exv10w1






Exhibit 10.1




EXECUTION COPY





     REVOLVING CREDIT AMENDMENT AND RESTATEMENT AGREEMENT dated as of
June 30, 2011, among AMERICAN AXLE & MANUFACTURING, INC. (the
“Borrower”), AMERICAN AXLE & MANUFACTURING HOLDINGS, INC. (the
“Parent”), the LENDERS party hereto and JPMORGAN CHASE BANK, N.A.,
as Administrative Agent (the “Agent”), under the Credit Agreement
dated as of January 9, 2004, as amended and restated as of December 18,
2009 (as in effect on the date hereof, the “Existing Credit
Agreement”), among the Borrower, the Parent, the lenders party thereto
and the Agent.



          WHEREAS the Borrower has requested, and the undersigned Lenders and the Agent have agreed,
upon the terms and subject to the conditions set forth herein, that the Existing Credit Agreement
be amended and restated as provided herein.




          NOW, THEREFORE, the Borrower, the Parent, the undersigned Lenders and the Agent hereby agree
as follows:




          SECTION 1. Defined Terms. (a) Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Amended Credit Agreement (as defined in Section 3
below); provided that, unless otherwise specified herein, the defined term “Lender” as used
herein shall have the meaning specified in the Existing Credit Agreement.




          (b) As used in this Agreement, the term “New Class D Lender” shall mean (a) any
financial institution that is not a Lender under the Existing Credit Agreement but that is to
become a Class D Lender on the Restatement Effective Date with the consent of each of the Borrower
and the Agent or (b) any Lender that is to become a Class D Lender on the Restatement Effective
Date and whose Class D Commitment is to exceed its Commitment (as defined in the Existing Credit
Agreement) with the consent of such Lender, the Borrower and the Agent.




          SECTION 2. Restatement Effective Date. (a) The amendment and restatement of the
Existing Credit Agreement provided for in Section 3 hereof shall be consummated on the Restatement
Effective Date.




          (b) The “Restatement Effective Date” shall be a date, not later than July 1, 2011, as
of which all the conditions set forth or referred to in Section 6 hereof shall have been satisfied.
This Agreement shall terminate at 5:00 p.m., New York City time, on July 15, 2011, if the
Restatement Effective Date shall not have occurred at or prior to such time.












 



2




          SECTION 3. Amendment and Restatement of the Existing Credit Agreement. (a) Effective
on the Restatement Effective Date, the Existing Credit Agreement is hereby amended and restated to
read in its entirety as set forth in Exhibit A hereto (the “Amended Credit Agreement”).
From and after the effectiveness of such amendment and restatement, the terms “Agreement”, “this
Agreement”, “herein”, “hereinafter”, “hereto”, “hereof” and words of similar import, as used in the
Amended Credit Agreement, shall, unless the context otherwise requires, refer to the Amended Credit
Agreement, and the term “Credit Agreement”, as used in the other Loan Documents, shall mean the
Amended Credit Agreement.




          (b) Subject to Section 4 below, all “Commitments” as defined in, and in effect under, the
Existing Credit Agreement on the Restatement Effective Date shall continue in effect under the
Amended Credit Agreement, and all “Loans” and “Letters of Credit” as defined in, and outstanding
under, the Existing Credit Agreement on the Restatement Effective Date shall continue to be
outstanding under the Amended Credit Agreement, and on and after the Restatement Effective Date the
terms of the Amended Credit Agreement will govern the rights and obligations of the Borrower, the
Parent, the Lenders and the Agent with respect thereto.




          (c) The amendment and restatement of the Existing Credit Agreement as contemplated hereby
shall not be construed to discharge or otherwise affect any obligations of the Borrower or Parent
accrued or otherwise owing under the Existing Credit Agreement that have not been paid, it being
understood that such obligations will constitute obligations under the Amended Credit Agreement.




          SECTION 4. Classification of Commitments and Revolving Credit Exposure; Certain Commitment
Reductions, Increases or Additions; Etc. (a) Effective upon the Restatement Effective Date,
subject to paragraph (b) below, (i) each Lender that, on or prior to 12:00 noon, New York City
time, on June 30, 2011, or such later time or date as the Borrower and the Agent may agree (the
“Signing Date”), has executed and delivered to the Agent (or its counsel) a counterpart of
this Agreement (or evidence thereof as contemplated by Section 6(a) below) shall be a Class D
Lender under the Amended Credit Agreement, and its Commitment and Revolving Loans shall be a Class
D Commitment and Class D Revolving Loans thereunder, respectively, (ii) each other Lender shall
continue to be a Lender of the same Class under the Amended Credit Agreement as such Lender was
under the Existing Credit Agreement, and its Commitment shall remain a Class A Commitment or Class
C Commitment, as applicable, and its Revolving Loans shall remain Class A Revolving Loans or Class
C Revolving Loans, as applicable, under the Amended Credit Agreement, (iii) each Class C Lender
shall be released from its participations or obligations to acquire participations in all Letters
of Credit and Swingline Loans and (iv) each Class D Lender shall have a participation or
obligations to acquire a participation in each Letter of Credit or Swingline Loan equal to its
Applicable Class D Percentage thereof, in accordance with the Amended Credit Agreement.




          (b) Effective upon the Restatement Effective Date, each New Class D Lender that, on or prior
to 12:00 noon, New York City time, on the Signing Date, has











 



3



executed and delivered to the Agent (or its counsel) a counterpart of this Agreement (or
evidence thereof as contemplated by Section 6(a) below) shall be a Class D Lender under the Amended
Credit Agreement with a Class D Commitment in an amount (determined by the Borrower and the Agent)
not exceeding the amount specified in its commitment advice to the Agent; provided that,
after giving effect to paragraph (a) above and this paragraph (b), the aggregate amount of the
Class D Commitments as of the Restatement Effective Date shall not exceed $325,000,000. On the
Restatement Effective Date, the Borrower may, by notice to the Agent, reduce the Class A
Commitments or Class C Commitments (or both) remaining after giving effect to paragraph (a) above,
and such reduction shall be effective on the Restatement Effective Date notwithstanding any
requirements under the Existing Credit Agreement or the Amended Credit Agreement for prior notice.
Any such reduction shall be pro rata among the Commitments of the applicable Class. If any such
reduction is made and, after giving effect thereto, the outstanding Class A Revolving Loans or
Class C Revolving Loans exceed the Class A Commitments or Class C Commitments, as applicable, the
Borrower shall prepay Class A Revolving Loans or Class C Revolving Loans, as applicable, on the
Restatement Effective Date as necessary in order to eliminate any such excess. Any such prepayment
shall not require prior notice notwithstanding the requirements of the Existing Credit Agreement or
Amended Credit Agreement.




          (c) Upon and after the Restatement Effective Date and after giving effect to paragraphs (a)
and (b) above (i) the Class A Euro Limit shall be an amount equal to (A) $100,000,000, multiplied
by (B) a percentage (such percentage, the “Class A Percentage”) determined by dividing (1)
the total Class A Commitments by (2) the total Commitments, (ii) the Class A Sterling Limit shall
be an amount equal to (A) $50,000,000, multiplied by (B) the Class A Percentage thereof, (iii) the
Class C Euro Limit shall be an amount equal to (A) $100,000,000, multiplied by (B) a percentage
(such percentage, the “Class C Percentage”) determined by dividing (1) the total Class C
Commitments by (2) the total Commitments, (iv) the Class C Sterling Limit shall be an amount equal
to (A) $50,000,000, multiplied by (B) the Class C Percentage thereof, (v) the Class D Euro Limit
shall be an amount equal to (A) $100,000,000, multiplied by (B) a percentage (such percentage, the
“Class D Percentage”) determined by dividing (1) the total Class D Commitments by (2) the
total Commitments, (vi) the Class D Sterling Limit shall be an amount equal to (A) $50,000,000,
multiplied by (B) the Class D Percentage thereof, (vii) the Class D Krona Limit shall be an amount
equal to $50,000,000 and (viii) the Class D Peso Limit shall be an amount equal to $50,000,000.




          (d) The Agent is hereby authorized to (i) prepare Schedule 2.01 to the Amended Credit
Agreement, reflecting the Class A Commitments, Class C Commitments and Class D Commitments as of
the Restatement Effective Date after giving effect to paragraphs (a) and (b) above, and (ii)
calculate the Class A Euro Limit, Class A Sterling Limit, Class C Euro Limit, Class C Sterling
Limit, Class D Euro Limit and Class D Sterling Limit and prepare a version of the Amended Credit
Agreement that includes the amounts so calculated. Promptly after the Restatement Effective Date,
the Agent shall make available to the Borrower and the Lenders (as defined in the Amended Credit
Agreement) copies of the version of the Amended Credit Agreement and Schedule 2.01











 



4



thereto so prepared by it, and the amounts reflected therein shall be conclusive absent
demonstrable error.




          SECTION 5. Amendment Fee. The Borrower agrees to pay to the Agent, for the account of
the Class D Lenders as of the Restatement Effective Date, a fee equal to $2,825,000.00 in the
aggregate. Such fee shall be due and payable on the Restatement Effective Date.




          SECTION 6. Conditions. The effectiveness of the amendment and restatement of the
Existing Credit Agreement pursuant to Section 3 of this Agreement shall be subject to the
satisfaction (or waiver) of the following conditions precedent:




          (a) The Agent (or its counsel) shall have received from each of the Borrower, the Parent, the
Required Lenders under (and as defined in) the Existing Credit Agreement and any new Class D
Lenders either a counterpart of this Agreement signed on behalf of such party or written evidence
satisfactory to the Agent (which may include facsimile or other electronic transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of this Agreement.




          (b) The GM Second Lien Credit Agreement (as defined in the Existing Credit Agreement) shall
have been terminated, any amounts owing thereunder shall have been paid and all Liens securing
obligations thereunder shall have been released (or arrangements reasonably satisfactory to the
Agent shall have been made for such release), and the Agent shall have received evidence reasonably
satisfactory to it regarding satisfaction of the foregoing conditions.




          (c) The Borrower shall have notified GM in writing of its election to terminate the expedited
payment terms pursuant to Section 1.5(g) of the GM Settlement Agreement, and the Agent shall have
received evidence reasonably satisfactory to it regarding satisfaction of the foregoing condition.




          (d) The Agent (or its counsel) shall have received from each Subsidiary, if any, that is a
Subsidiary Loan Party as of the Restatement Effective Date, and is not already a Guarantor, a
supplement to the Guarantee Agreement, in the form specified therein, duly executed and delivered
on behalf of such Person.




          (e) The Agent shall have received a favorable written opinion (addressed to the Agent and the
Lenders (as defined in the Amended Credit Agreement) and dated the Restatement Effective Date) of
each of (i) Richard G. Raymond, General Counsel of the Borrower, (ii) Shearman & Sterling LLP,
counsel to the Loan Parties, and (iii) local counsel in Luxembourg, Brazil and Scotland, in each
case, in form and substance reasonably satisfactory to the Agent, and in each case covering such
other matters relating to the Loan Parties, the Loan Documents or the Restatement Transactions as
the Agent or the Required Lenders shall reasonably request. The Parent and the Borrower hereby
request such counsel to deliver such opinions.




          (f) The Agent shall have received such documents and certificates as the Agent or its counsel
may reasonably request relating to the organization, existence and











 



5



good standing of the Loan Parties and the authorization of the Restatement Transactions and
any other legal matters relating to the Loan Parties, the Loan Documents or the Restatement
Transactions, all in form and substance satisfactory to the Agent and its counsel.




          (g) The representations and warranties of the Loan Parties set forth in the Loan Documents
shall be true and correct in all material respects as of the Restatement Effective Date, no Default
shall have occurred and be continuing as of the Restatement Effective Date and the Agent shall have
received a certificate, dated the Restatement Effective Date and signed by the President, the Chief
Executive Officer, a Vice President or a Financial Officer of each of the Parent and the Borrower,
confirming the foregoing.




          (h) The Agent shall have received (i) all fees and other amounts due and payable on or prior
to the Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Loan
Documents, (ii) all accrued and unpaid interest under the Existing Credit Agreement and all accrued
and unpaid fees under paragraphs (a) and (b) of Section 2.11 of the Existing Credit Agreement and
(iii) any prepayments of principal required pursuant to Section 4(b) or Section 7(c). If any LC
Disbursements are outstanding as of the Restatement Effective Date, such LC Disbursements shall be
repaid, together with any interest accrued thereon.




          (i) The Collateral Requirement shall have been satisfied. The Perfection Schedule attached
to the Collateral Agreement, as amended on the Restatement Effective Date, shall have been
completed and shall include all attachments contemplated thereby, including the results of a search
of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the
jurisdictions contemplated by the Perfection Schedule and copies of the financing statements (or
similar documents) disclosed by such search and evidence reasonably satisfactory to the Agent that
the Liens indicated by such financing statements (or similar documents) are permitted by Section
6.02 of the Amended Credit Agreement or have been released.




          (j) The Lenders (as defined in the Amended Credit Agreement) shall have received all
documentation and other information required by bank regulatory authorities under applicable “know
your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.




          The Agent shall notify the Borrower and the Lenders (as defined in the Amended Credit
Agreement) of the Restatement Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the amendment and restatement of the Existing Credit Agreement as
contemplated hereby shall not become effective unless each of the foregoing conditions is satisfied
(or waived) at or prior to 5:00 p.m., New York City time, on July 15, 2011 (and, in the event such
conditions are not so satisfied or waived, the Existing Credit Agreement shall remain in effect
without giving effect to any provisions of this Agreement).












