not
to exceed $175,000,000 (net of taxes, expenses, indebtedness, pension or OPEB liabilities paid or
reserved for in connection with any such sale) so long as the non-cash consideration for any such
sale does not exceed the amount permitted under Section 7.2(p); provided, that the
Net Cash Proceeds of any such sale are applied to repay the Obligations to the extent required by
Section 2.3(b);




          (i) Dispositions of Cash Equivalents in the ordinary course of business in connection with the
cash management activities of Borrower and its Subsidiaries;




          (j) Dispositions of Accounts in connection with compromise, write down or collection thereof
in the ordinary course of business and consistent with past practice;







95









 








          (k) leases, subleases, licenses or sublicenses of property in the ordinary course of business
and which do not materially interfere with the business of Borrower and its Subsidiaries;




          (l) Dispositions of Stock to directors where required by applicable law or to satisfy other
requirements of applicable law with respect to the ownership of Stock of Foreign Subsidiaries;




          (m) Dispositions of assets resulting in aggregate Net Cash Proceeds not in excess of $350,000
in any individual transaction or series of related transactions;




          (n) Dispositions in connection with any Permitted Restructuring Transaction;




          (o) Dispositions of the assets of any Foreign Subsidiary which is an Immaterial Subsidiary in
connection with the liquidation or dissolution of such Subsidiary;




          (p) Dispositions of designated assets listed on Schedule (7.8(p)) so long as the
non-cash consideration for any such Disposition does not exceed the amount permitted under
Section 7.2(p);




          (q) Disposition of Visteon S.A. (Argentina) aged intercompany payables to Borrower from other
Subsidiaries of Borrower so long as any such Disposition is a non-cash transaction;




          (r) Dispositions of the Stock of any Joint Venture to the extent required by the terms of
customary buy/sell type arrangements entered into in connection with the formation of such Joint
Venture;




          (s) transfer of property subject to a casualty or condemnation (i) upon receipt of Net Cash
Proceeds of such casualty or (ii) to a Governmental Authority as a result of condemnation;
provided, that the Net Cash Proceeds of any such transfer are applied to repay the
Obligations to the extent required by Section 2.3(b);




          (t) Dispositions of Acquired Non-Core Assets;




          (u) Dispositions of property in connection with Sale-Leaseback Transactions permitted under
Section 7.12; and




          (v) Dispositions of assets which constitute Investments permitted under Section 7.2.




     7.9 ERISA. No Credit Party shall, or shall cause or permit any ERISA Affiliate to,
cause or permit to occur (i) an event that could result in the imposition of an ERISA Lien or
(ii) an ERISA Event (or similar event with respect to a Foreign Plan) to the extent such ERISA
Event (or similar event with respect to a Foreign Plan) or ERISA Lien would reasonably be expected
to have a Material Adverse Effect.



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     7.10 Financial Covenants. Borrower shall not breach or fail to comply with any of the
following Financial Covenants, each of which shall be calculated in accordance with GAAP
consistently applied, and tested in the manner set forth herein:



          (a) Maximum Capital Expenditures. Borrower and its Restricted Subsidiaries on a
consolidated basis shall not make Capital Expenditures during any Fiscal Year that exceed in the
aggregate the amounts set forth opposite each such Fiscal Year below:




	 	 	 
	Fiscal Year	 	Capital Expenditures
	December 31, 2010
	 	$211,000,000
	December 31, 2011
	 	$275,000,000
	December 31, 2012
	 	$245,000,000
	December 31, 2013 and each Fiscal Year thereafter
	 	$245,000,000





; provided, if the amount of all Capital Expenditures is less than the sum of the maximum
amounts designated above for such period, Borrower may carry over such unused amount (the
“Carry Over Amount”) for the next consecutive Fiscal Year; provided,
further, that such Carry Over Amount may only be used in such succeeding Fiscal Year (it
being understood that the Carry Over Amount shall be deemed to be used first in such succeeding
Fiscal Year). In addition, for any Fiscal Year, the amount of Capital Expenditures that would
otherwise be permitted in such Fiscal Year pursuant to this Section 7.10(a) (including as a
result of any Carry Over Amount) may be increased by an amount not to exceed $100,000,000 (the
“CapEx Pull-Forward Amount”). The actual CapEx Pull-Forward Amount in respect of any such
Fiscal Year shall reduce, on a dollar-for-dollar basis, the amount of Capital Expenditures that
would have been permitted to be made in the immediately succeeding Fiscal Year. Notwithstanding
anything to the contrary in the foregoing, for each Permitted Acquisition consummated in any Fiscal
Year, the amount set forth above next to each Fiscal Year (the “Base Amount”) for such
Fiscal Year (subject to the second proviso in this sentence) and for every Fiscal Year thereafter
shall be increased by an amount equal to (i) the quotient obtained by dividing (A) the
amount of Capital Expenditures made by the acquired entity or business for the thirty-six (36)
month period immediately preceding the consummation of such Permitted Acquisition, by (B) three
(3), or (ii) if the information described in the foregoing clause (i)(A) is not available,
3.5% of the cumulative sales over the immediately preceding twelve (12) months of the acquired
Person, division, line of business or other business unit, as determined in financial statements
therefore prepared in accordance with the standards set forth in Section 5.1 (in either
case, such amount, the “Acquired Permitted Capital Expenditure Amount”); provided,
that, with respect to the Fiscal Year during which any such Permitted Acquisition occurs, the
amount of Capital Expenditures permitted under this Section 7.10(a) with respect to such
Fiscal Year shall be increased by an amount equal to the product of (x) the Acquired Permitted
Capital Expenditure Amount and (y) a fraction, the numerator of which is the number of days
remaining in such Fiscal Year and the denominator of which is 365 or 366, as applicable.




          (b) Maximum Leverage Ratio. Borrower and its Restricted Subsidiaries on a
consolidated basis shall not permit the Total Net Leverage Ratio as of the last day of any Fiscal
Quarter, beginning with the Fiscal Quarter ending December 31, 2010, to exceed 2.50 to 1.00.







97









 








          (c) Minimum Interest Coverage Ratio. Borrower and its Restricted Subsidiaries on a
consolidated basis shall not permit the Interest Coverage Ratio as of the last day of any Fiscal
Quarter, beginning with the Fiscal Quarter ending December 31, 2010, to be less than 3.00 to 1.00.




     Unless otherwise specifically provided herein, any accounting term used in this Agreement
shall have the meaning customarily given to such term in accordance with GAAP, and all financial
computations hereunder shall be computed in accordance with GAAP consistently applied. That
certain items or computations are explicitly modified by the phrase “in accordance with GAAP” shall
in no way be construed to limit the foregoing. If any “Accounting Changes” (as defined below)
occur and such changes result in a change in the calculation of the financial covenants, standards
or terms used in this Agreement or any other Loan Document, then Borrower, Agent and Lenders agree
to enter into negotiations in order to amend such provisions of this Agreement so as to equitably
reflect such Accounting Changes with the desired result that the criteria for evaluating Borrower’s
and its Subsidiaries’ financial condition shall be the same after such Accounting Changes as if
such Accounting Changes had not been made; provided, however, that the agreement of
Requisite Lenders to any required amendments of such provisions shall be sufficient to bind all
Lenders. “Accounting Changes” means (i) changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants (or successor thereto or
any agency with similar functions), (ii) changes in accounting principles concurred in by
Borrower’s certified accountants; (iii) purchase accounting adjustments under A.P.B. 16 or 17 and
EITF 88-16, and the application of the accounting principles set forth in FASB 109, including the
establishment of reserves pursuant thereto and any subsequent reversal (in whole or in part) of
such reserves; and (iv) the reversal of any reserves established as a result of purchase accounting
adjustments. All such adjustments resulting from expenditures made subsequent to the Closing Date
(including capitalization of costs and expenses or payment of pre-Closing Date liabilities) shall
be treated as expenses in the period the expenditures are made and deducted as part of the
calculation of EBITDA in such period. If Agent, Borrower and Requisite Lenders agree upon the
required amendments, then after appropriate amendments have been executed and the underlying
Accounting Change with respect thereto has been implemented, any reference to GAAP contained in
this Agreement or in any other Loan Document shall, only to the extent of such Accounting Change,
refer to GAAP, consistently applied after giving effect to the implementation of such Accounting
Change. If Agent, Borrower and Requisite Lenders cannot agree upon the required amendments within
thirty (30) days following the date of implementation of any Accounting Change, then all Financial
Statements delivered and all calculations of financial covenants and other standards and terms in
accordance with this Agreement and the other Loan Documents shall be prepared, delivered and made
without regard to the underlying Accounting Change. For purposes of Section 9.1, a breach
of a Financial Covenant contained in this Section 7.10 shall be deemed to have occurred as
of the last day of any specified measurement period, regardless of when the Financial Statements
reflecting such breach are delivered to Agent.



     7.11 Hazardous Materials. No Credit Party shall, or shall permit any of its
Restricted Subsidiaries to, cause or permit a Release of any Hazardous Material on, at, in, under,
above, to, from or about any of the Real Estate where such Release would (a) violate in any
respect, or



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form the basis for any Environmental Liabilities under, any Environmental Laws or
Environmental Permits or (b) otherwise adversely impact the value or marketability of any of the
Real Estate or any of the Collateral, other than such violations or Environmental Liabilities that
could not reasonably be expected to have a Material Adverse Effect.




     7.12 Sale-Leaseback Transactions. No Credit Party shall, or shall permit any of its
Restricted Subsidiaries to, engage in any Sale-Leaseback Transaction involving any of its assets
other than (a) Sale-Leaseback Transactions that exist on the Closing Date and are described in
Schedule (7.12), (b) Sale-Leaseback Transactions for fair value (as determined at the time
of the consummation thereof in good faith by the applicable Credit Party or Restricted Subsidiary)
not to exceed $50,000,000 in the aggregate so long as (i) eighty percent (80%) of the consideration
received by such Credit Party or Restricted Subsidiary from such Sale-Leaseback Transaction is in
the form of cash and (ii) the Net Cash Proceeds from any such Sale-Leaseback Transaction are
applied to repay the Obligations in accordance with Section 2.3(b), (c) Sale-Leaseback
Transactions between Credit Parties and (d) Sale-Leaseback Transactions between Excluded
Subsidiaries.



     7.13 Cancellation of Indebtedness. No Credit Party shall, or shall permit any of its
Restricted Subsidiaries to, cancel any claim or debt owing to a Credit Party by a Subsidiary that
is not a Credit Party, provided such cancellation shall constitute an Investment for purposes of
this Agreement and any such Investment is permitted under Section 7.2.



     7.14 Restricted Payments. No Credit Party shall, or shall permit any of its
Restricted Subsidiaries to, make any Restricted Payment, except:



          (a) any Subsidiary may make Restricted Payments to Borrower or any Wholly Owned Subsidiary
Guarantor;




          (b) any Subsidiary may make Restricted Payments pro rata to the holders of the Stock of such
Subsidiaries entitled to receive the same;




          (c) Borrower may make Restricted Payments in connection with the share repurchases required by
the director and employee compensation programs as described on Schedule (7.14) so long as
(i) no Default or Event of Default has occurred and is continuing or would result therefrom and
(ii) the aggregate amount of Restricted Payments paid pursuant to this Section 7.14(c) does
not exceed $5,000,000 in any Fiscal Year (provided each such annual amount may only be used in such
Fiscal Year);




          (d) cash payments by Borrower in lieu of the issuance of fractional shares upon the exercise
of options in the ordinary course of business;




          (e) other Restricted Payments so long as (i) no Default or Event of Default has occurred and
is continuing or would result therefrom after giving Pro Forma Effect to such Restricted Payment
and (ii) the aggregate amount of all such Restricted Payments paid pursuant to this Section
7.14(e) does not exceed $250,000,000 and/or (ii) other Restricted Payments so long as no
Default or Event of Default has occurred and is continuing or would result therefrom after giving
Pro Forma Effect to such Restricted Payment and Restricted Payments in an amount which equals 25%
(or minus 100% in the case of a loss) of Borrower’s and its Restricted






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Subsidiaries Consolidated Net Income for the period commencing on the Closing Date and ending
on the last day of the Fiscal Quarter most recently ended for which Financial Statements are
available; plus, in the case of Sections 7.14(e)(i)or (e)(ii), an amount
equal to 100% of the Net Cash Proceeds received by Borrower after the Closing Date from the
issuance of its common Stock which is Not Otherwise Applied, minus the aggregate amount of
Investments made pursuant to Section 7.2(h)(ii); provided, however,
notwithstanding anything to the contrary herein, a Restricted Payment may be made in reliance on an
aggregate of the amounts set forth in Sections 7.14(e)(i) and (e)(ii) above;




          (f) Restricted Payments used by Halla and its Subsidiaries to redeem or repurchase (including,
without limitation, for cash) Stock from Halla’s existing equity-holders so long as (i) Borrower
and its Restricted Subsidiaries, taken as a whole, continue to own not less than 51% of the Stock
of Halla and continue to control the same ratio (or better) of board seats of Halla after any such
transaction as Borrower and its Restricted Subsidiaries do on the Closing Date and (ii) such
redemptions or repurchases are made in accordance with Section 7.4; and




          (g) Borrower and its Restricted Subsidiaries shall be permitted to make Restricted Payments in
accordance with Section 2.3(f).