 



6




          SECTION 7. Borrowing Requests. (a) Promptly upon the effectiveness of the amendment
and restatement of the Existing Credit Agreement as provided herein but subject to paragraphs (b)
and (c) below, the Borrower shall deliver Borrowing Requests with respect to the outstanding
Borrowings under the Amended Credit Agreement, identifying each such Borrowing as a Class A
Borrowing, Class C Borrowing or Class D Borrowing, as the case may be, and the amount thereof and,
in the case of Eurodollar Borrowings, the remaining Interest Periods. Such Borrowing Requests
shall not affect the interest rate or remaining Interest Period of any Borrowing or change the
Adjusted EURIBO Rate or Adjusted LIBO Rate of any Borrowing or require any payment under Section
2.15 of the Amended Credit Agreement, but shall be solely for the purpose of establishing the
segregation of outstanding Class A Borrowings, Class C Borrowings and Class D Borrowings.




          (b) If, after giving effect to the transactions contemplated hereby on the Restatement
Effective Date, the Class D Revolving Credit Exposure exceeds the Class D Commitments, then the
Borrower shall prepay Loans, on the Restatement Effective Date, in such amount as shall be
necessary to eliminate such excess and such other Loans as the Borrower shall specify to the Agent.
The undersigned Required Lenders hereby waive any requirement of prior notice of any such
prepayment.




          (c) If, after giving effect to the transactions contemplated hereby on the Restatement
Effective Date, there are Class D Revolving Loans outstanding but such Loans are not held by the
Class D Lenders ratably in accordance with their Class D Commitments, then the Borrower shall, on
the Restatement Effective Date, prepay all such Class D Revolving Loans (it being understood that
such prepayment may be financed by a simultaneous borrowing of Class D Revolving Loans in
accordance with the Amended Credit Agreement). The undersigned Lenders hereby waive any
requirement of prior notice of any such prepayment.




          SECTION 8. Consent to Amendment of Security Documents. The Required Lenders hereby
consent to such amendments to the Security Documents as the Agent shall approve to (i) secure
obligations (not exceeding $20,000,000 in the aggregate) in respect of certain cash management
arrangements on a pari passu basis with the Secured Obligations, (ii) release the lien on the
securities account that Borrower maintains with Reserve Short-Term Investment Trust and (iii)
effect the transactions contemplated by this Agreement. The Borrower agrees to enter into (and, as
necessary, to cause the other Loan Parties to enter into) such amendments.




          SECTION 9. Ability to Cure. After the Restatement Effective Date, (i) if the Agent
and the Borrower jointly identify any defect or ambiguity in any provision of the Loan Documents,
then the Required Lenders hereby agree that the Agent and the Borrower shall be permitted to amend
such provision to cure such defect or ambiguity and such amendment shall become effective without
any further action or consent of any other party to any Loan Document if the same is not objected
to in writing by the Required Lenders within five (5) Business Days following receipt of notice
thereof and (ii) if the Agent and the Borrower jointly determine that it is desirable that a
provision of any Loan Document be amended or waived solely for the purpose of complying with











 



7



local law, then the Required Lenders hereby agree that the Agent and the Borrower shall be
permitted to amend or waive such provision to the extent necessary to so comply and such amendment
or waiver shall become effective without any further action or consent of any party to any Loan
Document if the same is not objected to in writing by the Required Lenders within five (5) Business
Days following receipt of notice thereof; provided, however, that this Section shall not be
construed to permit any amendment or waiver that, pursuant to the terms of Section 9.02 of the
Amended Credit Agreement, would require the consent of any party other than the Loan Parties, the
Agent and the Required Lenders, unless such consent is obtained.




          SECTION 10. Effectiveness; Counterparts; Amendments. This Agreement shall become
effective when copies hereof which, when taken together, bear the signatures of the Borrower, the
Parent, the Agent, the Required Lenders and any New Class D Lenders shall have been received by the
Agent. This Agreement may not be amended nor may any provision hereof be waived except pursuant to
a writing signed by the Borrower, the Parent, the Agent and the Required Lenders. This Agreement
may be executed in two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute a single contract. Delivery of an executed counterpart
of a signature page of this Agreement by facsimile or other electronic transmission shall be
effective as delivery of a manually executed counterpart of this Agreement.




          SECTION 11. No Novation. This Agreement shall not extinguish the Loans or other
obligations outstanding under the Existing Credit Agreement. This Agreement shall be a Loan
Document for all purposes.




          SECTION 12. Notices. All notices hereunder shall be given in accordance with the
provisions of Section 9.01 of the Amended Credit Agreement.




          SECTION 13. Applicable Law; Waiver of Jury Trial. (A) THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.




          (B) EACH PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTION 9.10 OF THE AMENDED CREDIT
AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL HEREIN.




          SECTION 14. Headings. The Section headings used herein are for convenience of
reference only, are not part of this Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.










 



 


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




	 	 	 	 	 

	AMERICAN AXLE & MANUFACTURING, INC.,	 	 
	 
	 	 	 	 
	By:

	 	/s/ SHANNON J. CURRY
 

Name: Shannon J. Curry
	 	 
	 

	 	Title: Treasurer	 	 






	 	 	 	 	 

	AMERICAN AXLE &
MANUFACTURING HOLDINGS, INC.,	 	 
	 
	 	 	 	 
	By:

	 	/s/ SHANNON J. CURRY
 

Name: Shannon J. Curry
	 	 
	 

	 	Title: Treasurer	 	 












 



9


	 	 	 	 	 

	JPMORGAN CHASE BANK, N.A., as Agent,	 	 
	 
	 	 	 	 
	By:

	 	/s/ RICHARD W. DUKER
 

Name: Richard W. Duker
	 	 
	 

	 	Title: Managing Director	 	 












 



10

	 	 	 	 	 
	 	LENDERS UNDER THE CREDIT AGREEMENT



SIGNATURE PAGE TO THE 

REVOLVING CREDIT AMENDMENT

AND RESTATEMENT AGREEMENT

DATED AS OF JUNE [30], 2011 AMONG 

AMERICAN AXLE & 

MANUFACTURING, INC., AMERICAN 

AXLE & MANUFACTURING 

HOLDINGS, INC., THE LENDERS 

PARTY THERETO AND JPMORGAN 

CHASE BANK, N.A., AS

ADMINISTRATIVE AGENT.

Name of Institution:



JPMORGAN CHASE BANK, N.A.

 	 
	 	 	 
	 	 	 
	 	 	 
	 




	 	 	 	 	 

	By:

	 	/s/ RICHARD W. DUKER
 

Name: Richard W. Duker
	 	 
	 

	 	Title: Managing Director	 	 

















 



 







	 	 	 	 	 
	 	LENDERS UNDER THE CREDIT AGREEMENT



SIGNATURE PAGE TO THE 

REVOLVING CREDIT AMENDMENT

AND RESTATEMENT AGREEMENT

DATED AS OF JUNE [30], 2011 AMONG 

AMERICAN AXLE & 

MANUFACTURING, INC., AMERICAN 

AXLE & MANUFACTURING 

HOLDINGS, INC., THE LENDERS 

PARTY THERETO AND JPMORGAN 

CHASE BANK, N.A., AS

ADMINISTRATIVE AGENT.

Name of Institution:



BANK OF AMERICA, N.A., AS LENDER

 	 
	 	 	 
	 	 	 
	 	 	 
	 



	 	 	 	 	 

	By:

	 	/s/ DUSTIN VINCENT
 

Name: Dustin Vincent
	 	 
	 

	 	Title: Managing Director	 	 


















 



 



	 	 	 	 	 
	 	LENDERS UNDER THE CREDIT AGREEMENT



SIGNATURE PAGE TO THE 

REVOLVING CREDIT AMENDMENT

AND RESTATEMENT AGREEMENT

DATED AS OF JUNE [30], 2011 AMONG 

AMERICAN AXLE &

MANUFACTURING, INC., AMERICAN 

AXLE & MANUFACTURING 

HOLDINGS, INC., THE LENDERS 

PARTY THERETO AND JPMORGAN 

CHASE BANK, N.A., AS

ADMINISTRATIVE AGENT.

Name of Institution:



ROYAL BANK OF CANADA

 	 
	 	 	 
	 	 	 
	 	 	 
	 




	 	 	 	 	 

	By:

	 	/s/ MEREDITH MAJESTY
 

Name: Meredith Majesty
	 	 
	 

	 	Title: Vice President	 	 

















 



 







	 	 	 	 	 
	 	LENDERS UNDER THE CREDIT AGREEMENT



SIGNATURE PAGE TO THE 

REVOLVING CREDIT AMENDMENT

AND RESTATEMENT AGREEMENT

DATED AS OF JUNE [30], 2011 AMONG

AMERICAN AXLE &

MANUFACTURING, INC., AMERICAN 

AXLE & MANUFACTURING 

HOLDINGS, INC., THE LENDERS 

PARTY THERETO AND JPMORGAN 

CHASE BANK, N.A., AS

ADMINISTRATIVE AGENT.

Name of Institution:



U.S. BANK NATIONAL ASSOCIATION

 	 
	 	 	 
	 	 	 
	 	 	 
	 



	 	 	 	 	 

	By:

	 	/s/ MATTHEW J. SCHULZ
 

Name: Matthew J. Schulz
	 	 
	 

	 	Title: Vice President	 	 












 



14

	 	 	 	 	 
	 	LENDERS UNDER THE CREDIT AGREEMENT



SIGNATURE PAGE TO THE 

REVOLVING CREDIT AMENDMENT

AND RESTATEMENT AGREEMENT

DATED AS OF JUNE [30], 2011 AMONG 

AMERICAN AXLE & 

MANUFACTURING, INC., AMERICAN 

AXLE & MANUFACTURING 

HOLDINGS, INC., THE LENDERS 

PARTY THERETO AND JPMORGAN 

CHASE BANK, N.A., AS

ADMINISTRATIVE AGENT.

Name of Institution:



KEYBANK NATIONAL ASSOCIATION

 	 
	 	 	 
	 	 	 
	 	 	 
	 




	 	 	 	 	 

	By:

	 	/s/ MARCEL FOURNIER
 

Name: Marcel Fournier
	 	 
	 

	 	Title: Vice President	 	 












 



15

	 	 	 	 	 
	 	LENDERS UNDER THE CREDIT AGREEMENT



SIGNATURE PAGE TO THE 

REVOLVING CREDIT AMENDMENT

AND RESTATEMENT AGREEMENT

DATED AS OF JUNE [30], 2011 AMONG 

AMERICAN AXLE &

MANUFACTURING, INC., AMERICAN 

AXLE & MANUFACTURING 

HOLDINGS, INC., THE LENDERS 

PARTY THERETO AND JPMORGAN 

CHASE BANK, N.A., AS

ADMINISTRATIVE AGENT.

Name of Institution:



THE HUNTINGTON NATIONAL BANK

 	 
	 	 	 
	 	 	 
	 	 	 
	 




	 	 	 	 	 

	By:

	 	/s/ STEVEN J. McCORMACK
 

Name: Steven J. McCormack
	 	 
	 

	 	Title: Vice President	 	 







 












 





EXHIBIT A




 





AMENDED AND RESTATED CREDIT AGREEMENT




dated as of



January 9, 2004,



As Amended and Restated as of June 30, 2011



among



AMERICAN AXLE & MANUFACTURING, INC.,



AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.,



The Lenders Party Hereto



and



JPMORGAN CHASE BANK, N.A.,



as Administrative Agent



 





J.P. MORGAN SECURITIES LLC



and



MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Joint Lead Arrangers and Joint Bookrunners




 














 



 




TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I

	 
	 	 	 	 
	Definitions

	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Types of Loans and Borrowings
	 	 	41	 
	SECTION 1.03. Terms Generally
	 	 	42	 
	SECTION 1.04. Accounting Terms; GAAP
	 	 	42	 
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	The Credits

	 
	 	 	 	 
	SECTION 2.01. Commitments
	 	 	43	 
	SECTION 2.02. Loans and Borrowings
	 	 	44	 
	SECTION 2.03. Requests for Revolving Borrowings
	 	 	45	 
	SECTION 2.04. Swingline Loans
	 	 	46	 
	SECTION 2.05. Letters of Credit
	 	 	48	 
	SECTION 2.06. Funding of Borrowings
	 	 	53	 
	SECTION 2.07. Interest Elections
	 	 	53	 
	SECTION 2.08. Termination and Reduction of Commitments
	 	 	55	 
	SECTION 2.09. Repayment of Loans; Evidence of Debt
	 	 	56	 
	SECTION 2.10. Prepayment of Loans
	 	 	57	 
	SECTION 2.11. Fees
	 	 	57	 
	SECTION 2.12. Interest
	 	 	59	 
	SECTION 2.13. Alternate Rate of Interest
	 	 	60	 
	SECTION 2.14. Increased Costs
	 	 	61	 
	SECTION 2.15. Break Funding Payments
	 	 	63	 
	SECTION 2.16. Taxes
	 	 	63	 
	SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	66	 
	SECTION 2.18. Additional Reserve Costs
	 	 	68	 
	SECTION 2.19. Mitigation Obligations; Replacement of Lenders
	 	 	69	 
	SECTION 2.20. Redenomination of Sterling
	 	 	70	 
	SECTION 2.21. Assigned Dollar Value
	 	 	70	 
	SECTION 2.22. Increase in Commitments
	 	 	71	 
	SECTION 2.23. Defaulting Lenders
	 	 	73	 
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	Representations and Warranties