     7.15 Change of Corporate Name, State of Incorporation or Location; Change of Fiscal
Year. Except as otherwise expressly permitted in this Section 7, no Credit Party
shall, or shall permit any Restricted Subsidiary to, (a) change its legal name as it appears in
official filings in the state of its incorporation or other organization, (b) change its chief
executive office, principal place of business, (c) change the type of entity that it is, (d) change
its organization identification number, if any, issued by its state of incorporation or other
organization, or (e) change its state, providence or other jurisdiction of incorporation or
organization, in each case without at least fifteen (15) days’ prior written notice to Agent and
provided, that with respect to any Credit Party any such new location shall be in the
United States. No Credit Party shall change its Fiscal Year.



     7.16 Intentionally Omitted.



     7.17 No Speculative Transactions. No Credit Party shall, or shall permit any of its
Restricted Subsidiaries to, engage in any Swap Contract, except (a) Swap Contracts entered into to
hedge or mitigate risks (and not for speculative purposes) of Borrower or any of its Subsidiaries
(other than those in respect of Stock), including, but not limited to, foreign exchange rate and
commodity hedges and (b) Swap Contracts entered into in order to effectively cap, collar or
exchange interest rates (from fixed to floating rates, from one floating rate to another floating
rate or otherwise) with respect to any interest-bearing liability or Investment of Borrower or any
of its Subsidiaries and (c) as required under Section 6.12.



     7.18 Changes Relating to Material Contracts. No Credit Party shall, or shall permit
any of its Restricted Subsidiaries to, change or amend, modify or supplement the terms of, or
terminate or agree to terminate, any Material Contract, other than changes, amendments and other
modifications which could not reasonably be expected to have a Material Adverse Effect.



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     7.19 OFAC; Patriot Act. No Credit Party shall, and no Credit Party shall permit any
of its Subsidiaries to fail to comply with the laws, regulations and executive orders referred to
in Sections 4.29 and 4.30.



     7.20 Limitation of Restrictions Affecting Subsidiaries. No Credit Party shall, or
shall permit any of its Restricted Subsidiaries to, directly, or indirectly, create or otherwise
cause or suffer to exist any encumbrance or restriction which prohibits or limits the ability of
any Subsidiary of such Credit Party or Subsidiary to: (a) pay dividends or make other distributions
or pay any Credit Party or Subsidiary; (b) make loans or advances to such Credit Party or any
Subsidiary of such Credit Party; (c) transfer any of its properties or assets to such Credit Party
or Subsidiary of such Credit Party; or (d) create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter acquired, other than
encumbrances and restrictions arising under (i) applicable law, (ii) this Agreement,
(iii) customary provisions restricting subletting or assignment of any lease or sublease governing
a leasehold interest of such Credit Party or any Subsidiary of such Credit Party, (iv) customary
restrictions on dispositions of real property interests found in reciprocal easement agreements of
such Credit Party or any Subsidiary of such Credit Party; (v) any agreement relating to permitted
Indebtedness incurred by such Credit Party or a Subsidiary of such Credit Party prior to the date
on which such Subsidiary was acquired by such Credit Party or Subsidiary and not in contemplation
of such acquisition and outstanding on such acquisition date; (vi) the extension or continuation of
Contractual Obligations in existence on the Closing Date; (vii) the Revolver Loan Documents and
related documents; (viii) any restrictions with respect to a Subsidiary imposed pursuant to an
agreement that has been entered into in connection with the Disposition of all or substantially
all of the Stock or assets of such Subsidiary, (ix) such encumbrances or restrictions consisting of
customary non-assignment provisions in licenses and sublicenses governing licenses or sublicenses
to the extent such provisions restrict the transfer of the license, sublicense or the property
licensed or sublicensed thereunder, (x) such encumbrances or restrictions with respect to
Indebtedness of a Foreign Subsidiary permitted pursuant to this Agreement and which encumbrances or
restrictions are customary in agreements of such type or are of the type existing under the
agreements listed on Schedule (7.20) and which shall apply only to such Foreign
Subsidiaries subject thereto and such Foreign Subsidiary’s Subsidiaries, (xi) restrictions under
any Permitted Factoring Program or Permitted Receivables Financing (which restrictions shall only
apply to any Securitization Subsidiary and the Foreign Subsidiaries which participate therein) and
(xii) restrictions under joint venture agreements or other similar agreements entered into in the
ordinary course of business in connection with Joint Ventures; provided, that, any such
encumbrances or restrictions contained in such extension or continuation are no less favorable to
Agent and Lenders than those encumbrances and restrictions under or pursuant to the Contractual
Obligations so extended or continued.



     7.21 Business of Foreign Stock Holding Companies. No Credit Party shall, or shall
permit any of its Restricted Subsidiaries to, permit any Foreign Stock Holding Company to (a)
engage at any time in any business or business activity other than (i) ownership and acquisition of
Stock in Halla, other Foreign Subsidiaries or other Foreign Stock Holding Companies, (ii)
performance of its obligations under and in connection with the Loan Documents, (iii) actions
required to maintain its existence, (iv) activities incidental to its maintenance and continuance
and to the foregoing activities and, in the case of Visteon Global Technologies, Inc., the
ownership of Intellectual Property and the licensing and sublicensing thereof; (b) incur any



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Indebtedness (other than Indebtedness permitted under Section 7.3(v); (c) make
Investments, other than (i) ownership interests in Halla, other Foreign Subsidiaries, Immaterial
Subsidiaries, Excluded Domestic Subsidiaries and other Foreign Stock Holding Companies and (ii)
loans, advances and other Investments in Borrower and its Subsidiaries to the extent permitted by
Section 7.2; or (d) sell, dispose of, grant a Lien on or otherwise transfer the Stock of
Halla or any other Foreign Subsidiary or any other Foreign Stock Holding Companies except as
permitted by Section 7.8 and Section 7.14.




     7.22 Equity Interests of Credit Parties. Create, incur, assume or suffer to exist any
Lien on any Stock of any Credit Party (other than Borrower), any Foreign Stock Holding Company or
any first-tier Foreign Subsidiary, except for the Liens granted pursuant to the Collateral
Documents and the Revolver Loan Documents.


8. TERM




     8.1 Termination. The financing arrangements contemplated hereby shall be in effect
until the Commitment Termination Date, and the Term Loans and all other Obligations shall be
automatically due and payable in full on such date.



     8.2 Survival of Obligations Upon Termination of Financing Arrangements. Except as
otherwise expressly provided for in the Loan Documents, no termination or cancellation (regardless
of cause or procedure) of any financing arrangement under this Agreement shall in any way affect or
impair the obligations, duties and liabilities of the Credit Parties or the rights of Agent and
Lenders relating to any unpaid portion of the Term Loans or any other Obligations, due or not due,
liquidated, contingent or unliquidated, or any transaction or event occurring prior to such
termination, or any transaction or event, the performance of which is required after the Commitment
Termination Date. Except as otherwise expressly provided herein or in any other Loan Document, all
undertakings, agreements, covenants, warranties and representations of or binding upon the Credit
Parties, and all rights of Agent and each Lender, all as contained in the Loan Documents, shall not
terminate or expire, but rather shall survive any such termination or cancellation and shall
continue in full force and effect until the Termination Date; provided, that the payment
obligations under Sections 2.13 and 2.14, and the indemnities contained in the Loan
Documents shall survive the Termination Date.


9. EVENTS OF DEFAULT; RIGHTS AND REMEDIES




     9.1 Events of Default. The occurrence of any one or more of the following events
(regardless of the reason therefor) shall constitute an “Event of Default” hereunder:



          (a) Borrower (i) fails to make any payment of principal of the Term Loans when due and
payable, (ii) fails to pay any interest or Fees owing in respect of the Term Loans within three (3)
Business Days after the same becomes due and payable or (iii) fails to pay or reimburse Agent or
Lenders for any other Obligations hereunder or under any other Loan Document within ten (10) days
after the same becomes due and payable.




          (b) Any Credit Party fails or neglects to perform, keep or observe any of the provisions of
Sections 2.4, 2.6, 6.4(a), 6.17 or 7, respectively.







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          (c) Any Credit Party fails or neglects to perform, keep or observe any of the provisions of
Section 5.1 or Section 5.2, respectively, and the same shall remain unremedied for
five (5) Business Days or more.




          (d) Any Credit Party fails or neglects to perform, keep or observe any other provision of this
Agreement or of any of the other Loan Documents (other than any provision embodied in or covered by
any other clause of this Section 9.1) and the same shall remain unremedied for thirty (30)
days or more after written notice to Borrower from Agent or any Lender to Borrower.




          (e) (i) An “Event of Default” (or words having similar meaning) under and as defined in the
Revolving Loan Credit Agreement and the related loan documents shall have occurred or (ii) a
default or breach occurs under any other agreement, document or instrument to which any Credit
Party or any Restricted Subsidiary is a party that is not cured within any applicable grace period
therefor, and such default or breach (x) involves the failure to make any payment when due in
respect of any Indebtedness or Guarantied Obligations of Indebtedness(other than the Obligations
and the Obligations under the Revolver Loan Documents) of any Credit Party or any Restricted
Subsidiary having an aggregate outstanding principal amount of not less than $50,000,000 in the
aggregate, or (y) causes, or permits any holder of such Indebtedness or Guarantied Obligations or a
trustee to cause, Indebtedness or Guarantied Obligations of Indebtedness or a portion thereof in
excess of $50,000,000 in the aggregate outstanding principal amount to become due prior to its
stated maturity or prior to its regularly scheduled dates of payment, or cash collateral in respect
thereof (in excess of $50,000,000) is demanded as a result of any such breach or default, in each
case, regardless of whether such right is exercised, by such holder or trustee; provided
that this Section 9.1(e) shall not apply to intercompany Indebtedness of an Immaterial
Subsidiary.




          (f) Any representation or warranty herein or in any Loan Document or in any written statement,
report, financial statement or certificate made or delivered to Agent or any Lender by any Credit
Party is untrue or incorrect in any material respect as of the date when made or deemed made.




          (g) A final judgment or judgments for the payment of money in excess of $50,000,000 in the
aggregate at any time are outstanding against one or more of the Credit Parties or Restricted
Subsidiaries (to the extent not covered by independent third-party insurance as to which the
insurer has been notified of such judgment and does not deny coverage or third party indemnity),
and the same are not, within sixty (60) days after the entry thereof, discharged or execution
thereof stayed or bonded pending appeal, or such judgments are not discharged prior to the
expiration of any such stay.




          (h) Any material provision of any Loan Document for any reason (other than due to (i) Agent’s
failure to take or refrain from taking any action under its sole control or (ii) Agent’s loss of
possessory Collateral that was in its or its Agent’s possession) ceases to be valid, binding and
enforceable in accordance with its terms (or any Credit Party shall challenge the enforceability of
any Loan Document or shall assert in writing, or engage in any action or inaction based on any such
assertion, that any provision of any of the Loan Documents has ceased to be or otherwise is not
valid, binding and enforceable in accordance with its terms), or






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any Lien created under any Loan Document ceases to be a valid and perfected first priority
Lien (except as otherwise permitted herein or therein) in any of the Collateral purported to be
covered thereby except to the extent that any such loss of perfection or priority results from the
failure of Agent to maintain possession of certificates actually delivered to it representing
securities pledged under the Collateral Documents or to file Code financing statements or
continuation statements or other equivalent filings and except, as to Collateral consisting of Real
Estate to the extent that such losses are covered by a Lender’s title insurance policy and the
related insurer shall not have denied or disclaimed in writing that such losses are covered by such
title insurance policy.




          (i) Any Change of Control occurs.




          (j) Intentionally Omitted.




          (k) An involuntary case or proceeding (including the filing of any notice of intention
thereof) is commenced against any Credit Party or any Restricted Subsidiary (other than an
Immaterial Subsidiary) that is an operating company seeking a decree or order in respect of such
Credit Party or such Restricted Subsidiary (i) under any Insolvency Law or any other applicable
federal, state or foreign bankruptcy or other similar law or any incorporation law, (ii) appointing
a custodian, receiver, interim receiver, receiver and manager, custodian, liquidator, assignee,
trustee or sequestrator (or similar official) for such Credit Party or such Restricted Subsidiary
or for any substantial part of any such Credit Party’s or such Restricted Subsidiary’s assets, or
(iii) ordering the winding-up, dissolution, suspension of general operations or liquidation of the
affairs of such Credit Party or such Restricted Subsidiary, and such case or proceeding shall
remain undismissed or unstayed for sixty (60) days or more or a decree or order granting the relief
sought in such case or proceeding shall be entered by a court of competent jurisdiction.




          (l) Any Credit Party or Restricted Subsidiary (other than an Immaterial Subsidiary) (i) files
a petition seeking relief under any Insolvency Law, or any other applicable federal, state or
foreign bankruptcy or other similar law, (ii) consents to the institution of proceedings referred
to in Section 9.1(k) thereunder or the filing of any such petition or the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or
similar official) for such Credit Party or such Restricted Subsidiary or for any substantial part
of any such Credit Party’s or such Restricted Subsidiary’s assets, (iii) makes an assignment for
the benefit of creditors, (iv) takes any action in furtherance of any of the foregoing or described
under Section 9.1(k) or (v) admits in writing its inability to, or is generally unable to,
pay its debts as such debts become due.




          (m) (i) an ERISA Event (or any similar event with respect to a Foreign Plan) shall have
occurred, (ii) a trustee shall be appointed by a United States district court to administer any
Plan (or any similar event with respect to a Foreign Plan); (iii) the PBGC shall institute
proceedings to terminate any Plan or Plans (or any similar event with respect to a Foreign Plan),
(iv) Borrower, any Restricted Subsidiary or any ERISA Affiliate 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






104









 







in a timely and appropriate manner, (v) Borrower, any Restricted Subsidiary or any ERISA
Affiliate shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan (or any similar event with respect to a Foreign Plan)
or (vi) Borrower or any Restricted Subsidiary shall receive any “financial support direction” or
“contribution notice” under any Foreign Plan (including, without limitation, the “Visteon UK
Pension Plan”), and in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect.




          (n) The Intercreditor Agreement shall cease, for any reason, to be in full force and effect,
or any Credit Party or any Subsidiary of any Credit Party, or any party to the Intercreditor
Agreement, shall so assert.




     9.2 Remedies.



          (a) To the extent permitted under Section 2.5(d), if any applicable Event of Default
described in Section 2.5(d) has occurred and is continuing, the rate of interest applicable
to the Term Loans shall increase to the Default Rate.




          (b) If any Event of Default has occurred and is continuing, Agent shall, at the written
request of the Requisite Lenders, take any or all of the following actions: (i) terminate the Term
Loan facility; (ii) declare all or any portion of the Obligations, including all or any portion of
Term Loans to be forthwith due and payable, all without presentment, demand, protest or further
notice of any kind, all of which are expressly waived by Borrower and each other Credit Party; or
(iii) exercise any rights and remedies provided to Agent under the Loan Documents or at law or
equity, including all remedies provided under the Code and any other applicable law of any
jurisdiction; provided, that upon the occurrence of an Event of Default specified in
Section 9.1(k) or Section 9.1(l), all Obligations shall become immediately due and
payable without declaration, notice or demand by any Person. Agent shall, as soon as reasonably
practicable, provide to Borrower notice of any action taken pursuant to this Section 9.2(b)
(but failure to provide such notice shall not impair the rights of Agent or the Lenders hereunder
and shall not impose any liability upon Agent or the Lenders for not providing such notice).




     9.3 Waivers by Credit Parties. Except as otherwise provided for in this Agreement or
by applicable law, each Credit Party waives, to the fullest extent permitted by law:
(a) presentment, demand and protest and notice of presentment, dishonor, notice of intent to
accelerate, notice of acceleration, protest, default, nonpayment, maturity, release, compromise,
settlement, extension or renewal of any or all commercial paper, accounts, contract rights,
documents, instruments, chattel paper and guaranties at any time held by Agent as Collateral on
which any Credit Party may in any way be liable, and hereby ratifies and confirms whatever Agent
may do in this regard, (b) all rights to notice and a hearing prior to Agent’s taking possession or
control of, or to Agent’s replevy, attachment or levy upon, the Collateral or any bond or security
that might be required by any court prior to allowing Agent to exercise any of its remedies, and
(c) the benefit of all valuation, appraisal, marshaling and exemption laws. Each Credit Party
acknowledges that in the event such Credit Party fails to perform, observe or discharge any of its
obligations or liabilities under this Agreement or any other Loan Document, any remedy of law may
prove to be inadequate relief to Agent and the Lenders; therefore, such



105









 




Credit Party agrees, except as otherwise provided in this Agreement or by applicable law, that
Agent and the Lenders shall be entitled to temporary and permanent injunctive relief in any such
case without the necessity of proving actual damages.



10. APPOINTMENT OF AGENT




     10.1 Appointment of Agent. MSSF is hereby appointed to act on behalf of all Lenders
with respect to the administration of the Term Loans made to Borrower and to act as agent on behalf
of all Lenders with respect to Collateral of Credit Parties under this Agreement and the other Loan
Documents. The provisions of this Section 10.1 are solely for the benefit of Agent and
Lenders and no Credit Party nor any other Person shall have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and duties under this Agreement and
the other Loan Documents, Agent shall act solely as an agent of Lenders and does not assume or
shall not be deemed to have assumed any obligation toward or relationship of agency or trust with
or for any Credit Party or any other Person. Agent shall not have any duties or responsibilities
except for those expressly set forth in this Agreement and the other Loan Documents. The duties of
Agent shall be mechanical and administrative in nature and Agent shall not have, or be deemed to
have, by reason of this Agreement, any other Loan Document or otherwise a fiduciary relationship in
respect of any Lender. Except as expressly set forth in this Agreement and the other Loan
Documents, Agent shall not have any duty to disclose, nor shall it be liable for failure to
disclose, any information relating to any Credit Party or any of their respective Subsidiaries or
any Account Debtor that is communicated to or obtained by MSSF or any of its Affiliates in any
capacity. Neither Agent nor any of its Affiliates nor any of their respective officers, directors,
employees, agents or representatives shall be liable to any Lender for any action taken or omitted
to be taken by it hereunder or under any other Loan Document, or in connection herewith or
therewith, except for damages caused by its or their own gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final and non-appealable judgment.



     If Agent shall request instructions from Requisite Lenders or all affected Lenders with
respect to any act or action (including failure to act) in connection with this Agreement or any
other Loan Document, then Agent shall be entitled to refrain from such act or taking such action
unless and until Agent shall have received instructions from Requisite Lenders or all affected
Lenders, as the case may be, and Agent shall not incur liability to any Person by reason of so
refraining. Agent shall be fully justified in failing or refusing to take any action hereunder or
under any other Loan Document (a) if such action would, in the opinion of Agent, be contrary to law
or the terms of this Agreement or any other Loan Document, (b) if such action would, in the opinion
of Agent, expose Agent to Environmental Liabilities or (c) if Agent shall not first be indemnified
to its satisfaction against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall
have any right of action whatsoever against Agent as a result of Agent acting or refraining from
acting hereunder or under any other Loan Document in accordance with the instructions of Requisite
Lenders or all affected Lenders, as applicable.



     10.2 Agent’s Reliance, Etc. Neither Agent nor any of its Affiliates nor any of their
respective directors, officers, agents or employees shall be liable for any action taken or omitted
to be taken by it or them under or in connection with this Agreement or the other Loan



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Documents, except for damages caused by its or their own gross negligence or willful
misconduct as determined by a court of competent jurisdiction in a final and non-appealable
judgment. Without limiting the generality of the foregoing, Agent: (a) may treat the payee of any
Term Note as the holder thereof until Agent receives written notice of the assignment or transfer
thereof signed by such payee and in form reasonably satisfactory to Agent; (b) may consult with
legal counsel, independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts; (c) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any statements, warranties or representations
made in or in connection with this Agreement or the other Loan Documents; (d) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants
or conditions of this Agreement or the other Loan Documents on the part of any Credit Party or to
inspect the Collateral (including the books and records) of any Credit Party; (e) shall not be
responsible to any Lender for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (f) shall incur no liability under or in respect of
this Agreement or the other Loan Documents by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopy, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties; and (g) shall be entitled to delegate
any of its duties hereunder to one or more sub-agents.




     Except for action requiring the approval of Requisite Lenders or all Lenders, as the case may
be, Agent shall be entitled to use its discretion with respect to exercising or refraining from
exercising any rights which may be vested in it by, and with respect to taking or refraining from
taking any action or actions which it may be able to take under or in respect of, this Agreement,
unless Agent shall have been instructed by Requisite Lenders or all Lenders, as the case may be, to
exercise or refrain from exercising such rights or to take or refrain from taking such action.
Agent shall not incur any liability to the Lenders under or in respect of this Agreement with
respect to anything which it may do or refrain from doing in the reasonable exercise of its
judgment or which may seem to it to be necessary or desirable in the circumstances, except for its
own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a
final and non-appealable judgment. Agent shall not be liable to any Lender in acting or refraining
from acting under this Agreement in accordance with the instructions of Requisite Lenders or all
Lenders, as the case may be, and any action taken or failure to act pursuant to such instructions
shall be binding on all Lenders.



     10.3 MSSF and Affiliates. With respect to its Commitments hereunder, MSSF shall have
the same rights and powers under this Agreement and the other Loan Documents as any other Lender
and may exercise the same as though it were not Agent; and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated, include MSSF in its individual capacity. MSSF and its
Affiliates may lend money to, invest in, and generally engage in any kind of business with, any
Credit Party, any of their Affiliates and any Person who may do business with or own securities of
any Credit Party or any such Affiliate, all as if MSSF were not Agent and without any duty to
account therefor to Lenders. MSSF and its Affiliates may accept fees and other consideration from
any Credit Party for services in connection with this Agreement or otherwise without having to
account for the same to Lenders.



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     10.4 Lender Credit Decision. Each Lender acknowledges that it has, independently and
without reliance upon Agent or any other Lender and based on the Financial Statements referred to
in Section 4.4(a) and such other documents and information as it has deemed appropriate,
made its own credit and financial analysis of the Credit Parties and its own decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and without reliance
upon 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 decisions in taking or not taking action
under this Agreement. Each Lender acknowledges the potential conflict of interest of each other
Lender as a result of Lenders holding disproportionate interests in the Term Loans, and expressly
consents to, and waives any claim based upon, such conflict of interest. Each Lender acknowledges
the potential conflict of interest between MSSF, as a Lender, holding disproportionate interests in
the Term Loans, and MSSF, as Agent.



     10.5 Indemnification. Lenders agree to indemnify Agent (to the extent not reimbursed
by Credit Parties and without limiting the obligations of Credit Parties hereunder), ratably
according to their respective Pro Rata Shares, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted
against Agent in any way relating to or arising out of this Agreement or any other Loan Document or
any action taken or omitted to be taken by Agent in connection therewith; provided, that no
Lender shall be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting from Agent’s gross
negligence or willful misconduct as determined by a court of competent jurisdiction in a final and
non-appealable judgment. Without limiting the foregoing, each Lender agrees to reimburse Agent
promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable
counsel fees) incurred by Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this
Agreement and each other Loan Document, to the extent that Agent is not reimbursed for such
expenses by Credit Parties.



     10.6 Successor Agent. Agent may resign at any time by giving not less than thirty
(30) days’ prior written notice thereof to Lenders and Borrower. Upon any such resignation, the
Requisite Lenders shall have the right to appoint a successor Agent. If no successor Agent shall
have been so appointed by the Requisite Lenders and shall have accepted such appointment within
thirty (30) days after the resigning Agent’s giving notice of resignation, then the resigning Agent
may, on behalf of Lenders, appoint a successor Agent, which shall be a Lender, if a Lender is
willing to accept such appointment, or otherwise shall be a commercial bank, financial institution
or trust company. If no successor Agent has been appointed pursuant to the foregoing, within
thirty (30) days after the date such notice of resignation was given by the resigning Agent, such
resignation shall become effective and (a) the Requisite Lenders shall thereafter perform all the
duties of Agent hereunder and (b) Agent shall deliver any possessory Collateral in its possession
to the Revolver Agent to be held in accordance with the Intercreditor Agreement or delivered to
such Person as a court of competent jurisdiction may otherwise direct, in each case, until such
time, if any, as the Requisite Lenders appoint a successor Agent as provided above. Any successor
Agent appointed by Requisite Lenders hereunder shall be subject to the approval of Borrower, such
approval not to be unreasonably withheld or delayed;



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provided that such approval shall not be required if an Event of Default has occurred
and is continuing. Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall succeed to and become vested with all the rights, powers, privileges and
duties of the resigning Agent. Upon the earlier of the acceptance of any appointment as Agent
hereunder by a successor Agent or the effective date of the resigning Agent’s resignation, the
resigning Agent shall be discharged from its duties and obligations under this Agreement and the
other Loan Documents, except that any indemnity rights or other rights in favor of such resigning
Agent shall continue. After any resigning Agent’s resignation hereunder, the provisions of this
Section 10 shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was acting as Agent under this Agreement and the other Loan Documents.




     10.7 Setoff and Sharing of Payments. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights, upon the occurrence
and during the continuance of any Event of Default under Sections 9.1(a), (k) or
(l), each Lender is hereby authorized at any time or from time to time, without prior
notice to any Credit Party or to any Person other than Agent, any such notice being hereby
expressly waived, to offset and to appropriate and to apply any and all balances held by it at any
of its offices for the account (other than Excluded Accounts (as defined in the Security
Agreement)) of Borrower or Guarantors (regardless of whether such balances are then due to Borrower
or Guarantors) and any other Indebtedness at any time held or owing by that Lender or that holder
to or for the credit or for the account of Borrower or Guarantors against and on account of any of
the Obligations that are not paid when due; provided that the Lender exercising such offset
rights shall give notice thereof to the affected Credit Party promptly after exercising such
rights. Any Lender exercising a right of setoff or otherwise receiving any payment on account of
the Obligations in excess of its Pro Rata Share thereof shall purchase for cash (and the other
Lenders or holders shall sell) such participations in each such other Lender’s or holder’s Pro Rata
Share of the Obligations as would be necessary to cause such Lender to share the amount so offset
or otherwise received with each other Lender or holder in accordance with their respective Pro Rata
Shares (other than offset rights exercised by any Lender with respect to Sections 2.11,
2.13 or 2.14). Each Credit Party that is Borrower or Guarantor agrees, to the fullest
extent permitted by law, that any Lender may exercise its right to offset with respect to amounts
in excess of its Pro Rata Share of the Obligations owed to it and may sell participations in such
amounts so offset to other Lenders and holders. Notwithstanding the foregoing, if all or any
portion of the offset amount or payment otherwise received is thereafter recovered from the Lender
that has exercised the right of offset, the purchase of participations by that Lender shall be
rescinded and the purchase price restored without interest.



     10.8 Return of Payments; Information.



          (a) Reserved.




          (b) Return of Payments.




               (i) If Agent pays an amount to a Lender under this Agreement in the belief or expectation that
a related payment has been or will be received by Agent from Borrower and such related payment is
not received by Agent, then Agent will be entitled to recover such amount from such Lender on
demand without setoff, counterclaim or deduction of any kind.