	 
	 	 	 	 
	SECTION 3.01. Organization; Powers
	 	 	73	 







i







 




	 	 	 	 	 
	 	 	Page	 
	SECTION 3.02. Authorization; Enforceability
	 	 	73	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	74	 
	SECTION 3.04. Financial Condition; No Material Adverse Change
	 	 	74	 
	SECTION 3.05. Litigation and Environmental Matters
	 	 	74	 
	SECTION 3.06. Compliance with Laws and Agreements
	 	 	75	 
	SECTION 3.07. Investment Company Status
	 	 	75	 
	SECTION 3.08. Taxes
	 	 	75	 
	SECTION 3.09. ERISA
	 	 	75	 
	SECTION 3.10. Disclosure
	 	 	76	 
	SECTION 3.11. Subsidiaries
	 	 	76	 
	SECTION 3.12. Properties
	 	 	76	 
	SECTION 3.13. Collateral Matters
	 	 	77	 
	 
	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 
	Conditions

	 
	 	 	 	 
	SECTION 4.01. [Intentionally Omitted.]
	 	 	78	 
	SECTION 4.02. Each Credit Event
	 	 	78	 
	 
	 	 	 	 
	ARTICLE V

	 
	 	 	 	 
	Affirmative Covenants

	 
	 	 	 	 
	SECTION 5.01. Financial Statements and Other Information
	 	 	79	 
	SECTION 5.02. Notices of Material Events
	 	 	80	 
	SECTION 5.03. Existence; Conduct of Business
	 	 	81	 
	SECTION 5.04. Payment of Obligations
	 	 	81	 
	SECTION 5.05. Maintenance of Properties; Insurance
	 	 	81	 
	SECTION 5.06. Books and Records; Inspection Rights
	 	 	82	 
	SECTION 5.07. Compliance with Laws
	 	 	82	 
	SECTION 5.08. Use of Proceeds and Letters of Credit
	 	 	82	 
	SECTION 5.09. Additional Subsidiary Loan Parties
	 	 	82	 
	SECTION 5.10. Information Regarding Collateral
	 	 	82	 
	SECTION 5.11. Further Assurances
	 	 	83	 
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	Negative Covenants

	 
	 	 	 	 
	SECTION 6.01. Indebtedness; Disqualified Equity Interests
	 	 	84	 
	SECTION 6.02. Liens
	 	 	86	 
	SECTION 6.03. Fundamental Changes
	 	 	87	 
	SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions
	 	 	88	 
	SECTION 6.05. Transactions with Affiliates
	 	 	90	 
	SECTION 6.06. Restrictive Agreements
	 	 	91	 








ii







 



 


	 	 	 	 	 
	 	 	Page	 
	SECTION 6.07. Restricted Payments; Certain Payments of Indebtedness
	 	 	91	 
	SECTION 6.08. Amendment of Material Documents
	 	 	92	 
	SECTION 6.09. Net Priority Leverage Ratio
	 	 	92	 
	SECTION 6.10. Total Net Leverage Ratio
	 	 	93	 
	SECTION 6.11. Cash Interest Expense Coverage Ratio
	 	 	93	 
	SECTION 6.12. Lien Basket Amount
	 	 	93	 
	SECTION 6.13. Certain Asset Sales
	 	 	93	 
	 
	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 
	Events of Default

	 
	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 
	The Administrative Agent

	 
	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 
	Miscellaneous

	 
	 	 	 	 
	SECTION 9.01. Notices
	 	 	100	 
	SECTION 9.02. Waivers; Amendments
	 	 	101	 
	SECTION 9.03. Expenses; Indemnity; Damage Waiver
	 	 	102	 
	SECTION 9.04. Successors and Assigns
	 	 	103	 
	SECTION 9.05. Survival
	 	 	107	 
	SECTION 9.06. Counterparts; Integration; Effectiveness
	 	 	107	 
	SECTION 9.07. Severability
	 	 	108	 
	SECTION 9.08. Right of Setoff
	 	 	108	 
	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	108	 
	SECTION 9.10. WAIVER OF JURY TRIAL
	 	 	109	 
	SECTION 9.11. Judgment Currency
	 	 	109	 
	SECTION 9.12. Headings
	 	 	110	 
	SECTION 9.13. Confidentiality
	 	 	110	 
	SECTION 9.14. Interest Rate Limitation
	 	 	111	 
	SECTION 9.15. USA PATRIOT Act Notice
	 	 	111	 
	SECTION 9.16. Non-Public Information
	 	 	111	 
	SECTION 9.17. Optional Release of Collateral
	 	 	111	 














iii







 



 




SCHEDULES:




	 	 	 

	Schedule 2.01

	 	Commitments
	 
	 	 
	Schedule 3.05

	 	Disclosed Matters
	 
	 	 
	Schedule 3.11

	 	Subsidiaries
	 
	 	 
	Schedule 3.12

	 	Material Properties
	 
	 	 
	Schedule 6.01

	 	Existing Indebtedness
	 
	 	 
	Schedule 6.02

	 	Existing Liens
	 
	 	 
	Schedule 6.04A

	 	Existing Investments
	 
	 	 
	Schedule 6.04B

	 	Certain Permitted Investments
	 
	 	 
	Schedule 6.05

	 	Existing Transactions with Affiliates
	 
	 	 
	Schedule 6.06

	 	Existing Restrictions






EXHIBITS:




	 	 	 

	Exhibit A

	 	Form of Guarantee Agreement
	 
	 	 
	Exhibit B

	 	Form of Assignment and Assumption
	 
	 	 
	Exhibit C

	 	[Intentionally Omitted]
	 
	 	 
	Exhibit D

	 	Mandatory Costs Rate
	 
	 	 
	Exhibit E

	 	[Intentionally Omitted]
	 
	 	 
	Exhibit F

	 	[Intentionally Omitted]
	 
	 	 
	Exhibit G

	 	[Intentionally Omitted]
	 
	 	 
	Exhibit H

	 	Form of Second Lien Intercreditor Agreement













iv







 



 








     AMENDED AND RESTATED CREDIT AGREEMENT dated as of January 9, 2004, as
amended and restated as of June 30, 2011, among AMERICAN AXLE &
MANUFACTURING, INC., AMERICAN AXLE & MANUFACTURING HOLDINGS, INC., the
LENDERS party hereto and JPMORGAN CHASE BANK, N.A., as Administrative
Agent.



          WHEREAS, pursuant to the Amendment and Restatement Agreement (such term, and other capitalized
terms used herein, having the meanings set forth in Section 1.01 below) the Borrower has requested,
and the Lenders party thereto and the Administrative Agent have agreed, upon the terms and subject
to the conditions set forth therein, that the Existing Credit Agreement be amended and restated in
its entirety as provided herein effective upon satisfaction of the conditions set forth in the
Amendment and Restatement Agreement:




          NOW, THEREFORE, the parties hereto agree as follows:




SECTION 15.




Definitions



          (a) Defined Terms. As used in this Agreement, the following terms have the meanings
specified below:




          “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.




          “Account” means, collectively, (a) an “account” as such term is defined in the Uniform
Commercial Code as in effect from time to time in the State of New York or under other relevant
law, (b) a “payment intangible” as such term is defined in the Uniform Commercial Code as in effect
from time to time in the State of New York or under other relevant law, and (c) the Parent’s or any
Subsidiary’s rights to payment for goods sold or leased or services performed or rights to payment
in respect of any monetary obligation owed to the Parent or any Subsidiary, including all such
rights evidenced by an account, note, contract, security agreement, chattel paper, or other
evidence of indebtedness or security.




          “Acquired/Disposed EBITDA” means, with respect to any Acquired Entity or Business or
any Sold Entity or Business (any of the foregoing, a “Pro Forma Entity”) for any period,
the Consolidated Net Income of such Pro Forma Entity for such period plus (a) without duplication
and to the extent deducted in determining such Consolidated Net Income for such Pro Forma Entity,
the sum of (i) income tax expense for such period, (ii) gross interest expense for such period
(including interest-equivalent costs associated with any Permitted Receivables Financing, whether
accounted for as interest expense or loss on the sale of Receivables), (iii) depreciation and
amortization












 



2



expense for such period, (iv) any special charges and any extraordinary or nonrecurring losses
for such period (subject to the limitation in clause (a)(iv) of the definition of “Consolidated
EBITDA”) and (v) other non-cash items reducing Consolidated Net Income for such period, and minus
(b) without duplication and to the extent included in determining Consolidated Net Income, (i)
interest income for such period, (ii) extraordinary or nonrecurring gains for such period and (iii)
other non-cash items increasing Consolidated Net Income for such period, all determined on a
consolidated basis for such Pro Forma Entity in accordance with GAAP.




          “Acquired Entity or Business” has the meaning assigned to such term in the definition
of “Consolidated EBITDA”.




          “Adjusted EURIBO Rate” means, with respect to any Eurodollar Borrowing denominated in
Euro for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the
next 1/16 of 1%) equal to (a) the EURIBO Rate for such Interest Period multiplied by (b) the
Statutory Reserve Rate.




          “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing (other than a
Eurodollar Borrowing denominated in Euro) for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.




          “Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder.




          “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.




          “Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.




          “Aggregate Revolving Credit Exposure” means, at any time, the sum of the total Class A
Revolving Credit Exposure, total Class C Revolving Credit Exposure and total Class D Revolving
Credit Exposure at such time.




          “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if
such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that, for
the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the rate appearing on
the Reuters BBA Libor Rates Page 3750 (or on any successor or substitute page of such page) at
approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be
effective from and including the effective date of such change in the Prime Rate, the Federal Funds
Effective Rate or the Adjusted LIBO Rate, respectively. If for any












 



3



reason the Administrative Agent shall have determined that it is unable after due inquiry to
ascertain the Federal Funds Effective Rate for any reason, including the inability or failure of
the Administrative Agent to obtain sufficient quotations in accordance with the terms hereof, the
Alternate Base Rate shall be determined without regard to clause (b) of the first sentence of this
definition until the circumstances giving rise to such inability no longer exist.




          “Alternative Currency” means Sterling, Euro, Krona or Peso.




          “Alternative Currency Borrowing” means a Borrowing comprised of Alternative Currency
Loans.




          “Alternative Currency Equivalent” means, with respect to an amount in Dollars on any
date in relation to a specified Alternative Currency, the amount of such specified Alternative
Currency that may be purchased with such amount of Dollars at the Spot Exchange Rate with respect
to such Alternative Currency on such date.




          “Alternative Currency Letter of Credit” means a Letter of Credit denominated in an
Alternative Currency.




          “Alternative Currency Loan” means any Revolving Loan denominated in an Alternative
Currency.




          “Amendment and Restatement Agreement” means the Revolving Credit Amendment and
Restatement Agreement dated as of June 30, 2011, among the Borrower, the Parent, the Lenders party
thereto and the Administrative Agent.




          “Applicable Class A Percentage” means, at any time, with respect to any Class A
Lender, the percentage of the total Class A Commitments represented by such Lender’s Class A
Commitment at such time. If the Class A Commitments have terminated or expired, the Applicable
Class A Percentages shall be determined based upon the Class A Commitments most recently in effect,
giving effect to any assignments.




          “Applicable Class C Percentage” means, at any time, with respect to any Class C
Lender, the percentage of the total Class C Commitments represented by such Lender’s Class C
Commitment at such time. If the Class C Commitments have terminated or expired, the Applicable
Class C Percentages shall be determined based upon the Class C Commitments most recently in effect,
giving effect to any assignments.




          “Applicable Class D Percentage” means, at any time, with respect to any Class D
Lender, the percentage of the total Class D Commitments represented by such Lender’s Class D
Commitment at such time. If the Class D Commitments have terminated or expired, the Applicable
Class D Percentages shall be determined based upon the Class D Commitments most recently in effect,
giving effect to any assignments.




          “Applicable Rate” means, for any day (a) with respect to any ABR Loan or Eurodollar
Revolving Loan that is a Class A Revolving Loan, or with respect to the












 



4



commitment fees payable hereunder in respect of the Class A Commitments, as the case may be,
the applicable rate per annum set forth below under the caption “ABR Spread”, “Eurodollar Spread”
or “Commitment Fee Rate”, as the case may be:




	 	 	 	 	 	 	 	 	 
	 	 	Eurodollar	 	Commitment
	ABR Spread	 	Spread	 	Fee Rate
	   5.00%
	 	 	6.00	%	 	 	0.75	%





(b) with respect to any ABR Loan or Eurodollar Revolving Loan that is a Class C Revolving Loan, or
with respect to the commitment fees payable hereunder in respect of the Class C Commitments, as the
case may be, the applicable rate per annum set forth below under the caption “ABR Spread”,
“Eurodollar Spread” or “Commitment Fee Rate”, as the case may be, based upon the Corporate Ratings
by Moody’s and S&P, respectively, applicable on such date:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Corporate	 	 	 	 	 	Eurodollar	 	Commitment
	 	 	Ratings	 	ABR Spread	 	Spread	 	Fee Rate
	Category 1
	 	> B1/B+	 	 	3.75	%	 	 	4.75	%	 	 	0.50	%
	Category 2
	 	> B2/B	 	 	4.25	%	 	 	5.25	%	 	 	0.75	%
	Category 3
	 	> B3/B-	 	 	4.50	%	 	 	5.50	%	 	 	0.75	%
	Category 4
	 	> Caa1/CCC+	 	 	4.75	%	 	 	5.75	%	 	 	0.75	%
	Category 5
	 	> Caa2/CCC	 	 	5.00	%	 	 	6.00	%	 	 	0.75	%
	Category 6
	 	≤ Caa3/CCC-	 	 	5.75	%	 	 	6.75	%	 	 	1.00	%





and (c) with respect to any ABR Loan or Eurodollar Revolving Loan that is a Class D Revolving Loan
or a Swingline Loan, or with respect to the commitment fees payable hereunder in respect of the
Class D Commitments, as the case may be, the applicable rate per annum set forth below under the
caption “ABR Spread”, “Eurodollar Spread” or “Commitment Fee Rate”, as the case may be, based upon
the Corporate Ratings by Moody’s and S&P, respectively, applicable on such date:












 



5




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Corporate	 	 	 	 	 	Eurodollar	 	Commitment
	 	 	Ratings	 	ABR Spread	 	Spread	 	Fee Rate
	Category 1
	 	> Ba2/BB	 	 	2.00	%	 	 	3.00	%	 	 	0.375	%
	Category 2
	 	> Ba3/BB-	 	 	2.25	%	 	 	3.25	%	 	 	0.375	%
	Category 3
	 	> B1/B+	 	 	2.75	%	 	 	3.75	%	 	 	0.500	%
	Category 4
	 	> B2/B	 	 	3.00	%	 	 	4.00	%	 	 	0.500	%
	Category 5
	 	< B2/B	 	 	3.50	%	 	 	4.50	%	 	 	0.625	%






     For purposes of the foregoing clause (b) and clause (c), (i) if Moody’s shall not have in
effect a Corporate Rating (other than by reason of the circumstances referred to in the last
sentence of this definition), then the Applicable Rate shall be based on Moody’s senior implied
rating in respect of the Borrower (or if Moody’s has not established such senior implied rating,
Moody’s shall be deemed to have established a rating in Category 6 in the case of Class C Revolving
Loans and Class C Commitments and Category 5 in the case of Class D Revolving Loans, Swingline
Loans and Class D Commitments); (ii) if S&P shall not have in effect a Corporate Rating (other than
by reason of the circumstances referred to in the last sentence of this definition), then the
Applicable Rate shall be based on S&P’s corporate credit rating in respect of the Borrower (or if
S&P has not established such rating, S&P shall be deemed to have established a rating in Category 6
in the case of Class C Revolving Loans and Class C Commitments and Category 5 in the case of Class
D Revolving Loans, Swingline Loans and Class D Commitments); (iii) if the ratings established or
deemed to have been established by Moody’s for the Corporate Rating (or Moody’s senior implied
rating in respect of the Borrower, if applicable), and S&P for the Corporate Rating (or S&P’s
corporate credit rating in respect of the Borrower, if applicable), shall fall within different
Categories, the Applicable Rate shall be based on the higher of the two ratings unless one of the
two ratings is two or more Categories lower than the other, in which case the Applicable Rate shall
be determined by reference to the Category next below that of the higher of the two ratings; and
(iv) if the ratings established or deemed to have been established by Moody’s for the Corporate
Rating (or Moody’s senior implied rating in respect of the Borrower, if applicable), and S&P for
the Corporate Rating (or S&P’s corporate credit rating in respect of the Borrower, if applicable),
shall be changed (other than as a result of a change in the rating system of Moody’s or S&P), such
change shall be effective as of the date on which it is first announced by the applicable rating
agency. Each change in the Applicable Rate shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the effective date of
the next such change. If the rating system of Moody’s or S&P shall change, or if either such
rating agency shall cease to be in the business of rating corporate debt obligations, the Borrower
and the Lenders shall negotiate in good faith to amend this definition to reflect such changed
rating system or the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be









 



6

determined by reference to the rating most recently in effect prior to such change or
cessation.




          “Approved Fund” has the meaning assigned to such term in Section 9.04.




          “A/R and Inventory Amount” means, as of any date, the aggregate net book value as of
such date of all Eligible Collateral consisting of accounts receivable (excluding accounts
receivable owed by a Loan Party to a Loan Party, but including accounts receivable owed by a
Subsidiary that is not a Loan Party to a Loan Party) and inventory, determined in accordance with
GAAP.




          “Arrangers” means J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, each in its capacity as a joint lead arranger in respect of the credit facility
established hereunder.




          “Asset Disposition” means any sale, lease, transfer or other disposition (or series of
related sales, leases, transfers or dispositions) by the Parent or any Subsidiary, including any
disposition by means of a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a “disposition”), of:





     (a) any Equity Interests of a Subsidiary (other than directors’ qualifying shares or
shares required by applicable law to be held by a Person other than the Parent or a
Subsidiary);




     (b) all or substantially all the assets of any division or line of business of the
Parent or any Subsidiary; or




     (c) any other assets of the Parent or any Subsidiary outside of the ordinary course of
business of the Parent or such Subsidiary


other than, in the case of clauses (a), (b) and (c) above,





     (i) a disposition by a Subsidiary to the Parent or by the Parent or a Subsidiary to a
Subsidiary;




     (ii) a disposition of assets with a fair market value of less than $50,000,000;




     (iii) the lease, assignment, sublease, license or sublicense of any real or personal
property in the ordinary course of business and consistent with past practice;




     (iv) foreclosure on assets or transfers by reason of eminent domain;




     (v) disposition of accounts receivable in connection with the collection or compromise
thereof;









 



7



     (vi) a disposition of surplus, obsolete or worn out equipment or other property in the
ordinary course of business;




     (vii) assignments and sales of Receivables and Related Security pursuant to a
Permitted Receivables Financing;




     (viii) any substantially concurrent exchange of assets of comparable value to be used
in a Related Business;




     (ix) a disposition of cash or Permitted Investments; and




     (x) the creation of a Lien (but not the sale or other disposition of the property
subject to such Lien).



          “Assigned Dollar Value” shall have the meaning set forth in Section 2.21.




          “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit B or any other form approved by
the Administrative Agent.




          “Board” means the Board of Governors of the Federal Reserve System of the United
States of America.




          “Borrower” means American Axle & Manufacturing, Inc., a Delaware corporation.




          “Borrowing” means (a) Revolving Loans of the same Class, currency and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single
Interest Period is in effect, or (b) a Swingline Loan.




          “Borrowing Request” means a request by the Borrower for a Revolving Borrowing in
accordance with Section 2.03.




          “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan or an Alternative Currency
Loan the term “Business Day” shall also exclude any day on which dealings in foreign
currencies and exchange between banks may not be carried on in London, England or New York, New
York or, in the case of an Alternative Currency Loan denominated in Euro, any day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is not open.




          “Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such












 



8



Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.




          “Cash Interest Expense Coverage Ratio” means, for any period of four consecutive
fiscal quarters, the ratio of Consolidated EBITDA of the Parent for such period to Consolidated
Cash Interest Expense of the Parent for such period.




          “Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
Restatement Effective Date), of Equity Interests representing more than 35% of the aggregate
ordinary voting power represented by the issued and outstanding Equity Interests of the Parent; (b)
occupation of a majority of the seats (other than vacant seats) on the board of directors of the
Parent by Persons who were neither (i) nominated by the board of directors of the Borrower or the
Parent nor (ii) appointed by directors so nominated; (c) the acquisition of direct or indirect
Control of the Parent by any Person or group; (d) the failure of the Parent to own, directly or
indirectly, all of the outstanding Equity Interests of the Borrower; (e) at any time that any
Existing Senior Notes, Senior Secured Notes or Existing Convertible Notes are outstanding, the
occurrence of a Change of Control, as defined in either the Existing Senior Notes Indenture, Senior
Secured Notes Indenture or the Existing Convertible Notes Indenture, as applicable; or (f) at any
time that any Disqualified Equity Interest or any Permitted Second Lien Indebtedness of the Parent
or any Subsidiary is outstanding, the occurrence of any “change of control” (or similar event)
shall occur that would require (or entitle any holder or holders thereof to require) the Parent or
any Subsidiary to redeem or purchase any such Disqualified Equity Interest or prepay any such
Permitted Second Lien Indebtedness.




          “Change in Law” means the occurrence, after the Restatement Effective Date (or with
respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the
following: (a) the adoption of any law, rule, regulation or treaty, (b) any change in any law,
rule, regulation or treaty or in the administration, interpretation or application thereof by any
Governmental Authority, or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority; provided
however, that notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street
Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or
issued in connection therewith shall be deemed to be a “Change in Law”, regardless of the date
enacted, adopted or issued.




          “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Class A Revolving Loans, Class C Revolving Loans or
Class D Revolving Loans and, when used in reference to any Commitment, refers to whether such
Commitment is a Class A Commitment, Class C Commitment or Class D Commitment, and, when used in
reference to any Lender, refers to whether such Lender is a Class A Lender, Class C Lender or a
Class D Lender.













 



9




          “Class A Availability Period” means the period from and including the Effective Date
to but excluding the earlier of the Class A Maturity Date and the date of termination of the Class
A Commitments.




          “Class A Commitment” means, with respect to each Lender, the commitment, if any, of
such Lender to make Class A Revolving Loans expressed as an amount representing the maximum
aggregate amount of such Lender’s Class A Revolving Credit Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The amount of
each Lender’s Class A Commitment as of the Restatement Effective Date is set forth on Schedule 2.01
(determined as provided in the Amendment and Restatement Agreement), or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Class A Commitment, as applicable.




          “Class A Euro Limit” means an amount equal to $14,167,847.32.




          “Class A Lender” means a Lender with a Class A Commitment or Class A Revolving Credit
Exposure.




          “Class A Maturity Date” means December 31, 2011.




          “Class A Revolving Credit Exposure” means, with respect to any Class A Lender at any
time, the sum of (a) the outstanding principal amount of such Class A Lender’s Class A Revolving
Loans denominated in Dollars at such time and (b) the Assigned Dollar Value of the outstanding
principal amount of such Class A Lender’s Class A Revolving Loans denominated in an Alternative
Currency at such time.




          “Class A Revolving Loan” means (a) each Revolving Loan outstanding under (and as
defined in) the Existing Credit Agreement as of the Restatement Effective Date as to which the
Lender is a Class A Lender and (b) a Loan made on or after the Restatement Effective Date pursuant
to Section 2.01(a).




          “Class A Sterling Limit” means an amount equal to $7,083,923.66.




          “Class C Availability Period” means the period from and including the Effective Date
to but excluding the earlier of the Class C Maturity Date and the date of termination of the Class
C Commitments.




          “Class C Commitment” means, with respect to each Lender, the commitment, if any, of
such Lender to make Class C Revolving Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender’s Class C Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.
The amount of each Lender’s Class C Commitment as of the Restatement Effective Date is set forth on
Schedule 2.01 (determined as provided in the Amendment and Restatement Agreement),












 



10



or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Class
C Commitment, as applicable.




          “Class C Euro Limit” means an amount equal to $23,160,263.36.




          “Class C Lender” means a Lender with a Class C Commitment or Class C Revolving Credit
Exposure.




          “Class C Maturity Date” means June 30, 2013.




          “Class C Revolving Credit Exposure” means, with respect to any Class C Lender at any
time, the sum of (a) the outstanding principal amount of such Class C Lender’s Class C Revolving
Loans denominated in Dollars at such time and (b) the Assigned Dollar Value of the outstanding
principal amount of such Class C Lender’s Class C Revolving Loans denominated in an Alternative
Currency at such time.




          “Class C Revolving Loan” means (a) each Revolving Loan outstanding under (and as
defined in) the Existing Credit Agreement as of the Restatement Effective Date as to which the
Lender is a Class C Lender and (b) a Loan made on or after the Restatement Effective Date pursuant
to Section 2.01(b).




          “Class C Sterling Limit” means an amount equal to $11,580,131.68.




          “Class D Availability Period” means the period from and including the Restatement
Effective Date to but excluding the earlier of the Class D Maturity Date and the date of
termination of the Class D Commitments.




          “Class D Commitment” means, with respect to each Lender, the commitment, if any, of
such Lender to make Class D Revolving Loans and to acquire participations in Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such
Lender’s Class D Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.08, (b) increased from time to time pursuant to Section 2.22 and
(c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender’s Class D Commitment as of the Restatement
Effective Date is set forth on Schedule 2.01 (determined as provided in the Amendment and
Restatement Agreement), or in the Assignment and Assumption pursuant to which such Lender shall
have assumed its Class D Commitment, as applicable.




          “Class D Euro Limit” means an amount equal to $62,671,889.32.




          “Class D Krona Limit” means an amount equal to $50,000,000.




          “Class D Lender” means a Lender with a Class D Commitment or Class D Revolving Credit
Exposure.




          “Class D Maturity Date” means June 30, 2016.













 



11




          “Class D Peso Limit” means an amount equal to $50,000,000.




          “Class D Revolving Credit Exposure” means, with respect to any Class D Lender at any
time, the sum of (a) the outstanding principal amount of such Class D Lender’s Class D Revolving
Loans denominated in Dollars at such time, (b) the Assigned Dollar Value of the outstanding
principal amount of such Class D Lender’s Class D Revolving Loans denominated in an Alternative
Currency at such time and (c) such Class D Lender’s LC Exposure and Swingline Exposure at such
time.




          “Class D Revolving Loan” means (a) each Revolving Loan outstanding under (and as
defined in) the Existing Credit Agreement as of the Restatement Effective Date as to which the
Lender is a Class D Lender and (b) a Loan made on or after the Restatement Effective Date pursuant
to Section 2.01(c).