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               (ii) If Agent determines at any time that any amount received by Agent under this Agreement
must be returned to Borrower or paid to any other Person pursuant to any insolvency law or
otherwise, then, notwithstanding any other term or condition of this Agreement or any other Loan
Document, Agent will not be required to distribute any portion thereof to any Lender. In addition,
each Lender will repay to Agent on demand any portion of such amount that Agent has distributed to
such Lender, together with interest at such rate, if any, as Agent is required to pay to Borrower
or such other Person, without setoff, counterclaim or deduction of any kind.



          (c) Dissemination of Information. Agent shall not be required to deliver to any
Lender originals or copies of any documents, instruments, notices, communications or other
information received by Agent from any Credit Party, any Subsidiary, any Lender or any other Person
under or in connection with this Agreement or any other Loan Document except (i) as specifically
provided for in this Agreement or any other Loan Document and (ii) as specifically requested from
time to time in writing by any Lender with respect to a specific document, instrument, notice or
other written communication received by and in the possession of Agent at the time of receipt of
such request and then only in accordance with such specific request.




     10.9 Actions in Concert. Anything in this Agreement to the contrary notwithstanding,
each Lender hereby agrees with each other Lender that no Lender shall take any action to protect or
enforce its rights arising out of this Agreement or the Term Notes (including exercising any rights
of setoff) without first obtaining the prior written consent of Agent and Requisite Lenders, it
being the intent of Lenders that any such action to protect or enforce rights under this Agreement
and the Term Notes shall be taken in concert and at the direction or with the consent of Agent or
Requisite Lenders; provided, however, that (i) each Lender shall be entitled to
file a proof of claim in any proceeding under any Insolvency Law to the extent that such Lender
disagrees with Agent’s composite proof of claim filed on behalf of all Lenders, (ii) each Lender
shall be entitled to vote its claim with respect to any plan of reorganization in any proceeding
under any Insolvency Law and (iii) each Lender shall be entitled to pursue its deficiency claim
after liquidation of all or substantially all of the Collateral and application of the proceeds
therefrom.



     10.10 Procedures. Agent is hereby authorized by each Credit Party and each other
Person to whom any Obligations are owed to establish procedures (and to amend such procedures from
time to time) to facilitate administration and servicing of the Term Loans and other matters
incidental thereto. Without limiting the generality of the foregoing, Agent is hereby authorized to
establish procedures to make available or deliver, or to accept, notices, documents and similar
items on, by posting to or submitting and/or completion on, E-Systems. The posting, completion
and/or submission by any Credit Party of any communication pursuant to an E-System shall constitute
a representation and warranty by the Credit Parties that any representation, warranty,
certification or other similar statement required by the Loan Documents to be provided, given or
made by a Credit Party in connection with any such communication is true, correct and complete
except as expressly noted in such communication or otherwise on such E-System.




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     10.11 Collateral Matters.



          (a) Lenders hereby irrevocably authorize Agent, at its option and in its sole discretion, to
release or evidence such release (or subordinate) any Liens upon any Collateral or any guaranty of
the Obligations, (i) upon the Termination Date; (ii) constituting property being sold or disposed
of if Borrower certifies to Agent that the sale or Disposition is made in compliance with this
Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may rely conclusively
on any such certificate, without further inquiry) or such sale or Disposition is approved by the
Requisite Lenders; (iii) constituting property in which Credit Parties owned no interest at the
time the Lien was granted or at any time thereafter; or (iv) constituting property leased to Credit
Parties under a lease which has expired or been terminated in a transaction permitted under this
Agreement. Upon request by Agent or Borrower at any time, Lenders will confirm in writing Agent’s
authority to release any Lien upon particular types or items of Collateral pursuant to this
Section 10.11.




          (b) Upon receipt by Agent of any authorization required pursuant to Section 10.11(a)
from Lenders of Agent’s authority to release (or subordinate) any Liens upon particular
types or items of Collateral, and upon at least five (5) Business Days’ prior written request by
Borrower, Agent shall (and is hereby irrevocably authorized by Lenders to) execute such documents
as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral;
provided, however, that (i) Agent shall not be required to execute any such
document on terms which, in Agent’s opinion, would expose Agent to liability or create any
obligation or entail any consequence other than the release of such Liens without recourse or
warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations
or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in
respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of
which shall continue to constitute part of the Collateral.




     10.12 Additional Agents. None of the Lenders or other entities identified on the
facing page of this Agreement as an “arranger” or “bookrunner” shall have any right, power,
obligation, liability, responsibility or duty under this Agreement or any other Loan Document other
than those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders
so identified shall have or be deemed to have any fiduciary relationship with any other Lender.
Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other
entities so identified in deciding to enter into this Agreement or any other Loan Document or in
taking or not taking action hereunder or thereunder.



     10.13 Distribution of Materials to Lenders.



          (a) Borrower acknowledges and agrees that the Loan Documents and all reports, notices,
communications and other information or materials provided or delivered by, or on behalf of,
Borrower hereunder (collectively, the “Borrower Materials”) may be disseminated by, or on
behalf of, Agent, and made available to, the Lenders by posting such Borrower Materials on
Intralinks® or a similar E-System (the “Borrower Workspace”). Borrower
authorizes Agent to download copies of its logos from its website and post copies thereof on the
Borrower Workspace. Borrower hereby acknowledges that certain of the Lenders may be “public-side”
Lenders (i.e., Lenders that do not wish to receive MNPI) (each, a “Public Lender”).
Borrower hereby agrees that they will use commercially reasonable efforts to identify that portion
of the Borrower Materials that may be distributed to the Public Lenders and that (i) all






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such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a
minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii)
by marking the Borrower Materials “PUBLIC,” Borrower shall be deemed to have authorized Agent and
the Lenders to treat such Borrower Materials as either publicly available information or not
material information (although it may be sensitive, confidential and proprietary) with respect to
Borrower, its Subsidiaries or their securities for purposes of United States federal and state
securities laws, (iii) all the Borrower Materials marked “PUBLIC” are permitted to be made
available through a portion of the Borrower Workspace designated “Public Investor”, and (iv) Agent
shall be entitled to treat any of the Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Borrower Workspace not designated “Public Investor.”




          (b) Each Lender represents, warrants, acknowledges and agrees that (i) the Borrower Materials
may contain MNPI concerning Borrower, its Affiliates or their securities, (ii) it has developed
compliance policies and procedures regarding the handling and use of MNPI, and (iii) it shall use
all such in accordance with Section 12.8 and any applicable laws and regulations,
including federal and state securities laws and regulations.




          (c) If any Lender has elected to abstain from receiving MNPI concerning Borrower, its
Affiliates or their securities, such Lender acknowledges that, notwithstanding such election, Agent
and/or Borrower will, from time to time, make available syndicate-information (which may contain
MNPI) as required by the terms of, or in the course of administering, the credit facilities,
including this Agreement and the other Loan Documents, to the credit contact(s) identified for
receipt of such information on the Lender’s administrative questionnaire who are able to receive
and use all syndicate-level information (which may contain MNPI) in accordance with such Lender’s
compliance policies and Contractual Obligations and applicable law, including federal and state
securities laws; provided that if such contact is not so identified in such questionnaire, the
relevant Lender hereby agrees to promptly (and in any event within one Business Day) provide such a
contact to Agent and Borrower upon oral or written request therefor by Agent or Borrower.
Notwithstanding such Lender’s election to abstain from receiving MNPI, such Lender acknowledges
that if such Lender chooses to communicate with Agent, it assumes the risk of receiving MNPI
concerning Borrower, its Affiliates or their securities.



11. ASSIGNMENT AND PARTICIPATIONS; SUCCESSORS AND ASSIGNS




     11.1 Assignment and Participations.



          (a) Subject to the terms of this Section 11.1, any Lender may make an assignment, or
sell participations in, at any time or times, the Loan Documents, Term Loans, and any Commitment or
any portion thereof or interest therein, including any Lender’s rights, title, interests, remedies,
powers or duties thereunder (other than to an Excluded Party as reasonably determined by Agent and
with Borrower’s consent with respect to any Excluded Party (such consent not to be unreasonably
withheld, conditioned or delayed)). Any assignment by a Lender shall be subject to the following
conditions:





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               (i) Assignment Agreement. Any assignment by a Lender shall require (A) the execution
of an assignment agreement (the “Assignment Agreement”) substantially in the form attached
hereto as Exhibit 11.1(a) and otherwise in form and substance reasonably satisfactory to
and acknowledged by Agent and (B) the payment of a processing and recordation fee of $3,500 by the
assignor or assignee to Agent (unless such assignment is to a Lender, an Affiliate of a Lender or
an Approved Fund). Agent shall maintain at one of its offices listed in Section 12.10 (as
may be updated from time to time pursuant to Section 12.10), a copy of each Assignment
Agreement delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive, absent manifest error, and
Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower
and the Lenders, at any reasonable time and from time to time upon reasonable prior notice.



               (ii) Minimum Amounts.



                    (A) in the case of an assignment of the entire remaining amount of the assigning Lender’s
Commitment and the Term Loans at the time owing to it or in the case of an assignment to a Lender,
an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and



                    (B) in any case not described in paragraph (a)(ii)(A) of this Section, the aggregate
amount of the Commitment (which for this purpose includes Term Loans outstanding thereunder) or, if
the applicable Commitment is not then in effect, the principal outstanding balance of the Term
Loans of the assigning Lender subject to each such assignment (determined as of the date the
Assignment Agreement with respect to such assignment is delivered to Agent or, if “Effective Date”
is specified in the Assignment Agreement, as of the Effective Date) shall not be less than
$1,000,000, and in increments of $1,000,000, unless each of (1) Agent and (2) so long as no Event
of Default under Sections 9.1 (a), (k) or (l) has occurred and is
continuing or any Event of Default under Section 9.1(b) solely with respect to Section
7.10 has occurred and is continuing, Borrower otherwise consent (each such consent not to be
unreasonably withheld or delayed, and the Borrower shall be deemed to have consented to such
assignment unless Borrower shall have objected thereto by written notice to Agent within ten (10)
Business Days after having received such Assignment Agreement).



               (iii) Proportionate Amounts. Each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loan or the Commitment assigned, except that this clause (iii) shall not
prohibit any Lender from assigning all or a portion of its rights and obligations among separate
tranches on a non-pro rata basis (if any).



               (iv) Required Consents. No consent shall be required for any assignment except to the
extent required by paragraph (a)(ii)(B) of this Section and, in addition:



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                    (A) the consent of Borrower (such consent not to be unreasonably withheld or delayed) shall be
required unless (x) an Event of Default under Sections 9.1 (a), (k), or (l)
has occurred and is continuing or any Event of Default under Section 9.1(b) solely with
respect to Section 7.10 has occurred and is continuing at the time of such assignment or
(y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund or (z) such
assignment is to or by MSSF in connection with the initial syndication of the Term Loans;



                    (B) the consent of Agent (such consent not to be unreasonably withheld or delayed) shall be
required for assignments in respect of the Term Loans to a Person who is not a Lender, an Affiliate
of a Lender or an Approved Fund;



          (b) In the case of an assignment by a Lender under this Section 11.1, the assignee
shall have, to the extent of such assignment, the same rights, benefits and obligations as all
other Lenders hereunder. The assigning Lender shall be relieved of its obligations hereunder with
respect to its Commitments or assigned portion thereof from and after the date of such assignment.
Borrower hereby acknowledges and agrees that any assignment shall give rise to a direct obligation
of Borrower to the assignee and that the assignee shall be considered to be a “Lender”. In all
instances, each Lender’s liability to make Term Loans hereunder shall be several and not joint and
shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event Agent
or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such
Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender,
execute new Term Notes in exchange for the Term Notes, if any, being assigned. Notwithstanding the
foregoing provisions of this Section 11.1, (i) any Lender may at any time pledge the
Obligations held by it and such Lender’s rights under this Agreement and the other Loan Documents
to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations
held by it and such Lender’s rights under this Agreement and the other Loan Documents to another
investment fund managed by the same investment advisor; provided, that no such pledge to a
Federal Reserve Bank shall release such Lender from such Lender’s obligations hereunder or under
any other Loan Document and (ii) no assignment shall be made to any Credit Party or any Subsidiary
of a Credit Party or any Affiliate of a Credit Party.




          (c) Any participation by a Lender of all or any part of its Commitments shall be made with the
understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender
had not sold such participation, and that the holder of any such participation shall not be
entitled to require such Lender to take or omit to take any action hereunder except actions
directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable
with respect to, the Term Loan; (ii) any extension of the final maturity date thereof; and
(iii) any release of all or substantially all of the Collateral (other than in accordance with the
terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for
purposes of Sections 2.11 and 2.14 Borrower acknowledges and agrees that a
participation shall give rise to a direct obligation of Borrower to the participant and the
participant shall be considered to be a “Lender”; provided, that, a participant shall not
be entitled to receive any greater payment under Section 2.13 than the applicable Lender
from whom it received its participation would have been entitled with respect to the participation
sold to such participant (unless the sale of the participation to the participant is made with
Borrower’s prior



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written consent). Except as set forth in the preceding sentence no Borrower or
Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender
(other than the Lender selling a participation) shall have any duty to any participant and may
continue to deal solely with the Lender selling a participation as if no such sale had occurred.




          (d) Except as expressly provided in this Section 11.1, no Lender shall, as between
Borrower and that Lender, or Agent and that Lender, be relieved of any of its obligations hereunder
as a result of any sale, assignment, transfer or negotiation of, or granting of participation in,
all or any part of the Term Loans, the Term Notes or other Obligations owed to such Lender.




          (e) Each Credit Party executing this Agreement shall assist any Lender permitted to sell
assignments or participations under this Section 11.1 as reasonably required to enable the
assigning or selling Lender to effect any such assignment or participation, including, the
execution and delivery of any and all reasonable and customary agreements, notes and other
documents and instruments as shall be requested. Each Credit Party executing this Agreement shall
certify the correctness, completeness and accuracy of all descriptions of the Credit Parties and
their respective affairs contained in any selling materials provided by them and all other
information provided by them and included in such materials, except that any Business Plan
delivered by Borrower shall only be certified by Borrower as having been prepared by Borrower in
compliance with the representations contained in Section 4.4(c). Notwithstanding anything
to the contrary contained in the Loan Documents, no Lender may assign or sell a participation to
any Excluded Party.




          (f) Any Lender may furnish information concerning Credit Parties in the possession of such
Lender from time to time to assignees and participants (including prospective assignees and
participants); provided that such Lender shall obtain from assignees or participants
confidentiality covenants substantially equivalent to those contained in Section 12.8.




          (g) So long as no Event of Default has occurred and is continuing, no Lender shall assign or
sell participations in any portion of its Term Loans or Commitments to a potential Lender or
participant, if, as of the date of the proposed assignment or sale, the assignee Lender or
participant would be subject to capital adequacy or similar requirements under Section
2.14(a), increased costs under Section 2.14(b), an inability to fund LIBOR Loans under
Section 2.14(c), or withholding taxes in accordance with Section 2.13(a).




          (h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”), may grant to a special purpose funding vehicle (an “SPC”), identified as such
in writing by the Granting Lender to Agent and Borrower, the option to provide to Borrower all or
any part of any Term Loans that such Granting Lender would otherwise be obligated to make to
Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to make the Term Loan; and (ii) if an SPC elects not to exercise such option
or otherwise fails to provide all or any part of the Term Loan, the Granting Lender shall be
obligated to make the Term Loans pursuant to the terms hereof. The making of the Term Loans by an
SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if the
Term Loans were made by such Granting Lender. No SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for



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which shall remain with the Granting
Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrower and
Agent and assign all or a portion of its interests in any Term Loans to the Granting Lender or to
any financial institutions (consented to by Borrower and Agent) providing liquidity and/or credit
support to or for the account of such SPC to support the funding or maintenance of Term Loans and
(ii) disclose on a confidential basis any non-public information relating to its Term Loans to any
rating agency, commercial paper dealer or provider of any surety, guaranty or credit or liquidity
enhancement to such SPC. This Section 11.1(h) may not be amended without the prior written
consent of each Granting Lender, all or any of whose Term Loans are being funded by an SPC at the
time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes,
including, without limitation, the approval of any amendment or waiver of any provision of any Loan
Document or the obligation to pay any amount otherwise payable by the Granting Lender under the
Loan Documents, continue to be the Lender of record hereunder.




     11.2 Successors and Assigns. This Agreement and the other Loan Documents shall be
binding on and shall inure to the benefit of each Credit Party, Agent, Lender and their respective
successors and assigns (including, in the case of any Credit Party, a debtor-in-possession on
behalf of such Credit Party), except as otherwise provided herein or therein. No Credit Party may
assign, transfer, hypothecate or otherwise convey its rights, benefits, obligations or duties
hereunder or under any of the other Loan Documents without the prior express written consent of
Agent and Lenders. Any such purported assignment, transfer, hypothecation or other conveyance by
any Credit Party without the prior express written consent of Agent and Lenders shall be void. The
terms and provisions of this Agreement are for the purpose of defining the relative rights and
obligations of each Credit Party, Agent and Lenders with respect to the transactions contemplated
hereby and no Person shall be a third party beneficiary of any of the terms and provisions of this
Agreement or any of the other Loan Documents.


12. MISCELLANEOUS




     12.1 Complete Agreement; Modification of Agreement. This Agreement shall become
effective when it shall have been executed by Borrower, the other Credit Parties signatory hereto,
the Lenders, the Collateral Agent and Agent. Thereafter, it shall be binding upon and inure to the
benefit of, but only to the benefit of, Borrower, the other Credit Parties party hereto, the
Collateral Agent, Agent, and each Lender, their respective successors and permitted assigns.
Except as expressly provided in any Loan Document, none of Borrower, any other Credit Party, any
Lender, the Collateral Agent or Agent shall have the right to assign any rights or obligations
hereunder or any interest herein. The Loan Documents constitute the complete agreement between the
parties with respect to the subject matter thereof and may not be modified, altered or amended
except as set forth in Section 12.2. Any letter of interest, commitment letter, fee letter
or confidentiality agreement, if any, between any Credit Party, the Collateral Agent and Agent or
any Lender or any of their respective Affiliates, predating this Agreement and relating to a
financing of substantially similar form, purpose or effect shall be superseded by this Agreement.
Notwithstanding the foregoing, the Fee Letter shall survive the execution and delivery of this
Agreement and shall continue to be binding obligations of the parties in the manner and for the
period provided for therein.



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     12.2 Amendments and Waivers.



          (a) Except for actions expressly permitted to be taken by Agent, no amendment, modification,
termination or waiver of any provision of this Agreement or any other Loan Document, or any consent
to any departure by any Credit Party therefrom, shall in any event be effective unless the same
shall be in writing and signed by Agent and Borrower, and by Requisite Lenders or all affected
Lenders as set forth in Section 12.2(c). Except as set forth in clauses (b) and
(c) below, all such amendments, modifications, terminations or waivers requiring the
consent of any Lenders shall require the written consent of Requisite Lenders.




          (b) No amendment, modification, termination or waiver of or consent with respect to any
provision of this Agreement that waives compliance with the conditions precedent set forth in
Section 3.1 to the making of any Term Loans shall be effective unless the same shall be in
writing and signed by Agent, Lenders and Borrower. Notwithstanding anything contained in this
Agreement to the contrary, no waiver or consent with respect to any Default or any Event of Default
shall be effective for purposes of the conditions precedent to the making of Term Loans unless the
same shall be in writing and signed by Agent, Requisite Lenders and Borrower.




          (c) No amendment, modification, termination or waiver shall, unless in writing and signed by
Agent and each Lender directly affected thereby: (i) increase the principal amount of any Lender’s
Commitment (which action shall be deemed only to affect those Lenders whose Commitments are
increased and may be approved by Requisite Lenders, including those Lenders whose Commitments are
increased); (ii) reduce the principal of, rate of interest on, composition of interest on (i.e.,
cash pay or payment-in-kind) or Fees payable with respect to any Term Loans of any affected Lender
(provided, however, in each case, the waiver of any Default or Event of Default or
the implementation of Default Rate interest shall not constitute a reduction in the rate of
interest or any Fee); (iii) extend any scheduled payment date (other than payment dates of
mandatory prepayments under Section 2.3(b)(i)-(iv)) or final maturity date of the principal
amount of the Term Loans of any Lender; (iv) waive, forgive, defer, extend or postpone any payment
of interest or Fees as to any affected Lender (provided, however, in each case, the
waiver of any Default or Event of Default or the implementation of Default Rate interest shall not
constitute a reduction in the rate of interest or any Fee); (v) release any Guaranty or, except as
otherwise permitted herein or in the other Loan Documents, release (or subordinate the Lien of
Agent in), or permit any Credit Party to sell or otherwise dispose of all or substantially all of
the Term Loan Priority Collateral (which action shall be deemed to directly affect all Lenders);
(vi) change the percentage of the Commitments or of the aggregate unpaid principal amount of the
Term Loans that shall be required for Lenders or any of them to take any action hereunder;
(vii) amend or waive this Section 12.2 or the definitions of the term “Requisite Lenders”
insofar as such definition affects the substance of this Section 12.2; or (viii) amend the
allocation and waterfalls in Section 2.9. Furthermore, no amendment, modification,
termination or waiver affecting the rights or duties of Agent or the Collateral Agent under this
Agreement or any other Loan Document, or any release of any Guaranty or Collateral requiring a
writing signed by all Lenders, shall be effective unless in writing and signed by Agent or the
Collateral Agent, as the case may be, in addition to Lenders required hereinabove to take such
action. Each amendment, modification, termination or waiver shall be effective only in the
specific instance and for the specific purpose for which it was given. No amendment, modification,
termination or waiver shall be required for Agent to take additional Collateral pursuant to any
Loan Document. No amendment, modification, termination or waiver of any provision of any Note
shall be effective without the written concurrence of the holder of that Note. No notice to or
demand on any



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Credit Party in any case shall entitle such Credit Party or any other Credit Party to
any other or further notice or demand in similar or other circumstances. Any amendment,
modification, termination, waiver or consent effected in accordance with this Section 12.2
shall be binding upon each holder of the Obligations at the time outstanding and each future holder
of the Obligations.




          (d) If, in connection with any proposed amendment, modification, waiver or termination (a
“Proposed Change”) requiring the consent of all Lenders or all affected Lenders, the
consent of Requisite Lenders is obtained, but the consent of other Lenders whose consent is
required is not obtained (any such Lender whose consent is not obtained as described in this
subsection (d) being referred to as a “Non-Consenting Lender”), then, with respect to this
subsection (d), so long as Agent is not a Non-Consenting Lender, at Borrower’s request,
Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s consent and in
Agent’s sole discretion (but shall have no obligation) to purchase from any such Non-Consenting
Lenders, and any such Non-Consenting Lenders agree that they shall, upon Agent’s request, sell and
assign to Agent or such Person reasonably acceptable to Agent, all of the Commitments of any such
Non-Consenting Lenders for an amount equal to the principal balance of all Term Loans held by such
Non-Consenting Lenders and all accrued interest and Fees with respect thereto through the date of
sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In
the event that a Non-Consenting Lender does not execute an Assignment Agreement pursuant to
Section 11.1 within five (5) Business Days after receipt by such Non-Consenting Lender of
notice of replacement pursuant to this Section 12.2(d) and presentation to such
Non-Consenting Lender of an Assignment Agreement evidencing an assignment pursuant to this
Section 12.2(d), Borrower shall be entitled (but not obligated) to execute such an
Assignment Agreement on behalf of any such Non-Consenting Lender, and any such Assignment Agreement
so executed by Borrower, the replacement Lender and Agent, shall be effective for purposes of this
Section 12.2(d) and Section 11.1.




          (e) Upon payment in full in cash and performance of all of the Obligations (other than
indemnification Obligations), termination of the Commitments and a release of all claims against
Agent and Lenders, and so long as no suits, actions, proceedings or claims are pending or
threatened against any Indemnified Person asserting any damages, losses or liabilities that are
Indemnified Liabilities, Agent shall deliver to Borrower termination statements, mortgage releases
and other documents necessary or appropriate to evidence the termination of the Liens securing
payment of the Obligations.




          (f) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated)
with the written consent of the Requisite Lenders, Agent, and Borrower (i) to add one or more
additional credit facilities to this Agreement and to permit the extensions of credit from time to
time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably
in the benefits of this Agreement and the other Loan Documents with the Term Loans and the accrued
interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such
credit facilities in any determination of the Requisite Lenders.




          (g) In addition, notwithstanding the foregoing, this Agreement may be amended with the written
consent of Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as
defined below) to permit the refinancing of all outstanding Term


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Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder (“Replacement Term Loans”);
provided that (i) the aggregate principal amount of such Replacement Term Loans shall not exceed
the aggregate principal amount of such Refinanced Term Loans, (ii) the Applicable Margin for such
Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term
Loans, (iii) the weighted average life to maturity of such Replacement Term Loans shall not be
shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of
such refinancing and (iv) all other terms applicable to such Replacement Term Loans shall be
substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans
than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for
covenants and other terms applicable to any period after the latest final maturity of the Term
Loans in effect immediately prior to such refinancing.




          (h) Further, notwithstanding anything to the contrary contained in Section 12.2, if
Agent and Borrower shall have jointly identified an obvious error or any error or omission of a
technical nature, in each case that is immaterial (as determined by Agent), in any provision of the
Loan Documents, then Agent and Borrower shall be permitted to amend such provisions and such
amendment shall become effective without any further action or consent of any other party to any
Loan Document if the same is not objected to in writing by the Requisite Lenders within ten (10)
Business Days following receipt of notice thereof.