          “Class D Sterling Limit” means an amount equal to $31,335,944.66.




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




          “Collateral” means any and all assets, whether real or personal, tangible or
intangible, on which Liens are purported to be granted pursuant to the Security Documents as
security for any of the Secured Obligations.




          “Collateral Agent” means JPMorgan Chase Bank, N.A., in its capacity as collateral
agent under the Security Documents.




          “Collateral Agreement” means the Amended and Restated Collateral Agreement among the
Borrower, the Parent, the Subsidiary Loan Parties and the Collateral Agent.




          “Collateral Release Period” means any period during which the Liens on the Collateral
granted pursuant to the Security Documents have been released (or are required to have been
released) pursuant to Section 9.17 and are not required to be reinstated pursuant to such Section,
determined as provided in such Section.




          “Collateral Release Ratings Requirement” means the requirement that the Borrower has a
Corporate Rating of at least BBB- (with a stable outlook) or better from S&P and Baa3 (with a
stable outlook) or better from Moody’s.




          “Collateral Requirement” means, at any time other than during a Collateral Release
Period, the requirement that:





     (a) the Collateral Agent shall have received from each Loan Party either (i) a
counterpart of the Collateral Agreement duly executed and delivered on behalf of such Loan
Party or (ii) in the case of any Person that becomes a Loan Party after the Restatement
Effective Date, a supplement to the Collateral Agreement, in the form specified therein,
duly executed and delivered on behalf of such Loan Party;









 



12



     (b) all Equity Interests of each Subsidiary owned by or on behalf of any Loan Party
shall have been pledged pursuant to the Collateral Agreement (except that the Loan Parties
shall not be required to pledge (i) more than 66% of the outstanding voting Equity
Interests of any Foreign Subsidiary or (ii) Equity Interests of any NWO Subsidiary to the
extent that such pledge requires the consent of any other holder of Equity Interests in
such NWO Subsidiary and such consent has not been obtained (it being understood that
commercially reasonable efforts will be made by the Parent and the Subsidiaries to obtain
such consent)) and, to the extent required by the Collateral Agreement, the Collateral
Agent shall have received certificates or other instruments representing all such Equity
Interests, together with undated stock powers or other instruments of transfer with respect
thereto endorsed in blank; provided that, if any outstanding non-voting Equity
Interests of a Foreign Subsidiary are, by their terms, able to be assigned or transferred
(or required to be owned) only together with outstanding voting Equity Interests of such
Foreign Subsidiary, then such non-voting Equity Interests shall be required to be pledged
but only to the extent such voting Equity Interests are required to be pledged after taking
into account clause (i) of this paragraph (b); provided further that upon
execution and delivery of any separate security agreement necessary under the laws of
Brazil in order to obtain a valid perfected security interest in the Equity Interests of
any Direct Foreign Subsidiary organized in Brazil, the Collateral Agent shall receive an
opinion of local counsel in Brazil regarding such security agreement, reasonably
satisfactory in form and substance to the Collateral Agent;




     (c) all Indebtedness of the Parent and each Subsidiary that is owing to any Loan Party
shall be evidenced by a promissory note and shall have been pledged pursuant to the
Collateral Agreement and the Collateral Agent shall have received all such promissory notes
(together with any promissory note evidencing Indebtedness of any other Person owing to a
Loan Party in a principal amount exceeding $10,000,000), together with undated instruments
of transfer with respect thereto endorsed in blank; provided that any such
Indebtedness of a Foreign Subsidiary owing to a Loan Party shall not be required to be
evidenced by a promissory note if, and for so long as, under the laws of the jurisdiction
where such Foreign Subsidiary is organized, promissory notes are not recognized as an
instrument for evidencing Indebtedness (it being understood that (i) any such Indebtedness
shall, in any event, constitute Collateral and (ii) if any promissory note or other
instrument is created to evidence such Indebtedness, it shall be delivered to the
Collateral Agent);




     (d) all documents and instruments, including Uniform Commercial Code financing
statements, required by law or reasonably requested by the Collateral Agent to be filed,
registered or recorded to create the Liens intended to be created by the Security Documents
and perfect such Liens to the extent required by, and with the priority required by, the
Loan Documents, shall have been filed, registered or recorded or delivered to the
Collateral Agent for filing, registration or recording;









 



13



     (e) the Collateral Agent shall have received, or shall have confirmation that the
title company recording the mortgages has received, (i) counterparts of a Mortgage with
respect to each Mortgaged Property duly executed and delivered by the record owner of such
Mortgaged Property, (ii) with respect to each Material Property, a policy or policies of
title insurance issued by a nationally recognized title insurance company (or in the case
of any such title insurance policies provided prior to the Restatement Effective Date, a
date down endorsement shall be delivered to the Collateral Agent), in an amount reasonably
acceptable to the Collateral Agent, insuring the Lien of the Mortgage with respect to such
Material Property as a valid and enforceable first Lien on such Mortgaged Property
described therein, free of any other Liens except as expressly permitted by Section 6.02,
together with such endorsements, coinsurance and reinsurance as the Collateral Agent or the
Required Lenders may reasonably request, (iii) if any Mortgaged Property is located in an
area determined by the Federal Emergency Management Agency to have special flood hazards,
evidence of such flood insurance as may be required under applicable law, including
Regulation H of the Board of Governors, and (iv) with respect to each Material Property,
such land surveys, legal opinions of local counsel in the jurisdiction where such Material
Property is located and other documents as the Collateral Agent may reasonably request with
respect to any such Mortgage or Material Property; and




     (f) each Loan Party shall have obtained all consents and approvals required to be
obtained by it in connection with the execution and delivery of all Security Documents to
which it is a party, the performance of its obligations thereunder and the granting by it
of the Liens thereunder, including those required by the Collateral Agreement. 



          The foregoing definition shall not require the creation or perfection of pledges of or
security interests in, or the obtaining of title insurance, legal opinions or other deliverables
with respect to, particular assets of the Loan Parties, if, and for so long as the Administrative
Agent, in consultation with the Parent and the Borrower, determines that the cost of creating or
perfecting such pledges or security interests in such assets, or obtaining such title insurance,
legal opinions or other deliverables in respect of such assets, shall be excessive in view of the
benefits to be obtained by the Secured Parties therefrom. The Administrative Agent may grant
extensions of time for the creation and perfection of security interests in or the obtaining of
title insurance, legal opinions or other deliverables with respect to particular assets (including
extensions beyond the Restatement Effective Date or in connection with assets acquired, or
Subsidiaries formed or acquired, after the Restatement Effective Date) where it determines that
such action cannot be accomplished without undue effort or expense by the time or times at which it
would otherwise be required to be accomplished by this Agreement or the Security Documents.




          It is understood that the requirements of this definition shall not be construed to require
any Subsidiary that is not a Loan Party (including any Foreign












 



14



Subsidiary) to grant any Lien on or otherwise pledge its assets to secure any of the Secured
Obligations.




          “Commitment” means a Class A Commitment, a Class C Commitment or a Class D Commitment.




          “Consolidated Cash Interest Expense” means, for any period, the excess of (a) the sum,
without duplication, of (i) the interest expense of the Parent and its consolidated Subsidiaries
for such period, determined on a consolidated basis in accordance with GAAP, (ii) any interest or
other financing costs becoming payable during such period in respect of Indebtedness of the Parent
or its consolidated Subsidiaries to the extent such interest or other financing costs shall have
been capitalized (excluding fees paid in connection with the Restatement Transactions) rather than
included in consolidated interest expense for such period in accordance with GAAP and (iii) any
cash payments made during such period in respect of obligations referred to in clause (b)(ii) below
that were amortized or accrued in a previous period, minus (b) the sum of (i) to the extent
included in such consolidated interest expense for such period, non-cash amounts attributable to
amortization or write-off of capitalized interest or other financing costs paid in a previous
period, (ii) to the extent included in such consolidated interest expense for such period, non-cash
amounts attributable to amortization of debt discounts or accrued interest payable in kind for such
period and (iii) to the extent included in such consolidated interest expense for such period,
non-cash interest relating to the issuance of warrants or other equity-like instruments for such
period.




          “Consolidated EBITDA” means, of any Person for any period, Consolidated Net Income of
such Person for such period plus (a) without duplication and to the extent deducted in determining
such Consolidated Net Income, the sum of (i) income tax expense for such period, (ii) gross
interest expense for such period (including interest-equivalent costs associated with any Permitted
Receivables Financing, whether accounted for as interest expense or loss on the sale of
Receivables), (iii) depreciation and amortization expense for such period, (iv) any special charges
and any extraordinary or nonrecurring losses for such period (provided that to the extent
that such charges or losses involve payments of cash in such period or any future period, the
amount thereof shall be limited to $75,000,000 in the aggregate for any fiscal quarter or quarters
ending after the Restatement Effective Date that are included in any period for which Consolidated
EBITDA is being calculated, provided further that any such charges or losses
referred to in the definition of “Acquired/Disposed EBITDA” shall be included in such limit) and
(v) other non-cash items reducing such Consolidated Net Income for such period, and (vi) the
aggregate of any costs and expenses (including, without limitation, fees) paid in connection with
the Restatement Transactions and minus (b) without duplication and to the extent included in
determining such Consolidated Net Income, (i) interest income for such period, (ii) extraordinary
or nonrecurring gains for such period and (iii) other non-cash items increasing such Consolidated
Net Income for such period, all determined on a consolidated basis in accordance with GAAP;
provided that for purposes of determining the Net Priority Leverage Ratio and Total Net
Leverage Ratio only, (A) there shall be included in determining the Consolidated EBITDA of the
Parent












 



15



for any period the Acquired/Disposed EBITDA of any Person, property, business or asset
acquired outside the ordinary course of business during or after the end of such period by the
Parent or a Subsidiary, to the extent not subsequently sold, transferred or otherwise disposed of
by the Parent or a Subsidiary (each such Person, property, business or asset acquired and not
subsequently so disposed of, an “Acquired Entity or Business”), based on the actual
Acquired/Disposed EBITDA of such Acquired Entity or Business for such period (including the portion
thereof occurring prior to such acquisition) and (B) there shall be excluded in determining
Consolidated EBITDA of the Parent for any period the Acquired/Disposed EBITDA of any Person,
property, business or asset sold, transferred or otherwise disposed of outside the ordinary course
of business by the Parent or any Subsidiary during or after the end of such period (each such
Person, property, business or asset so sold or disposed of, a “Sold Entity or Business”)
based on the actual Acquired/Disposed EBITDA of such Sold Entity or Business for such period
(including the portion thereof occurring prior to such sale, transfer or disposition). Unless the
context otherwise requires, references to Consolidated EBITDA shall be construed to mean
Consolidated EBITDA of the Parent.




          “Consolidated Net Income” means, of any Person for any period, the net income or loss
of such Person for such period determined on a consolidated basis in accordance with GAAP. Unless
the context otherwise requires, references to Consolidated Net Income shall be construed to mean
Consolidated Net Income of the Parent.




          “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.




          “Copyright” has the meaning specified in the Collateral Agreement.




          “Copyright Security Agreement” has the meaning specified in the Collateral Agreement.




          “Corporate Rating” means (a) in the case of Moody’s, the “Corporate Family Rating” for
the Parent or (b) in the case of S&P, a “Long-term Issuer” rating assigned under the “Corporate
Credit Rating Service” for the Parent.




          “Credit Event” means the borrowing of any Loan or the issuance of any Letter of Credit
or any amendment to a Letter of Credit increasing the amount available thereunder.




          “Cumulative Income Amount” means, as of any date of determination, (a) an amount equal
to 50% of the Consolidated Net Income of the Parent for each fiscal year (if any) ended on or after
December 31, 2011 (pro rated from the Restatement Effective Date for purposes of calculating such
amount for the fiscal year ended on December 31, 2011), and prior to such date of determination for
which financial statements have been delivered pursuant to Section 5.01 and for which Consolidated
Net Income is a positive












 



16



amount, reduced by (b) 100% of Consolidated Net Income of the Parent for each such fiscal year
ended during such period for which Consolidated Net Income is a loss (pro rated from the
Restatement Effective Date for purposes of calculating such amount for the fiscal year ended on
December 31, 2011).




          “Currency Equivalent” means the Dollar Equivalent or the Alternative Currency
Equivalent, as the case may be.




          “Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.




          “Defaulting Lender” means any Lender, as determined by the Administrative Agent, that
has (a) failed to fund any portion of its Loans or participations in Letters of Credit or Swingline
Loans within three Business Days of the date required to be funded by it hereunder, (b) notified
the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any Lender in
writing that it does not intend to comply with any of its funding obligations under this Agreement
or has made a public statement to the effect that it does not intend to comply with its funding
obligations under this Agreement or under other agreements in which it commits to extend credit,
(c) failed, within three Business Days after request by the Administrative Agent, to confirm that
it will comply with the terms of this Agreement relating to its obligations to fund prospective
Loans and participations in then outstanding Letters of Credit and Swingline Loans;
provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c)
upon receipt of such written confirmation by the Administrative Agent, (d) otherwise failed to pay
over to the Administrative Agent or any other Lender any other amount required to be paid by it
hereunder within three Business Days of the date when due, unless the subject of a good faith
dispute, or (e) (i) become or is insolvent or has a parent company that has become or is insolvent
or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or
indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has
a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a
receiver, conservator, trustee or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or
appointment.




          “Denomination Date” means, in relation to any Alternative Currency Borrowing, the date
that is three Business Days before the date such Borrowing is made.