     12.3 Fees and Expenses. Borrower shall reimburse: (i) Agent and the Collateral Agent
for all reasonable documented fees, reasonable documented out-of-pocket costs and expenses
(including the reasonable fees and reasonable documented out-of-pocket expenses of all of its
counsel, advisors, consultants and auditors); and (ii) Agent, the Collateral Agent (and, with
respect to clauses (b), (c) and (d) below, all Lenders) for all reasonable
out-of-pocket fees, costs and expenses, including the reasonable documented fees, reasonable
documented out-of-pocket costs and expenses of counsel or other advisors (including environmental
and management consultants and appraisers), incurred in connection with the negotiation,
preparation and filing and/or recordation of the Loan Documents, and incurred in connection with:



          (a) any amendment, modification or waiver of, consent with respect to, or termination of, any
of the Loan Documents or Related Transactions Documents or advice in connection with the
syndication and administration of the Term Loans made pursuant hereto or its rights hereunder or
thereunder;




          (b) any litigation, contest, dispute, suit, proceeding or action (whether instituted by Agent,
any Lender, any Credit Party or any other Person and whether as a party, witness or otherwise) in
any way relating to the Collateral, any of the Loan Documents and the transactions contemplated
thereby or any other agreement to be executed or delivered in connection herewith or therewith,
including any litigation, contest, dispute, suit, case, proceeding or action, and any appeal or
review thereof; in connection with a case commenced by or against any or all of the Credit Parties
or any other Person that may be obligated to Agent by virtue of the Loan Documents; including any
such litigation, contest, dispute, suit, proceeding or action arising in connection with any
work-out or restructuring of the Term Loans during the pendency of one or more Events of Default;
provided that in the case of reimbursement of counsel for Lenders other than Agent, such
reimbursement shall be limited to one counsel for all such




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Lenders; provided,
further, that no Person shall be entitled to reimbursement under this clause (c) in
respect of any litigation, contest, dispute, suit, proceeding or action to the extent any of the
foregoing results from such Person’s gross negligence, bad faith or willful misconduct (as
determined by a court of competent jurisdiction in a final and non-appealable judgment);
provided, further, that no Indemnified Person will be indemnified for any such
cost, expense or liability to the extent of any dispute solely among Indemnified Persons other than
claims against Agent or Collateral Agent, in such capacity, in connection with fulfilling any such
roles;




          (c) any attempt to enforce any remedies of Agent against any or all of the Credit Parties or
any other Person that may be obligated to Agent or any Lender by virtue of any of the Loan
Documents, including any such attempt to enforce any such remedies in the course of any work-out or
restructuring of the Term Loans during the pendency of one or more Events of Default;
provided, that in the case of reimbursement of counsel for Lenders other than Agent, such
reimbursement shall be limited to one counsel for all such Lenders;




          (d) any workout or restructuring of the Term Loans upon the occurrence and during the
continuance of one or more Events of Default; and




          (e) efforts to (i) monitor the Term Loans or any of the other Obligations, (ii) evaluate,
observe or assess any of the Credit Parties or their respective affairs, and (iii) verify, protect,
evaluate, assess, appraise, audit, collect, sell, liquidate or otherwise dispose of any of the
Collateral; including, as to each of clauses (a) through (d) above, all reasonable
attorneys’ and other professional and service providers’ reasonable documented fees arising from
such services and other advice, assistance or other representation, including those in connection
with any appellate proceedings, and all reasonable documented out-of-pocket expenses, costs,
charges and other fees incurred by such counsel and others in connection with or relating to any of
the events or actions described in this Section 12.3. All amounts under this Section
12.3 shall be payable not later than 20 days after written demand therefore (together with
reasonably detailed supporting documentation submitted to a Financial Officer of Borrower).
Without limiting the generality of the foregoing, such reasonable documented out-of-pocket
expenses, costs, charges and fees may include: reasonable documented out-of-pocket fees, costs and
expenses of accountants, environmental advisors, appraisers, investment bankers, management,
internal auditors, financial, turnaround and other consultants and paralegals; court costs and
expenses; photocopying and duplication expenses; court reporter fees, costs and expenses; long
distance telephone charges; air express charges; telegram or telecopy charges; secretarial overtime
charges; and expenses for travel, lodging and food paid or incurred in connection with the
performance of such legal or other advisory services.




     12.4 No Waiver. Agent’s or any Lender’s failure, at any time or times, to require
strict performance by the Credit Parties of any provision of this Agreement or any other Loan
Document shall not waive, affect or diminish any right of Agent or such Lender thereafter to demand
strict compliance and performance herewith or therewith. Any suspension or waiver of an Event of
Default shall not suspend, waive or affect any other Event of Default whether the same is prior or
subsequent thereto and whether the same or of a different type. Subject to the provisions of
Section 12.2, none of the undertakings, agreements, warranties, covenants and
representations of any Credit Party contained in this Agreement or any of the other Loan Documents
and no Default or Event of Default by any Credit Party shall be deemed to have been



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suspended or
waived by Agent or any Lender, unless such waiver or suspension is by an instrument in writing
signed by an officer of or other authorized employee of Agent and the applicable Requisite Lenders,
and directed to Borrower specifying such suspension or waiver.



     12.5 Remedies. Agent’s and Lenders’ rights and remedies under this Agreement shall be
cumulative and nonexclusive of any other rights and remedies that Agent or any Lender may have
under any other agreement, including the other Loan Documents, by operation of law or otherwise.
Recourse to the Collateral shall not be required.



     12.6 Severability. Wherever possible, each provision of this Agreement and the other
Loan Documents shall be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement or any other Loan Document shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity without invalidating the remainder of such provision or the remaining
provisions of this Agreement or such other Loan Document.



     12.7 Conflict of Terms. Except as otherwise provided in this Agreement or any of the
other Loan Documents by specific reference to the applicable provisions of this Agreement, and
subject to the immediately following sentence, if any provision contained in this Agreement
conflicts with any provision in any of the other Loan Documents, the provision contained in this
Agreement shall govern and control.



     12.8 Confidentiality. Each Lender, Collateral Agent and Agent agrees to use all
reasonable efforts to maintain, in accordance with its customary practices, the confidentiality of
information obtained by it pursuant to any Loan Document and designated in writing by any Credit
Party as confidential, except that such information may be disclosed (i) with Borrower’s consent,
(ii) to Related Persons of such Lender, Collateral Agent or Agent, as the case may be, that are
advised of the confidential nature of such information and are instructed to keep such information
confidential in accordance with the terms hereof, (iii) to the extent such information presently is
or hereafter becomes (A) publicly available other than as a result of a breach of this Section
12.8 or (B) available to such Lender, Collateral Agent or Agent or any of their Related
Persons, as the case may be, from a source (other than any Credit Party) not known by them to be
subject to disclosure restrictions, (iv) to the extent disclosure is required by applicable law or
other legal process or requested or demanded by any Governmental Authority (in which case Agent
shall notify Borrower to the extent not prohibited by law or legal process), (v) to the extent
necessary or customary for inclusion in league table measurements, (vi) (A) to the National
Association of Insurance Commissioners or any similar organization, any examiner or any nationally
recognized rating agency or (B) otherwise to the extent consisting of general portfolio information
that does not identify Credit Parties, (vii) other than to Excluded Parties, to current or
prospective assignees, SPVs (including the investors or prospective investors therein) or
participants, direct or contractual counterparties to any Swap Contracts and to their respective
Related Persons, in each case to the extent such assignees, investors, participants, counterparties
or Related Persons agree to be bound by provisions substantially similar to the provisions of this
Section 12.8 (and such Person may disclose information to their respective Related Persons in
accordance with clause (ii) above), (viii) to any other party hereto, and (ix) in connection with
the exercise or enforcement of any right or remedy under any Loan Document, in connection with any
litigation or other proceeding to which such Lender, Collateral Agent or Agent or any



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of their
Related Persons is a party or bound, or to the extent necessary to respond to public statements or
disclosures by Credit Parties or their Related Persons referring to a Lender, Collateral Agent or
Agent or any of their Related Persons. In the event of any conflict between the terms of this
Section 12.8 and those of any Loan Document, the terms of this Section 12.8 shall
govern.



     Notwithstanding anything to the contrary set forth herein or in any other written or oral
understanding or agreement to which the parties hereto are parties or by which they are bound, the
parties acknowledge and agree that (i) any obligations of confidentiality contained herein and
therein do not apply and have not applied to the federal tax treatment and federal tax structure of
the Term Loans (the “Transactions”) (and any related transactions or arrangements) from the
commencement of discussions between the parties, and (ii) each party (and each of its employees,
representatives or other agents) may disclose to any and all persons, without limitation of any
kind, the federal tax treatment and federal tax structure of the Transactions and all materials of
any kind (including opinions or other tax analyses) that are provided to such party relating to
such tax treatment and tax structure. The preceding sentence is intended to cause the Transactions
to be treated as not having been offered under conditions of confidentiality for purposes of
Section 1.6011-4(b)(3) (or any successor provision) of the Treasury Regulations promulgated under
Section 6011 of the Internal Revenue Code of 1986, as amended, and shall be construed in a manner
consistent with such purpose. Subject to the proviso with respect to disclosure in the first
sentence of this paragraph, each party hereto acknowledges that it has no proprietary or exclusive
rights to the federal tax structure of the Transactions or any federal tax matter or federal tax
idea related to the Transactions.



     12.9 GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE LOAN
DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THE
LOAN DOCUMENTS AND THE OBLIGATIONS SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. EACH PARTY HERETO HEREBY CONSENTS
AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK,
NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE
CREDIT PARTIES, AGENT AND LENDERS PERTAINING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
RELATED TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS; PROVIDED, THAT AGENT, LENDERS AND THE CREDIT PARTIES ACKNOWLEDGE
THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK
COUNTY; PROVIDED, FURTHER, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR
OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION
TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF AGENT. EACH CREDIT PARTY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE
TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN



122









 







ANY SUCH COURT, AND EACH CREDIT PARTY
HEREBY WAIVES ANY OBJECTION THAT SUCH CREDIT PARTY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO
THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY
HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY
SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH CREDIT PARTY AT THE ADDRESS SET FORTH IN
SECTION 12.10 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH
CREDIT PARTY’S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE UNITED STATES MAILS,
PROPER POSTAGE PREPAID.



     12.10 Notices.



     (a) Addresses. All notices, demands, requests, directions and other communications
required or expressly authorized to be made by this Agreement shall, whether or not specified to be
in writing but unless otherwise expressly specified to be given by any other means, be given in
writing and (i) addressed to (A) the party to be notified and sent to the address or facsimile
number indicated in this Section 12.10 (or to such other address as may be hereafter
notified by the respective parties hereto), or (B) otherwise to the party to be notified at its
address specified on the signature page of any applicable Assignment Agreement, (ii) posted to any
other E-System set up by or at the direction of Agent in an appropriate location or (iii) addressed
to such other address as shall be notified in writing (A) in the case of Borrower, and Agent, to
the other parties hereto and (B) in the case of all other parties, to Borrower and Agent.
Transmission by electronic mail (including E-Fax, even if transmitted to the fax numbers set forth
in clause (i) above) shall not be sufficient or effective to transmit any such notice under
this clause (a) unless such transmission is an available means to post to any E-System.
Notice addresses as of the Closing Date shall be as set forth below:



	 	 	 

	 	(A)

	If to Agent, at
	 

	 	Morgan Stanley Senior Funding, Inc.
	 

	 	 1 Pierrepont Plaza, 7th Floor
	 

	 	Brooklyn, New York 11201
	 

	 	Attention: Michael Gavin
	 

	 	Telephone No.: (718) 754-4041
	 

	 	Email: Michael.A.Gavin@morganstanley.com
	 
	 	 
	 

	 	Attention: David Ingram
	 

	 	Telecopier No.: (212) 507-6680
	 

	 	Telephone No.: (718) 754-7412
	 

	 	Email: David.Ingram@morganstanley.com
	 
	 	with copies to:






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	 	Paul Hastings Janofsky & Walker LLP
	 

	 	 75 East 55th Street
	 

	 	New York, New York 10022
	 

	 	Attention: Leslie A. Plaskon, Esq.
	 

	 	Telecopier No.: (212) 309-4090
	 

	 	Telephone No.: (212) 318-6421
	 
	 	 
	 	(B)
	If to Borrower at
	 

	 	Visteon Corporation
	 

	 	One Village Center Drive
	 

	 	Van Buren Township, Michigan 48111
	 

	 	Attention: Michael Lewis
	 

	 	Telecopier No.: (734) 736-5583
	 

	 	Telephone No.: (734) 710-5793
	 
	 	 
	 	with copies to:
	 	 	 
	 

	 	Kirkland & Ellis LLP
	 

	 	 300 North LaSalle Street
	 

	 	Chicago, Illinois 60654
	 

	 	Attention: Daryll V. Marshall
	 

	 	Telecopier No.: (312) 862-3296
	 

	 	Telephone No.: (312) 862-2200






               (b) Effectiveness.



                    (i) All communications described in clause (a) above and all other notices, demands, requests
and other communications made in connection with this Agreement shall be effective and be deemed to
have been received (i) if delivered by hand, upon personal delivery, (ii) if delivered by overnight
courier service, one (1) Business Day after delivery to such courier service, (iii) if delivered by
mail, three (3) Business Days after deposit in the mail, (iv) if delivered by facsimile or
electronic mail (other than to post to an E-System pursuant to clause (a) above) upon sender’s
receipt of confirmation of proper transmission and (v) if delivered by posting to any E-System, on
the later of the date of such posting in an appropriate location and the date access to such
posting is given to the recipient thereof in accordance with the standard procedures applicable to
such E-System. Failure or delay in delivering copies of any notice, demand, request, consent,
approval, declaration or other communication to any Person (other than Borrower or Agent)
designated in Section 12.10 to receive copies shall in no way adversely affect the
effectiveness of such notice, demand, request, consent, approval, declaration or other
communication. The giving of any notice required hereunder may be waived in writing by the party
entitled to receive such notice.



                    (ii) The posting, completion and/or submission by any Credit Party of any communication
pursuant to an E System shall constitute a representation and warranty by the Credit Parties that
any representation, warranty, certification or other similar statement required by the Loan
Documents to be provided, given or made by a Credit Party in connection with any



124









 







such communication
is true, correct and complete (to the extent required under the Loan Documents) except as expressly
noted in such communication or E-System.



          (c) Each Lender shall notify Agent in writing of any changes in the address to which notices
to such Lender should be directed, of addresses of its lending office, of payment instructions in
respect of all payments to be made to it hereunder and of such other administrative information as
Agent shall reasonably request.




     12.11 Section Titles. The Section titles and Table of Contents contained in this
Agreement are and shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreement between the parties hereto.



     12.12 Counterparts. This Agreement may be executed in any number of separate
counterparts and by different parties in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement. Signature pages may be detached from multiple separate counterparts and attached to a
single counterpart. Delivery of an executed signature page of this Agreement by facsimile
transmission or Electronic Transmission shall be as effective as delivery of a manually executed
counterpart hereof.



     12.13 WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX
FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT
PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION
RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE
LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO KNOWINGLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG
AGENT, LENDERS AND ANY CREDIT PARTY ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS RELATED THERETO.



     12.14 Press Releases and Related Matters. Each Credit Party executing this Agreement
agrees that neither it nor its Affiliates will in the future issue any press releases or other
public disclosure using the name of MSSF or its affiliates or referring to this Agreement, the
other Loan Documents or the Related Transactions Documents without at least two (2) Business Days’
prior notice to MSSF and without the prior written consent of MSSF unless (and only to the extent
that) such Credit Party or Affiliate is required to do so under law and then, in any event, such
Credit Party or Affiliate will consult with MSSF before issuing such press release or other public
disclosure. Each Credit Party consents to the publication by Agent or any Lender of advertising
material relating to the financing transactions contemplated by this Agreement using Borrower’s
name, product photographs, logo or trademark. Agent reserves the right to provide to industry



125









 







trade organizations information necessary and customary for inclusion in league table measurements.



     12.15 Reinstatement. This Agreement shall remain in full force and effect and
continue to be effective should any petition be filed by or against Borrower for liquidation or
reorganization, should Borrower become insolvent or make an assignment for the benefit of any
creditor or creditors or should a receiver, interim receiver, receiver and manager or trustee be
appointed for all or any significant part of Borrower’s assets, and shall continue to be effective
or to be reinstated, as the case may be, if at any time payment and performance of the Obligations,
or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee of the Obligations, whether as a “voidable
preference,” “fraudulent conveyance,” or otherwise, all as though such payment or performance had
not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored
or returned, the Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.



     12.16 Advice of Counsel. Each of the parties represents to each other party hereto
that it has discussed this Agreement and, specifically, the provisions of Sections 12.9 and
12.13, with its counsel.



     12.17 No Strict Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly by the parties
hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.



     12.18 Patriot Act Notice. Each Lender and Agent (for itself and not on behalf of any
Lender) hereby notifies the Credit Parties that pursuant to the requirements of the Patriot Act,
such Lender and Agent may be required to obtain, verify and record information that identifies the
Credit Parties, which information includes the name and address of the Credit Parties and other
information that will allow such Lender and Agent, as the case may be, to identify the Credit
Parties in accordance with the Patriot Act.



     12.19 Currency Equivalency Generally. For the purposes of making valuations or
computations under this Agreement (but not for purposes of the preparation of any financial
statements delivered pursuant hereto), and in particular, without limitation, for purposes of
valuations or computations under Sections 2.3(b), 4, 6, 7 and
9, unless expressly provided otherwise, where a reference is made to a dollar amount the
amount is to be considered as the amount in Dollars and, therefor, each other currency shall be
converted into the equivalent amount thereof in Dollars in accordance with GAAP.



     12.20 Judgment Currency.



          (a) If, for the purpose of obtaining or enforcing judgment against any Credit Party in any
court in any jurisdiction, it becomes necessary to convert into any other currency (such other
currency being hereinafter in this Section 12.20 referred to as the “Judgment
Currency”) an amount due under any Loan Document in any currency (the “Obligation



126









 






Currency”) other than the Judgment Currency, the conversion shall be made at the rate of
exchange prevailing on the Business Day immediately preceding (i) the date of actual payment of the
amount due, in the case of any proceeding in the courts of any jurisdiction that will give effect
to such conversion being made on such earlier date, or (ii) the date on which the judgment is
given, in the case of any proceeding in the courts of any other jurisdiction (the applicable date
as of which such conversion is made pursuant to this Section 12.20 being hereinafter in
this Section 12.20 referred to as the “Judgment Conversion Date”).




          (b) If, in the case of any proceeding in the court of any jurisdiction referred to in
Section 12.20(a), there is a change in the rate of exchange prevailing between the Judgment
Conversion Date and the date of actual receipt for value of the amount due, the applicable Credit
Party shall pay such additional amount (if any, but in any event not a lesser amount) as may be
necessary to ensure that the amount actually received in the Judgment Currency, when converted at
the rate of exchange prevailing on the date of payment, will produce the amount of the Obligation
Currency which could have been purchased with the amount of the Judgment Currency stipulated in the
judgment or judicial order at the rate of exchange prevailing on the Judgment Conversion Date. Any
amount due from a Credit Party under this Section 12.20(b) shall be due as a separate debt
and shall not be affected by judgment being obtained for any other amounts due under or in respect
of any of the Loan Documents.




          (c) The term “rate of exchange” in this Section 12.20 means the rate of exchange at
which Agent would, on the relevant date at or about 1:00 p.m. (New York time), be prepared to sell
the Obligation Currency against the Judgment Currency.




     12.21 Electronic Transmissions.



          (a) Authorization. Subject to the provisions of Section 12.10(a), each of
Agent, Lenders, each Credit Party and each of their Related Persons, is authorized (but not
required) to transmit, post or otherwise make or communicate, in its sole discretion, Electronic
Transmissions in connection with any Loan Document and the transactions contemplated therein.
Borrower and each Lender party hereto acknowledges and agrees that the use of Electronic
Transmissions is not necessarily secure and that there are risks associated with such use,
including risks of interception, disclosure and abuse and each indicates it assumes and accepts
such risks by hereby authorizing the use of Electronic Transmissions.




          (b) Signatures. Subject to the provisions of Section 12.10(a), (i)(A) no
posting to any E-System shall be denied legal effect merely because it is made electronically,
(B) each E-Signature on any such posting shall be deemed sufficient to satisfy any requirement for
a “signature” and (C) each such posting shall be deemed sufficient to satisfy any requirement for a
“writing”, in each case including pursuant to any Loan Document, any applicable provision of any
Code, the federal Uniform Electronic Transactions Act, the Electronic Signatures in Global and
National Commerce Act and any substantive or procedural applicable law governing such subject
matter, (ii) each such posting that is not readily capable of bearing either a signature or a
reproduction of a signature may be signed, and shall be deemed signed, by attaching to, or
logically associating with such posting, an E-Signature, upon which Agent, each Lender and each
Credit Party may rely and assume the authenticity thereof, (iii) each such posting containing a
signature, a reproduction of a signature or an E-Signature shall, for all intents and purposes,



127









 






have the same effect and weight as a signed paper original and (iv) each party hereto or
beneficiary hereto agrees not to contest the validity or enforceability of any posting on any
E-System or E-Signature on any such posting under the provisions of any applicable law requiring
certain documents to be in writing or signed; provided, however, that nothing
herein shall limit such party’s or beneficiary’s right to contest whether any posting to any
E-System or E-Signature has been altered after transmission.




          (c) Separate Agreements. All uses of an E-System shall be governed by and subject to,
in addition to Section 12.10 and this Section 12.21, the separate terms, conditions
and privacy policy posted or referenced in such E-System (or such terms, conditions and privacy
policy as may be updated from time to time, including on such E-System) and related Contractual
Obligations executed by Agent and Credit Parties in connection with the use of such E-System.




          (d) LIMITATION OF LIABILITY. ALL E-SYSTEMS AND ELECTRONIC TRANSMISSIONS SHALL BE
PROVIDED “AS IS” AND “AS AVAILABLE”. NONE OF AGENT, ANY LENDER OR ANY OF THEIR RELATED PERSONS
WARRANTS THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY E-SYSTEMS OR ELECTRONIC TRANSMISSION AND
DISCLAIMS ALL LIABILITY FOR ERRORS OR OMISSIONS THEREIN. NO WARRANTY OF ANY KIND IS MADE BY AGENT,
ANY LENDER OR ANY OF THEIR RELATED PERSONS IN CONNECTION WITH ANY E-SYSTEMS OR ELECTRONIC
COMMUNICATION, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS. Each of
Borrower, each other Credit Party executing this Agreement and each Lender agrees that Agent has no
responsibility for maintaining or providing any equipment, Software, services or any testing
required in connection with any Electronic Transmission or otherwise required for any E-System.




     12.22 Independence of Provisions. The parties hereto acknowledge that this Agreement
and the other Loan Documents may use several different limitations, tests or measurements to
regulate the same or similar matters, and that such limitations, tests and measurements are
cumulative and must each be performed, except as expressly stated to the contrary in this
Agreement.



     12.23 No Third Parties Benefited. This Agreement is made and entered into for the
sole protection and legal benefit of Borrower, the Lenders, Agent, Collateral Agent and their
permitted successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents. Neither Agent nor any Lender nor any Credit Party
(except as otherwise specifically provided under the Loan Documents) shall have any obligation to
any Person not a party to this Agreement or the other Loan Documents.



128









 







     12.24 Relation to Intercreditor Agreement.




          (a) The parties hereto acknowledge that Agent’s rights and the Credit Parties’ obligations
hereunder are subject to this Agreement and the Intercreditor Agreement, dated as of the date
hereof (as amended, restated, supplemented or otherwise modified from time to time).




          (b) Notwithstanding anything herein to the contrary, the lien and security interests granted
to Agent pursuant to this Agreement and the exercise of any right or remedy by Agent hereunder are
subject to the provisions of the Intercreditor Agreement. In the event of any conflict between the
terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement
shall govern and control.




[SIGNATURE PAGES FOLLOW]




129









 





     IN WITNESS WHEREOF, this Agreement has been duly executed as of the date first written
above.



	 	 	 	 	 
	 	BORROWER:



VISTEON CORPORATION

 	 
	 	By:  	/s/ Michael P. Lewis 	 
	 	 	Name:  	Michael P. Lewis	 
	 	 	Title:  	Vice President	 



TERM LOAN CREDIT AGREEMENT


 









 





	 	 	 	 	 
	 	AGENT:



MORGAN STANLEY SENIOR FUNDING, INC., 
as Lead Arranger,Sole Bookrunner, Agent,
 Collateral Agent and Lender

 	 
	 	By:  	/s/ Robert Kubick	 
	 	 	Name:  	Robert Kubick	 
	 	 	Title:  	Authorized Signatory	 



TERM LOAN CREDIT AGREEMENT

 









 






	 	 	 	 	 




     The following Persons are signatories to this Agreement in their capacity as Credit
Parties and not as Borrower.



	 	 	 	 	 
	 	CREDIT PARTIES:



VC AVIATION SERVICES, LLC

 	 
	 	By:  	/s/ Michael P. Lewis	 
	 	 	Name:  	Michael P. Lewis	 
	 	 	Title:  	Treasurer	 
	 
	 	VISTEON ELECTRONICS CORPORATION

 	 
	 	By:  	/s/ Michael P. Lewis	 
	 	 	Name:  	Michael P. Lewis	 
	 	 	Title:  	Treasurer	 
	 
	 	VISTEON GLOBAL TECHNOLOGIES, INC.

 	 
	 	By:  	/s/ Michael P. Lewis	 
	 	 	Name:  	Michael P. Lewis	 
	 	 	Title:  	Treasurer	 
	 
	 	VISTEON INTERNATIONAL HOLDINGS, INC.

 	 
	 	By:  	/s/ Michael P. Lewis	 
	 	 	Name:  	Michael P. Lewis 	 
	 	 	Title:  	Treasurer	 
	 
	 	VISTEON GLOBAL TREASURY, INC.

 	 
	 	By:  	/s/ Michael P. Lewis	 
	 	 	Name:  	Michael P. Lewis	 
	 	 	Title:  	Vice President 	 



TERM LOAN CREDIT AGREEMENT


 









 






	 	 	 	 	 



	 	 	 	 	 
	 	VISTEON EUROPEAN HOLDINGS, INC.

 	 
	 	By:  	/s/ Michael P. Lewis	 
	 	 	Name:  	Michael P. Lewis	 
	 	 	Title:  	Treasurer 	 
	 
	 	VISTEON SYSTEMS, LLC

 	 
	 	By:  	/s/ Michael P. Lewis	 
	 	 	Name:  	Michael P. Lewis	 
	 	 	Title:  	Treasurer	 
	 
	 	VISTEON INTERNATIONAL BUSINESS DEVELOPMENT, LLC

 	 
	 	By:  	/s/ Michael P. Lewis	 
	 	 	Name:  	Michael P. Lewis	 
	 	 	Title:  	Treasurer 	 



TERM LOAN CREDIT AGREEMENT


 









 






	 	 	 	 	 



ANNEX A

to

CREDIT AGREEMENT




WIRE TRANSFER INFORMATION



	 	 	 
	Name:

	 	MSSFI USD
	Bank:

	 	CITIBANK, N.A.
	 

	 	New York, New York 10043
	ABA#:

	 	 021-000-089
	Account #:

	 	 406-99-776
	Account Name:

	 	Morgan Stanley Senior Funding, Inc.
	Reference:

	 	Visteon Corporation






B-1









 






ANNEX B




to

CREDIT AGREEMENT




COMMITMENTS





	 	 	 	 	 

	 	 	 	 	Lender(s)

	Term Loan Commitment:
	$	500,000,000	 	 	            Morgan Stanley Senior Funding, Inc.

	 	 	 	 






D-1









 






SCHEDULE (2.1)

to

CREDIT AGREEMENT




AGENT’S REPRESENTATIVES



Morgan Stanley Senior Funding, Inc.