          “Direct Foreign Subsidiary” means any Foreign Subsidiary the Equity Interests in which
are owned directly by a Loan Party.




          “Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.05.













 



17




          “Disqualified Equity Interest” means, with respect to any Person, any Equity Interest
in such Person that by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon
the happening of any event or condition:





     (a) matures or is mandatorily redeemable (other than solely for Equity Interests in
such Person that do not constitute Disqualified Equity Interests and cash in lieu of
fractional shares of such Equity Interests), whether pursuant to a sinking fund obligation
or otherwise;




     (b) is convertible or exchangeable at the option of the holder thereof for
Indebtedness or Equity Interests (other than solely for Equity Interests in such Person
that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares
of such Equity Interests); or




     (c) is redeemable (other than solely for Equity Interests in such Person that do not
constitute Disqualified Equity Interests and cash in lieu of fractional shares of such
Equity Interests) or is required to be repurchased by such Person or any of its Affiliates,
in whole or in part, at the option of the holder thereof;




in each case, on or prior to the Class D Maturity Date;
provided, however, that an Equity Interest in any
Person that would not constitute a Disqualified Equity Interest
but for terms thereof giving holders thereof the right to require
such Person to redeem or purchase or otherwise retire such Equity
Interest upon the occurrence of an “asset sale” or a “change of
control” shall not constitute a Disqualified Equity Interest.



          “Dollar Letter of Credit” means a Letter of Credit denominated in Dollars.




          “Dollars” or “$” refers to lawful money of the United States of America.




          “Dollar Equivalent” means, with respect to any amount of an Alternative Currency on
any date, the amount of Dollars that may be purchased with such amount of the Alternative Currency
at the Spot Exchange Rate with respect to the Alternative Currency on such date.




          “Effective Date” means the “Effective Date” as defined in the Existing Credit
Agreement.




          “Eligible Collateral” means Collateral with respect to which the Collateral
Requirement has been satisfied; provided that, solely for purposes of determining “Eligible
Collateral”, the Collateral Requirement with respect to the pledge of Equity Interests of a Foreign
Subsidiary shall be deemed satisfied if the only requirement that is not satisfied is the taking of
any action that may be required under the laws of the jurisdiction where such Foreign Subsidiary is
organized and the Administrative Agent












 



18



has determined, pursuant to the penultimate paragraph of the definition of “Collateral
Requirement”, that the taking of such action is not required.




          “EMU Legislation” means the legislative measures of the European Union for the
introduction of, changeover to, or operation of the Euro in one or more member states.




          “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions or binding agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the environment, preservation or reclamation of
natural resources or the management, release or threatened release of any Hazardous Material.




          “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Parent or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.




          “Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.




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




          “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Parent, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.




          “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA,
with respect to a Plan (other than an event for which the 30-day notice period is waived), (b) any
failure by any Plan to satisfy the minimum funding standard (within the meaning of Section 412 of
the Code or Section 302 of ERISA), applicable to such Plan, whether or not waived, (c) the filing
pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan, (d) a determination that any Plan is, or is
expected to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4)
of the Code) and the Parent or ERISA Affiliate, as applicable, fails to make required contributions
for a plan year with respect to such Plan by the annual due












 



19



date for
such contribution as determined under Section 303(j) of ERISA, (e) the incurrence by the Parent or any ERISA
Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan, (f)
the receipt by the Parent or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to the intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan, (g) the incurrence by the Parent or any ERISA Affiliate of any liability under
Title IV of ERISA with respect to the withdrawal or partial withdrawal of the Parent or any ERISA
Affiliate from any Plan or Multiemployer Plan, (h) the receipt by the Parent or any ERISA Affiliate
of any notice, or the receipt by any Multiemployer Plan from the Parent or any ERISA Affiliate of
any notice, concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA or in endangered or critical status, within the meaning of Section 305 of ERISA,
(i) the occurrence of a “prohibited transaction” with respect to which the Parent or any of the
Subsidiaries is a “disqualified person” (within the meaning of Section 4975 of the Code) or with
respect to which the Parent or any such Subsidiary could otherwise be liable or (j) any Foreign
Benefit Event.




          “EURIBO Rate” means, with respect to any Eurodollar Borrowing denominated in Euro for
any Interest Period, the Euro interbank offered rate per annum determined by reference to the
Banking Federation of the European Union for deposits with a maturity comparable to such Interest
Period denominated in Euro, as reflected on page 248 of the Telerate Service (or on any successor
or substitute page of such Service, or any successor to or substitute for such Service, providing
rate quotations comparable to those currently provided on such page of such Service, as determined
by the Administrative Agent from time to time for purposes of providing quotations of interest
rates applicable to deposits in Euro in the European interbank market) at approximately 10:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period, as the rate for
Euro deposits with a maturity comparable to such Interest Period. In the event that such rate is
not available at such time for any reason, then the “EURIBO Rate” with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which Euro deposits equal to the
Dollar Equivalent of $5,000,000 and for a maturity comparable to such Interest Period are offered
by the principal London office of the Administrative Agent in immediately available funds in the
European interbank market at approximately 10:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.




          “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate or the Adjusted EURIBO Rate, as applicable.




          “Euro” means the single currency of the Participating Member States of the European
Union as constituted by the Treaty on European Union and as referred to in the EMU Legislation.




          “Event of Default” has the meaning assigned to such term in Article VII.













 



20




          “Excluded Guarantee” means any Guarantee by any Loan Party of (a) any Indebtedness of
a Foreign Subsidiary, to the extent such Guarantee relates to (i) Indebtedness that was outstanding
on the Restatement Effective Date or was incurred under (and within the limits of the amount of) a
line of credit in a specified amount that was in effect on the Restatement Effective Date or (ii)
any renewal or replacement after the Restatement Effective Date of Indebtedness that, as of the
Restatement Effective Date, is permitted by clause (i) above (without increasing the amount
permitted), and (b) obligations under leases and similar obligations incurred in the ordinary
course of business consistent with past practices and/or industry practices that do not constitute
Indebtedness.




          “Excluded Subsidiary” means, at any time, any Subsidiary affected by an event referred
to in clause (i), (j) or (k) of Article VII at such time that would constitute an Event of Default
if such Subsidiary was not an “Excluded Subsidiary”; provided that (a) no Loan Party shall
be an Excluded Subsidiary and (b) a Subsidiary shall not be an Excluded Subsidiary if such
Subsidiary (on a consolidated basis with all other Excluded Subsidiaries affected by an event
referred to in clause (i), (j) or (k) of Article VII and their respective subsidiaries) (i) account
for more than 5% of Total Assets of the Parent or (ii) account for more than 5% of the consolidated
revenues of the Parent and the Subsidiaries for the most recently ended period of four consecutive
fiscal quarters for which financial statements are available, in each case, determined in
accordance with GAAP.




          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income, franchise or similar Taxes imposed on (or measured by) its net
income or, in the case of franchise or similar Taxes, gross receipts, by the United States of
America, or by the jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its applicable lending office
is located or in which such Lender is otherwise doing business, (b) any branch profits Taxes
imposed by the United States of America or any similar Tax imposed by any other jurisdiction in
which the Borrower is located, (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 2.19(b)), any withholding Tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office) except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending office (or assignment),
to receive additional amounts from the Borrower with respect to such withholding Tax pursuant to
Section 2.16(a), (d) any Taxes imposed or withheld under FATCA, (e) any Taxes attributable to a
failure by a Lender, the Administrative Agent or an Issuing Bank to comply with Section 2.16(e) and
(f) any withholding Taxes imposed as a result of a change in the circumstances of such Lender or
Issuing Bank after becoming a Lender or Issuing Bank hereunder, other than a Change in Law.













 



21




          “Existing Convertible Notes” means the 2% senior convertible notes due 2024 issued
pursuant to the Indenture, dated as of February 11, 2004, between the Parent and BNY Midwest Trust
Company, as trustee.




          “Existing Convertible Notes Indentures” means the indentures pursuant to which the
Existing Convertible Notes were issued.




          “Existing Credit Agreement” means the Credit Agreement, dated as of January 9, 2004,
as amended and restated as of December 18, 2009, and in effect immediately prior to the Restatement
Effective Date, among the Borrower, the Parent, the several lenders party thereto and the
Administrative Agent.




          “Existing Debt Securities” means the Existing Senior Notes and the Existing
Convertible Notes, in each case outstanding as of the Restatement Effective Date.




          “Existing Letters of Credit” means letters of credit outstanding under the Original
Credit Agreement on and as of the Effective Date.




          “Existing Senior Notes” means (a) the 5.25% senior notes due 2014 issued pursuant to
the Indenture, dated as of February 11, 2004, between the Borrower, the Parent and BNY Midwest
Trust Company, as trustee, outstanding as of the Restatement Effective Date and (b) the 7.875%
senior notes due 2017 issued pursuant to the Indenture, dated as of February 27, 2007, among the
Borrower, the Parent and The Bank of New York Trust Company, N.A., as trustee, outstanding as of
the Restatement Effective Date.




          “Existing Senior Notes Indentures” means the indentures pursuant to which the Existing
Senior Notes were issued.




          “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement
(or any amended or successor version that is substantively comparable and not materially more
onerous to comply with, for a Person that complies with Sections 1471 through 1474 of the Code, in
order to avoid withholding under FATCA), and any current or future regulations or official
interpretations thereof.




          “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it;
provided that if such day is not a Business Day, the Federal Funds Effective Rate for such
day shall be the same as that for the next preceding Business Day.













 



22




          “Fee Receiver” means any Person that receives, or through a participating interest
participates in, any payments of fees under Section 2.11(a) or Section 2.11(b) of this Agreement or
under Section 5 of the Amendment and Restatement Agreement.




          “Financial Officer” means, with respect to the Parent or the Borrower, the chief
financial officer, principal accounting officer, treasurer or controller thereof, as applicable.




          “First Lien Intercreditor Agreement” means the First Lien Intercreditor Agreement
entered into by the Collateral Agent, the Administrative Agent, the trustee under the Senior
Secured Notes Indenture, the Parent, the Borrower and any other party thereto.




          “Foreign Benefit Event” means, with respect to any Foreign Pension Plan, (a) the
existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in
excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the
failure to make the required contributions or payments, under any applicable law, on or before the
due date for such contributions or payments, (c) the receipt of a notice by a Governmental
Authority relating to the intention to terminate any such Foreign Pension Plan or to appoint a
trustee or similar official to administer any such Foreign Pension Plan, or alleging the insolvency
of any such Foreign Pension Plan, (d) the incurrence of any liability by the Parent or any
Subsidiary under applicable law on account of the complete or partial termination of such Foreign
Pension Plan or the complete or partial withdrawal of any participating employer therein, in each
case except as could not reasonably be expected to result in a Material Adverse Effect or (e) the
occurrence of any transaction that is prohibited under any applicable law and that could reasonably
be expected to result in the incurrence of any liability by the Parent or any Subsidiary, or the
imposition on the Parent or any Subsidiary of any fine, excise tax or penalty resulting from any
noncompliance with any applicable law, in each case except as could not reasonably be expected to
result in a Material Adverse Effect.




          “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.




          “Foreign Pension Plan” means any benefit plan that under applicable law of any
jurisdiction other than the United States is required to be funded through a trust or other funding
vehicle other than a trust or funding vehicle maintained exclusively by a Governmental Authority
and that would constitute a defined benefit pension plan under U.S. law.




          “Foreign Subsidiary” means (a) any Subsidiary that is organized under the laws of a
jurisdiction other than the United States of America or any State thereof or the District of
Columbia and (b) any Subsidiary, organized under the laws of any jurisdiction, of a Subsidiary
described in clause (a) above.













 



23




          “Foreign Subsidiary Debt” means, in respect of any Direct Foreign Subsidiary as of any
date, the amount of Indebtedness that would be reflected on a consolidated balance sheet of such
Direct Foreign Subsidiary as of such date in accordance with GAAP.




          “GAAP” means generally accepted accounting principles in the United States of America.




          “GM” means General Motors Company.




          “GM Access and Security Agreement” means the Access and Security Agreement dated as of
September 16, 2009 between the Parent, the Borrower and GM.




          “GM Documents” means the GM Access and Security Agreement, the GM Settlement Agreement
and the warrant agreement dated as of September 16, 2009 between the Parent and GM.




          “GM Settlement Agreement” means the GM Settlement and Commercial Agreement dated as of
September 16, 2009 between the Parent, the Borrower and GM.




          “Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.




          “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business or customary and reasonable indemnity obligations entered into
in connection with any acquisition or disposition of assets permitted under this Agreement.




          “Guarantee Agreement” means the Guarantee Agreement, substantially in the form of
Exhibit A, among the Borrower, the Guarantors and the Administrative Agent.













 



24




          “Guarantors” means, as of any date, the Parent and each Subsidiary Loan Party that is
a party to the Guarantee Agreement as a guarantor thereunder as of such date.




          “Hazardous Materials” means all explosive or radioactive substances or wastes, all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, and
all other substances or wastes of any nature regulated pursuant to any Environmental Law.




          “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person upon which interest charges are
customarily paid (excluding current accounts payable incurred in the ordinary course of business),
(d) all obligations of such Person under conditional sale or other title retention agreements
relating to property acquired by such Person, (e) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts payable incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been
assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty, (j) all obligations,
contingent or otherwise, of such Person in respect of bankers’ acceptances and (k) Receivables
Financing Debt. The Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the extent such Person is
liable therefor as a result of such Person’s ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such Person is not liable
therefor; provided that, if the sole asset of such Person is its ownership interest in such
other entity, the amount of such Indebtedness shall be deemed equal to the value of such ownership
interest. For the avoidance of doubt, the Indebtedness of the Borrower or any other Subsidiary
shall not include any obligations of the Borrower or such other Subsidiary arising in the ordinary
course of business from the establishment, offering and maintenance by the Borrower or such other
Subsidiary, as the case may be, of trade payables financing programs under which suppliers to the
Borrower or such other Subsidiary, as the case may be, can request accelerated payment from one or
more designated financial institutions; provided that (i) the Borrower or such other
Subsidiary, as the case may be, reimburses the designated financial institution or institutions for
such accelerated payment on the date specified in the purchase terms and conditions previously
agreed upon by the applicable supplier and the Borrower or such other Subsidiary, as the case may
be and (ii) had such financial institution or institutions not paid such obligations to the
applicable supplier, such obligations would have been required to be classified as a trade payable
in the consolidated financial statements of the












 



25



Borrower or such other Subsidiary, as the case may be, prepared in accordance with GAAP.




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




          “Intellectual Property” has the meaning specified in the Collateral Agreement.




          “Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.07.




          “Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December, (b) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Loan with an Interest Period of more than three months’ duration,
each day prior to the last day of such Interest Period that occurs at intervals of three months’
duration after the first day of such Interest Period, and (c) with respect to any Swingline Loan,
the day that such Loan is required to be repaid.




          “Interest Period” means, with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the date that is 21 days thereafter or on
the numerically corresponding day in the calendar month that is one, two, three or six months
thereafter (or such other period agreed to by each Lender participating in such Borrowing), as the
Borrower may elect; provided that (i) if any Interest Period would end on a day other than
a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day and (ii) any Interest Period that is
measured in months and that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of such Interest Period)
shall end on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is
made and thereafter shall be the effective date of the most recent conversion or continuation of
such Borrowing.




          “International Holdco” means AAM International Holdings, Inc., a Delaware corporation.




          “Issuing Bank” means (a) JPMorgan Chase Bank, N.A., in its capacity as an issuer of
Letters of Credit hereunder, (b) any other Class D Lender that agrees in writing with the Borrower
to become an issuer of Letters of Credit hereunder (with notice to the Administrative Agent), and
(c) their respective successors in such capacity as provided in Section 2.05(i). An Issuing Bank
may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of
such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.













 



26




          “Krona” or “Kronor” means the lawful currency of the Kingdom of Sweden.




          “LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of
Credit.




          “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Dollar Letters of Credit at such time plus (b) the aggregate amount of all LC
Disbursements denominated in Dollars that have not yet been reimbursed by or on behalf of the
Borrower at such time plus (c) the Assigned Dollar Value of the aggregate undrawn amount of all
outstanding Alternative Currency Letters of Credit at such time plus (d) the Assigned Dollar Value
of the aggregate amount of all LC Disbursements denominated in an Alternative Currency that have
not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Class
D Lender at any time shall be its Applicable Class D Percentage of the total LC Exposure at such
time.




          “Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Assumption, other than any such Person
that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context
otherwise requires, the term “Lenders” includes the Swingline Lender.




          “Letter of Credit” means any letter of credit issued pursuant to this Agreement
(whether a standby letter of credit, a commercial letter of credit or otherwise). The Existing
Letters of Credit shall be deemed to be issued pursuant to this Agreement on the Effective Date and
shall be considered Letters of Credit hereunder.




          “LIBO Rate” means, with respect to any Eurodollar Borrowing denominated in Dollars or
Sterling for any Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on such page of such
Service, as determined by the Administrative Agent from time to time for purposes of providing
quotations of interest rates applicable to Dollar or Sterling deposits, as the case may be, in the
London interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for Dollar or Sterling deposits, as applicable,
with a maturity comparable to such Interest Period. In the event that such rate is not available
at such time for any reason, then the “LIBO Rate” with respect to such Eurodollar Borrowing
for such Interest Period shall be the rate at which Dollar or Sterling deposits, as applicable, of
$5,000,000 (or the Dollar Equivalent, if applicable) and for a maturity comparable to such Interest
Period are offered by the principal London office of the Administrative Agent in immediately
available funds in the London interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.













 



27




          “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.




          “Lien Basket Amount” means, as of any date, an amount equal to 10% of “Consolidated
Net Tangible Assets” (within the meaning of the Existing Senior Notes Indentures) as of such date.




          “Loan Documents” means this Agreement, the Guarantee Agreement, the Security Documents
and the Amendment and Restatement Agreement; provided that, during a Collateral Release
Period, the “Loan Documents” shall not include the Security Documents.




          “Loan Parties” means the Parent, the Borrower and the Subsidiary Loan Parties.




          “Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.




          “Local Time” means (a) with respect to any Loan, Borrowing or Letter of Credit
denominated in Dollars, New York City time and (b) with respect to any Loan, Borrowing or Letter of
Credit denominated in any Alternative Currency, London time.




          “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations, or financial condition of the Parent and the Subsidiaries taken as a whole, (b) the
ability of any Loan Party to perform any of its material obligations under the Loan Documents or
(c) the validity and enforceability of any Loan Document, or the rights and remedies of the Lenders
hereunder or under any other Loan Document, taken as a whole.




          “Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the Parent
and its Subsidiaries in an aggregate principal amount exceeding $50,000,000. For purposes of
determining Material Indebtedness, the “principal amount” of the obligations of the Parent or any
Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Parent or such Subsidiary would be required to
pay if such Swap Agreement were terminated at such time.




          “Material Properties” means (a) those Mortgaged Properties designated on Schedule 3.12
as Material Properties and (b) each other Mortgaged Property with respect to which a Mortgage is
granted pursuant to Section 5.11 after the Restatement Effective Date.













 



28




          “Material Subsidiary” means, as of any date, any Subsidiary (other than the Borrower,
a Foreign Subsidiary or a Receivables Subsidiary) that either (a) accounts (together with its
subsidiaries on a consolidated basis) for more than 10% of Total Assets of the Parent or (b)
accounts (together with its subsidiaries on a consolidated basis) for more than 10% of the
consolidated revenues of the Parent and the Subsidiaries for the most recently ended period of four
consecutive fiscal quarters for which financial statements are available, in each case, determined
in accordance with GAAP.




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




          “Mortgage” means a mortgage, deed of trust, assignment of leases and rents or other
Security Document granting a Lien on any Mortgaged Property to secure any of the Secured
Obligations. Each Mortgage shall be reasonably satisfactory in form and substance to the
Collateral Agent.




          “Mortgaged Property” means, initially, each parcel of real property and the
improvements thereto owned by a Loan Party and identified on Schedule 3.12 as a Mortgaged Property,
and includes each other parcel of real property and improvements thereto with respect to which a
Mortgage is granted pursuant to Section 5.11.




          “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA that is, or within any of the preceding five plan years was, sponsored, maintained or
contributed to, or required to be sponsored, maintained or contributed to, by the Parent or any
ERISA Affiliate.




          “Net Cash Proceeds”, with respect to any Asset Disposition, means the cash proceeds
thereof net of (a) attorneys’ fees, accountants’ fees, commissions and brokerage, consultant and
other fees and expenses actually incurred in connection with such Asset Disposition, (b) taxes paid
or payable as a result thereof, (c) any reserve for any purchase price adjustment or any
indemnification payments (fixed and contingent) in connection with such Asset Disposition;
provided that if any such reserve is later released, such amount shall be included in the
calculation of Net Cash Proceeds, and (d) the principal amount of any Indebtedness (other than
Indebtedness under the Loan Documents or the Senior Secured Notes Indenture) that is secured by the
assets subject to such Asset Disposition and any related premiums, fees, expenses and other amounts
due thereunder and that are required to be repaid in connection therewith.




          “Net Priority Leverage Ratio” means, on any date, the ratio of (a) an amount equal to
(i) the Total Priority Indebtedness as of such date, minus (ii) the lesser as of such date of (A)
$100,000,000 and (B) the aggregate amount of Unrestricted Cash to (b) Consolidated EBITDA of the
Parent for the period of four consecutive fiscal quarters of the Parent ended on such date (or, if
such date is not the last day of a fiscal quarter, ended on the last day of the fiscal quarter of
the Parent most recently ended prior to such date).




          “Non-Consenting Lender” means, in the event that (i) the Borrower or the
Administrative Agent has requested that the Lenders consent to a departure or waiver of












 



29



any provisions of the Loan Documents or agree to any amendment thereto, (ii) the consent,
waiver or amendment in question requires the agreement of all affected Lenders in accordance with
the terms of Section 9.02 or all the Lenders with respect to a certain Class of the Loans
and (iii) the Required Lenders or a majority in interest of such Class have agreed to such consent,
waiver or amendment, any Lender who does not agree to such consent, waiver or amendment.




          “NWO Subsidiary” means any Subsidiary of the Borrower with respect to which (except
for directors’ qualifying shares) the Borrower owns, directly or indirectly, Equity Interests
representing less than 100% of the outstanding Equity Interests and less than 100% of the
outstanding voting Equity Interests; provided that a Subsidiary shall not be a “NWO
Subsidiary” if (a) such Subsidiary was a Subsidiary Loan Party before it met the foregoing criteria
for becoming a “NWO Subsidiary”, unless such Subsidiary became a “NWO Subsidiary” pursuant to a
transfer of all Equity Interests in such Subsidiary owned, directly or indirectly, by the Borrower
to a NWO Subsidiary, in accordance with this Agreement or (b) such Subsidiary is not prohibited
from guaranteeing the Secured Obligations (it being understood that the Parent and the Subsidiaries
will exercise reasonable efforts (which shall not include undue costs or expenses) to obtain any
consent or approval necessary to avoid any such prohibition).




          “Original Credit Agreement” means the Credit Agreement, dated as of October 27, 1997,
among the Borrower, the Parent, the several lenders party thereto and JPMorgan Chase Bank, as
administrative agent, as amended and in effect immediately prior to the Effective Date.




          “Other Taxes” means any and all present or future stamp, documentary Taxes and any
other excise, or property, intangible, recording, filing or similar Taxes which arise from any
payment made under, from the execution, delivery, or registration of, or from the receipt or
perfection of a security interest under, enforcement of, or otherwise with respect to, any Loan
Document.




          “Parent” means American Axle & Manufacturing Holdings, Inc., a Delaware corporation.




          “Participant” has the meaning set forth in Section 9.04.




          “Participant Register” has the meaning set forth in Section 9.04.




          “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.




          “Perfection Schedule” has the meaning specified in the Collateral Agreement.




          “Permitted Acquisition” means any acquisition by the Borrower or any other Subsidiary
of all or substantially all the assets of, or all the Equity Interests in, a Person or division or
line of business of a Person if, immediately after giving effect












 



30



thereto, (a) no Default has occurred and is continuing or would result therefrom, (b) the
business of such acquired Person or division or line of business shall comply with the permitted
businesses of the Borrower and the other Subsidiaries as provided in Section 6.03(b), (c) the
portion of the fair market value of the consideration paid or delivered by any Loan Parties for
such acquisition (excluding Equity Interests of the Parent) that is attributable to investments in
Persons (whether or not Subsidiaries) that do not become Loan Parties as a result of such
acquisition but in which the Borrower or any other Subsidiary shall own, directly or indirectly,
any investment as a result of such acquisition (including the investment in the Person acquired, if
it is not a Subsidiary Loan Party) are treated, at the time of such acquisition, as investments in
such Person pursuant to Section 6.04 and are permitted to be made thereunder at such time (other
than pursuant to the clause thereof that permits Permitted Acquisitions), (d) the Parent would have
been in compliance with the covenant contained in Section 6.09 or Section 6.10, as applicable, as
of the last day of the most recently ended fiscal quarter of the Parent for which financial
statements are available (the “Test Date”), determined as provided below, and (e) for any
acquisition (or series of related acquisitions) involving consideration (excluding Equity Interests
of the Parent) exceeding $20,000,000, the Borrower has delivered to the Administrative Agent a
certificate executed by a Financial Officer to the effect set forth in clauses (a), (b), (c) and
(d) above, together with all relevant financial information for the Person or assets to be acquired
and reasonably detailed calculations demonstrating satisfaction of the requirement set forth in
clause (d) above and compliance with Section 6.01 in respect of any Indebtedness resulting from
such acquisition. For purposes of clause (d) above, compliance with Section 6.09 or Section 6.10,
as applicable, shall be determined as though such acquisition, and each other acquisition of an
Acquired Entity or Business consummated subsequent to the Test Date, had occurred on the Test Date,
and as though the sale or disposition of any Sold Entity or Business sold or disposed of subsequent
to the Test Date had been sold or disposed of on the Test Date.




          “Permitted Encumbrances” means:





     (a) Liens imposed by law for Taxes that are not yet due or are being contested in
compliance with Section 5.04;




     (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s construction,
artisan’s and other like Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 60 days or are being contested
in compliance with Section 5.04;




     (c) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations
and deposits securing liability to insurance carriers under insurance or self-insurance
arrangements in respect of such obligations;




     (d) deposits to secure or in connection with the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance









 



31



bonds and other
obligations of a like nature, in each case in the ordinary course of business, including those incurred to secure health, safety and environmental
obligations in the ordinary course of business;




     (e) judgment liens in respect of judgments that do not constitute an Event of Default
under clause (l) of Article VII;




     (f) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business which, in the
aggregate, are not substantial in amount and do not materially detract from the value of
the affected property or materially interfere with the ordinary conduct of business of the
Parent or any Subsidiary;




     (g) Liens arising by virtue of any statutory or common law provision relating to
banker’s liens, rights of setoff or similar rights as to deposit accounts or other funds
maintained with creditor depository institution; and




     (h) landlord’s Liens under leases of property to which the Parent or a Subsidiary is a
party;




provided that the term “Permitted Encumbrances” shall not
include any Lien securing Indebtedness.