1 Pierrepont Plaza, 7th Floor

Brooklyn, New York 11201

Attention: Michael Gavin

Telephone No.: (718) 754-4041

Email: Michael.A.Gavin@morganstanley.com




Attention: David Ingram

Telecopier No.: (212) 507-6680

Telephone No.: (718) 754-7412

Email: David.Ingram@morganstanley.com

















 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	1. DEFINITIONS, ACCOUNTING PRINCIPLES AND OTHER INTERPRETIVE MATTERS
	 	 	2	 
	 
	1.1 Definitions
	 	 	2	 
	1.2 Rules of Construction
	 	 	40	 
	1.3 Interpretive Matters
	 	 	40	 
	 
	2. AMOUNT AND TERMS OF CREDIT
	 	 	41	 
	 
	2.1 Term Facilities
	 	 	41	 
	2.2 Procedure for Term Loan Borrowings
	 	 	42	 
	2.3 Prepayments
	 	 	42	 
	2.4 Use of Proceeds
	 	 	45	 
	2.5 Interest and Applicable Margins
	 	 	45	 
	2.6 Cash Management
	 	 	47	 
	2.7 Fees
	 	 	47	 
	2.8 Receipt of Payments
	 	 	47	 
	2.9 Application and Allocation of Payments
	 	 	48	 
	2.10 Loan Account and Accounting
	 	 	48	 
	2.11 Indemnity
	 	 	49	 
	2.12 Access
	 	 	50	 
	2.13 Taxes
	 	 	50	 
	2.14 Capital Adequacy; Increased Costs; Illegality
	 	 	52	 
	2.15 Single Loan
	 	 	54	 
	2.16 Incremental Term Loans
	 	 	54	 
	 
	3. CONDITIONS PRECEDENT
	 	 	55	 
	 
	3.1 Conditions to the Term Loans
	 	 	55	 
	3.2 Further Conditions to Each Continuation/Conversion
	 	 	62	 
	 
	4. REPRESENTATIONS AND WARRANTIES
	 	 	62	 
	 
	4.1 Corporate Existence; Compliance with Law
	 	 	62	 
	4.2 Jurisdiction of Organization; Chief Executive Offices; Collateral Locations; FEIN
	 	 	63	 
	4.3 Corporate Power; Authorization; Enforceable Obligations
	 	 	63	 






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TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	4.4 Financial Statements and Business Plan
	 	 	63	 
	4.5 Material Adverse Effect
	 	 	65	 
	4.6 Ownership of Property; Liens
	 	 	65	 
	4.7 Labor Matters
	 	 	66	 
	4.8 Subsidiaries and Joint Ventures
	 	 	66	 
	4.9 Government Regulation
	 	 	66	 
	4.10 Margin Regulations
	 	 	66	 
	4.11 Taxes
	 	 	67	 
	4.12 ERISA
	 	 	67	 
	4.13 No Litigation
	 	 	68	 
	4.14 Brokers
	 	 	68	 
	4.15 Intellectual Property
	 	 	69	 
	4.16 Full Disclosure
	 	 	69	 
	4.17 Environmental Matters
	 	 	69	 
	4.18 Insurance
	 	 	70	 
	4.19 Deposit Accounts
	 	 	71	 
	4.20 Government Contracts
	 	 	71	 
	4.21 Customer and Trade Relations
	 	 	71	 
	4.22 Bonding
	 	 	71	 
	4.23 Intentionally Omitted
	 	 	71	 
	4.24 No Default
	 	 	71	 
	4.25 Creation and Perfection of Security Interests
	 	 	71	 
	4.26 Intentionally Omitted
	 	 	72	 
	4.27 Solvency
	 	 	72	 
	4.28 Material Contracts
	 	 	72	 
	4.29 Foreign Assets Control Regulations and Anti-Money Laundering
	 	 	72	 
	4.30 Patriot Act
	 	 	72	 
	4.31 Regulation H
	 	 	73	 
	4.32 Holding Company
	 	 	73	 
	4.33 Plan of Reorganization
	 	 	73	 






-ii-









 





TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	5. FINANCIAL STATEMENTS AND INFORMATION
	 	 	73	 
	 
	5.1 Financial Reports and Notices
	 	 	73	 
	5.2 Collateral Reporting
	 	 	77	 
	5.3 Fresh Start Accounting Financial Statements
	 	 	77	 
	 
	6. AFFIRMATIVE COVENANTS
	 	 	78	 
	 
	6.1 Maintenance of Existence and Conduct of Business
	 	 	78	 
	6.2 Payment of Charges and Taxes
	 	 	78	 
	6.3 Books and Records
	 	 	78	 
	6.4 Insurance; Damage to or Destruction of Collateral
	 	 	79	 
	6.5 Compliance with Laws and Contractual Obligations
	 	 	79	 
	6.6 Intentionally Omitted
	 	 	80	 
	6.7 Intellectual Property
	 	 	80	 
	6.8 Environmental Matters
	 	 	80	 
	6.9 Real Estate Purchases
	 	 	80	 
	6.10 Further Assurances
	 	 	80	 
	6.11 Credit Ratings
	 	 	81	 
	6.12 Interest Rate Protection
	 	 	81	 
	6.13 ERISA Matters
	 	 	81	 
	6.14 Stock of First-Tier Foreign Subsidiaries
	 	 	81	 
	6.15 New Subsidiaries
	 	 	81	 
	6.16 Designation of Subsidiaries
	 	 	83	 
	6.17 Post-Closing Matters
	 	 	83	 
	 
	7. NEGATIVE COVENANTS
	 	 	83	 
	 
	7.1 Mergers,
Fundamental Changes, Etc.
	 	 	83	 
	7.2 Investments; Loans and Advances
	 	 	84	 
	7.3 Indebtedness
	 	 	87	 
	7.4 Affiliate Transactions
	 	 	90	 
	7.5 Amendment of Certain Documents; Line of Business
	 	 	91	 
	7.6 Guarantied Obligations
	 	 	91	 
	7.7 Liens
	 	 	91	 






-iii-









 





TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	7.8 Sale of Stock and Assets
	 	 	94	 
	7.9 ERISA
	 	 	96	 
	7.10 Financial Covenants
	 	 	97	 
	7.11 Hazardous Materials
	 	 	98	 
	7.12 Sale-Leaseback Transactions
	 	 	99	 
	7.13 Cancellation of Indebtedness
	 	 	99	 
	7.14 Restricted Payments
	 	 	99	 
	7.15 Change of Corporate Name, State of Incorporation or Location; Change of Fiscal Year
	 	 	100	 
	7.16 Intentionally Omitted
	 	 	100	 
	7.17 No Speculative Transactions
	 	 	100	 
	7.18 Changes Relating to Material Contracts
	 	 	100	 
	7.19 OFAC; Patriot Act.
	 	 	101	 
	7.20 Limitation of Restrictions Affecting Subsidiaries
	 	 	101	 
	7.21 Business of Foreign Stock Holding Companies
	 	 	101	 
	7.22 Equity Interests of Credit Parties
	 	 	102	 
	 
	8. TERM
	 	 	102	 
	 
	8.1 Termination
	 	 	102	 
	8.2 Survival of Obligations Upon Termination of Financing Arrangements
	 	 	102	 
	 
	9. EVENTS OF DEFAULT; RIGHTS AND REMEDIES
	 	 	102	 
	 
	9.1 Events of Default
	 	 	102	 
	9.2 Remedies
	 	 	105	 
	9.3 Waivers by Credit Parties
	 	 	105	 
	 
	10. APPOINTMENT OF AGENT
	 	 	106	 
	 
	10.1 Appointment of Agent
	 	 	106	 
	10.2
Agent’s Reliance, Etc.
	 	 	106	 
	10.3 MSSF and Affiliates
	 	 	107	 
	10.4 Lender Credit Decision
	 	 	108	 
	10.5 Indemnification
	 	 	108	 
	10.6 Successor Agent
	 	 	108	 






-iv-









 





TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	10.7 Setoff and Sharing of Payments
	 	 	109	 
	10.8 Return of Payments; Information
	 	 	109	 
	10.9 Actions in Concert
	 	 	110	 
	10.10 Procedures
	 	 	110	 
	10.11 Collateral Matters
	 	 	110	 
	10.12 Additional Agents
	 	 	111	 
	10.13 Distribution of Materials to Lenders
	 	 	111	 
	 
	11. ASSIGNMENT AND PARTICIPATIONS; SUCCESSORS AND ASSIGNS
	 	 	112	 
	 
	11.1 Assignment and Participations
	 	 	112	 
	11.2 Successors and Assigns
	 	 	116	 
	 
	12. MISCELLANEOUS
	 	 	116	 
	 
	12.1 Complete Agreement; Modification of Agreement
	 	 	116	 
	12.2 Amendments and Waivers
	 	 	116	 
	12.3 Fees and Expenses
	 	 	119	 
	12.4 No Waiver
	 	 	120	 
	12.5 Remedies
	 	 	121	 
	12.6 Severability
	 	 	121	 
	12.7 Conflict of Terms
	 	 	121	 
	12.8 Confidentiality
	 	 	121	 
	12.9 GOVERNING LAW
	 	 	122	 
	12.10 Notices
	 	 	123	 
	12.11 Section Titles
	 	 	125	 
	12.12 Counterparts
	 	 	125	 
	12.13 WAIVER OF JURY TRIAL
	 	 	125	 
	12.14 Press Releases and Related Matters
	 	 	125	 
	12.15 Reinstatement
	 	 	126	 
	12.16 Advice of Counsel
	 	 	126	 
	12.17 No Strict Construction
	 	 	126	 
	12.18 Patriot Act Notice
	 	 	126	 
	12.19 Currency Equivalency Generally
	 	 	126	 






-v-









 





TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	12.20 Judgment Currency
	 	 	126	 
	12.21 Electronic Transmissions
	 	 	127	 
	12.22 Independence of Provisions
	 	 	128	 
	12.23 No Third Parties Benefited
	 	 	128	 
	12.24 Relation to Intercreditor Agreement
	 	 	128	 






-vi-









 






INDEX OF APPENDICES




	 	 	 	 	 

	Annex
A

	 	—
	 	Lenders’ Wire Transfer Information
	Annex
B

	 	—
	 	Commitments as of Closing Date
	 
	Exhibit 2.1 (a)(i)

	 	—
	 	Form of Term Note
	Exhibit 2.3(b)

	 	—
	 	Form of Prepayment Option Notice
	Exhibit 2.5(e)

	 	—
	 	Form of Notice of Conversion/Continuation
	Exhibit 7.3(c)

	 	—
	 	Form of Intercompany Note
	Exhibit 11.1(a)

	 	—
	 	Form of Assignment Agreement
	Schedule (A-1)

	 	—
	 	Subsidiary Guarantors
	Schedule (A-2)

	 	—
	 	Immaterial Subsidiaries
	Schedule (E-1)

	 	—
	 	EBITDA Adjustments
	Schedule (H-1)

	 	—
	 	Halla Transactions
	Schedule (P-1)

	 	—
	 	Permitted Holders
	Schedule (P-2)

	 	—
	 	Permitted Restructuring Transactions
	Schedule (2.1)

	 	—
	 	Agent’s Representatives
	Schedule (2.4)

	 	—
	 	Sources and Uses; Funds Flow Memorandum
	Schedule (4.1)

	 	—
	 	Type of Entity; State of Organization
	Schedule (4.2)

	 	—
	 	Chief Executive Office, State of Organization; Principal Place of Business; Collateral Locations; FEIN
	Schedule (4.6)

	 	—
	 	Real Estate and Leases
	Schedule (4.7)

	 	—
	 	Labor Matters
	Schedule (4.8)

	 	—
	 	Subsidiaries and Joint Ventures
	Schedule (4.11)

	 	—
	 	Tax Matters
	Schedule (4.12)

	 	—
	 	ERISA Plans; Material Contributions
	Schedule (4.13)

	 	—
	 	Litigation
	Schedule (4.14)

	 	—
	 	Brokers
	Schedule (4.15)

	 	—
	 	Intellectual Property
	Schedule (4.17)

	 	—
	 	Hazardous Materials
	Schedule (4.19)

	 	—
	 	Deposit Accounts
	Schedule (4.20)

	 	—
	 	Government Contracts
	Schedule (4.22)

	 	—
	 	Bonding
	Schedule (4.25(a))

	 	—
	 	Pledged Collateral Filing Offices
	Schedule (4.25(b))

	 	—
	 	Mortgaged Property; Mortgaged Property Filing Offices
	Schedule (4.28)

	 	—
	 	Material Contracts
	Schedule (4.31)

	 	—
	 	Flood Hazards
	Schedule (6.16)

	 	—
	 	Unrestricted Subsidiaries; Subsidiaries Not Permitted to be Unrestricted Subsidiaries
	Schedule (6.17)

	 	—
	 	Post-Closing Matters
	Schedule (7.2)

	 	—
	 	Investments, Loans and Advances
	Schedule (7.3(e))

	 	—
	 	Existing Indebtedness
	Schedule (7.4)

	 	—
	 	Affiliate Transactions
	Schedule (7.7)

	 	—
	 	Liens in Existence on Closing Date
	Schedule (7.8(p))

	 	—
	 	Designated Asset Programs
	Schedule (7.12)

	 	—
	 	Sale-Leaseback Transactions
	Schedule (7.14)

	 	 	 	Employee Compensation Programs
	Schedule (7.20)

	 	—
	 	Permitted Restrictive Agreements







-i-