          “Permitted Fee Receiver” means any Fee Receiver that, with respect to any fees paid
under Section 2.11(a) or Section 2.11(b) of this Agreement or under Section 5 of the Amendment and
Restatement Agreement, delivers to the Borrower and the Administrative Agent, on or prior to the
date on which such Fee Receiver becomes a party hereto (and from time to time thereafter upon the
request of the Borrower and the Administrative Agent, unless such Fee Receiver becomes legally
unable to do so solely as a result of a Change in Law after becoming a party hereto), accurate and
duly completed copies (in such number as requested) of one or more of Internal Revenue Service
Forms W-9, W-8ECI, W-8EXP, W-8BEN or W-8IMY (together with, if applicable, one of the
aforementioned forms duly completed from each direct or indirect beneficial owner of such Fee
Receiver) or any successor form thereto that entitles such Fee Receiver to a complete exemption
from U.S. withholding Tax on such payments (provided that, in the case of the Internal
Revenue Service Form W-8BEN, a Fee Receiver providing such form shall qualify as a Permitted Fee
Receiver only if such form establishes such exemption on the basis of the “business profits” or
“other income” articles of a tax treaty to which the United States is a party and provides a U.S.
taxpayer identification number), in each case together with such supplementary documentation as may
be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine
whether such Fee Receiver is entitled to such complete exemption.




          “Permitted Governmental Receivables Program” means the Auto Supplier Support Program
established by the United States Department of the Treasury pursuant to the authority granted to it
by and under the Emergency Economic Stabilization Act of 2008, as amended, or any other similar
governmental receivables program approved by









 



32


the Administrative Agent in its reasonable discretion;
provided that the Parent or the
Borrower shall deliver to the Administrative Agent copies of all documentation entered into in
connection with any such transaction.




          “Permitted Investments” means:





     (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency or
instrumentality thereof to the extent such obligations are backed by the full faith and
credit of the United States of America),




     (b) investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, a rating of at least A-1 by
S&P or P-1 by Moody’s;




     (c) investments in certificates of deposit, banker’s acceptances and time deposits
maturing within 270 days from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, (i) any Lender, (ii)
any domestic office of any commercial bank organized under the laws of the United States of
America or any State thereof or any foreign country recognized by the United States of
America which has a combined capital and surplus and undivided profits of not less than
$250,000,000 (or the foreign currency equivalent thereof) or (iii) any bank whose
short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or
from Moody’s is at least P-1 or the equivalent thereof;




     (d) fully collateralized repurchase agreements with a term of not more than 30 days
for securities described in clauses (a), (e) and (f) of this definition of “Permitted
Investments” and entered into with a financial institution satisfying the criteria
described in clause (c) above;




     (e) money market funds that (i) comply with the criteria set forth in Securities and
Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA
by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000;




     (f) securities with maturities of six months or less from the date of acquisition
issued or fully guaranteed by any State, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated at least A
by S&P or Moody’s;




     (g) in the case of any Foreign Subsidiary, (i) direct obligations of the sovereign
nation (or any agency thereof) in which such Subsidiary is organized and is conducting
business or in obligations fully and unconditionally guaranteed by such sovereign nation
(or any agency thereof), (ii) investments of the type and maturity described in clauses (a)
through (f) above of foreign obligors, which investments or obligors (or the parents of
such obligors) have ratings described in









 



33



such clauses or equivalent ratings from comparable
foreign rating agencies and
(iii) investments of the type and maturity described in clauses (a) through (f) above
of foreign obligors (or the parents of such obligors), which investments of obligors (or
the parents of such obligors) are not rated as provided in such clauses or in clause (ii)
above but which are, in the reasonable judgment of the Parent and the Borrower, comparable
in investment quality to such investments and obligors (or the parents of such obligors);




     (h) shares of mutual funds whose investment guidelines restrict 95% of such funds’
investments to those satisfying the provisions of clauses (a) through (f) above; and




     (i) time deposit accounts, certificates of deposits and money market deposits in an
aggregate face amount not in excess 1% of Total Assets of the Parent as of the end of the
Parent’s most recently completed fiscal year.



          “Permitted Joint Ventures” means those investments in joint ventures described on
Schedule 6.04B.




          “Permitted Receivables Factoring” means a factoring transaction pursuant to which the
Parent or one or more Subsidiaries (or a combination thereof) sells (on a non-recourse basis, other
than Standard Securitization Undertakings) Receivables (and Related Security) for cash
consideration to a Person or Persons (other than to an Affiliate or to GM or any of its
Affiliates); provided that the Parent or the Borrower shall deliver to the Administrative
Agent copies of all documentation entered into in connection with any such transaction.




          “Permitted Receivables Financing” means a Permitted Receivables Securitization, a
Permitted Governmental Receivables Program or a Permitted Receivables Factoring.




          “Permitted Receivables Securitization” means transactions (other than pursuant to a
Permitted Governmental Receivables Program or Permitted Receivables Factoring) pursuant to which
the Parent or one or more of the Subsidiaries (or a combination thereof) realizes cash proceeds in
respect of Receivables and Related Security by selling or otherwise transferring such Receivables
and Related Security (on a non-recourse basis with respect to the Parent and the Subsidiaries,
other than Standard Securitization Undertakings) to one or more Receivables Subsidiaries, and such
Receivables Subsidiary or Receivables Subsidiaries realize cash proceeds in respect of such
Receivables and Related Security; provided that the Parent or the Borrower shall deliver to
the Administrative Agent copies of all documentation entered into in connection with any such
transaction.




          “Permitted Refinancing Indebtedness” means any Indebtedness (other than any
Indebtedness incurred under this Agreement) of the Parent or a Subsidiary, issued in exchange for,
or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund
(collectively, to “Refinance”), Indebtedness of the Parent or such












 



34



Subsidiary, as the case may be, that is permitted by this Agreement to be Refinanced;
provided that:





     (a) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so Refinanced (plus all refinancing expenses incurred in
connection therewith, including, without limitation, any related fees and expenses,
make-whole amounts, original issue discount, unpaid accrued interest and premium thereon);




     (b) the average life to maturity of such Permitted Refinancing Indebtedness is greater
than or equal to (and the maturity of such Permitted Refinancing Indebtedness is no earlier
than) that of the Indebtedness being Refinanced;




     (c) if the Indebtedness being Refinanced is subordinated in right of payment to any of
the Secured Obligations, such Permitted Refinancing Indebtedness shall be subordinated in
right of payment to such Secured Obligations on terms at least as favorable, taken as a
whole, to the Lenders as those contained in the documentation governing the Indebtedness
being Refinanced; provided that a certificate of an officer of the Borrower is
delivered to the Administrative Agent at least ten (10) Business Days (or such shorter
period as the Administrative Agent may reasonably agree) prior to the incurrence of such
Indebtedness, together with a reasonably detailed description of the material terms and
conditions of such subordination terms or drafts of the documentation relating thereto,
stating that (i) the Borrower has determined in good faith that such terms and conditions
satisfy the foregoing requirement and (ii) unless the Administrative Agent disagrees by a
specified date (as provided below), such terms and conditions shall be permitted, shall be
conclusive evidence that such terms and conditions satisfy the foregoing requirement unless
the Administrative Agent notifies the Borrower within such period that it disagrees with
such determination (including a reasonable description of the basis upon which it
disagrees);




     (d) no Permitted Refinancing Indebtedness shall have different obligors than the
Indebtedness being Refinanced; and




     (e) in the case of a Refinancing of Restricted Debt, the terms of such Permitted
Refinancing Indebtedness shall be no less favorable taken as a whole to the Parent and the
Subsidiaries than the terms of the Indebtedness being Refinanced; provided that (i)
a certificate of an officer of the Borrower is delivered to the Administrative Agent at
least ten (10) Business Days (or such shorter period as the Administrative Agent may
reasonably agree) prior to the incurrence of such Indebtedness, together with a reasonably
detailed description of the material terms and conditions of such Indebtedness or drafts of
the documentation relating thereto, stating that (A) the Borrower has determined in good
faith that such terms and conditions satisfy the foregoing requirement and









 



35




(B) unless the Administrative Agent disagrees by a specified date (as provided below),
such terms and conditions shall be permitted, shall be conclusive evidence that such terms
and conditions satisfy the foregoing requirement unless the Administrative Agent notifies
the Borrower within such period that it disagrees with such determination (including a
reasonable description of the basis upon which it disagrees) and (ii) the pricing terms may
be less favorable to the Parent and the Subsidiaries so long as it is being refinanced at
the then-prevailing market price.



          “Permitted Second Lien Indebtedness” means Indebtedness of the Borrower for borrowed
money in an aggregate principal amount not to exceed $200,000,000; provided that (a) such
Indebtedness matures no earlier than, and is not required (whether upon occurrence of any
contingency or otherwise) to be repaid, redeemed, repurchased or defeased, in whole or in part,
prior to, June 30, 2017, except (i) upon the occurrence of an “event of default” or “change of
control” or (ii) pursuant to provisions requiring the Borrower to prepay or redeem, or offer to
prepay or redeem, such Indebtedness with the net cash proceeds of asset sales, insurance or similar
proceeds or of Equity Interests issued by the Parent, provided such provisions do not require any
such prepayment, redemption or offer to be made to the extent such proceeds are applied, within one
year after receipt, to either (A) acquire real property, equipment or other tangible assets to be
used in, or to otherwise make an investment in, the business of the Borrower or the Subsidiaries or
(B) prepay the Senior Secured Notes or reduce Commitments, (b) such Indebtedness is not Guaranteed
by any Person that is not a Guarantor (and provides for release of any such Guarantee by any
Subsidiary Loan Party upon release of its Guarantee under the Guarantee Agreement), (c) such
Indebtedness (including any Guarantees thereof) is not secured by any assets other than Collateral,
(d) a Second Lien Intercreditor Agreement shall have been executed and delivered in respect of such
Indebtedness and shall be binding upon the holders thereof and any agent or trustee for such
holders, (e) the provisions of such Indebtedness shall have terms (other than with respect to
pricing) that, taken as a whole, are no less favorable to the Parent and the Subsidiaries than
those contained in this Agreement, (f) at the time of, and after giving effect to, the incurrence
of such Indebtedness, no Default shall have occurred and be continuing, (g) the Parent shall be in
compliance with Section 6.09 for the most recent period of four consecutive fiscal quarters for
which financial statements have been delivered hereunder, determined on a pro forma basis as though
such Indebtedness had been incurred at the beginning of such period and (h) a certificate of a
Financial Officer is delivered to the Administrative Agent at least five Business Days (or such
shorter period as the Administrative Agent may agree) prior to the incurrence of such Indebtedness
(i) certifying that such Indebtedness shall satisfy the requirements of this definition (and
attaching reasonably detailed calculations demonstrating compliance with clause (g) above) and (ii)
attaching a reasonably detailed description of the material terms of such Indebtedness.




          “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.













 



36




          “Peso” or “Pesos” means the lawful currency of Mexico.




          “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA
sponsored, maintained, or contributed to by the Parent or any ERISA Affiliate.




          “Pledged Equity Value” means, in respect of any Direct Foreign Subsidiary as of any
date, an amount equal to (a) (i)the amount determined by multiplying (A) the Consolidated EBITDA of
such Direct Foreign Subsidiary for the period of four consecutive fiscal quarters most recently
ended on or prior to such date, by (B) 4, minus (ii) the Foreign Subsidiary Debt in respect of such
Direct Foreign Subsidiary as of such date, multiplied by (b) the percentage that (i) the
outstanding Equity Interests in such Direct Foreign Subsidiary included in the Eligible Collateral
as of such date represents of (ii) the total outstanding Equity Interests in such Direct Foreign
Subsidiary.




          “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City;
each change in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.




          “Priority Indebtedness” means, without duplication, (a) the Aggregate Revolving Credit
Exposure (excluding (i) unfunded LC Exposure in respect of Letters of Credit that support
Indebtedness otherwise included in the calculation of “Priority Indebtedness” and (ii) other
unfunded LC Exposure in an aggregate amount not exceeding $75,000,000), outstanding Senior Secured
Notes, Capital Lease Obligations and Receivables Financing Debt, (b) the outstanding principal
amount of any other Indebtedness (other than Permitted Second Lien Indebtedness or Indebtedness
owing to a Loan Party) that is secured by a Lien on any asset of any Loan Party and (c) the
outstanding principal amount of any Indebtedness of any Subsidiary that is not a Loan Party (other
than Indebtedness owing to the Parent or another Subsidiary).




          “Receivable” means an Account owing to the Parent or any Subsidiary (before its
transfer to a Receivables Subsidiary or to another Person), whether now existing or hereafter
arising, together with all cash collections and other cash proceeds in respect of such Account,
including all yield, finance charges or other related amounts accruing in respect thereof and all
cash proceeds of Related Security with respect to such Receivable.




          “Receivables Financing Debt” means, as of any date with respect to any Permitted
Receivables Financing, the amount of the outstanding uncollected Receivables subject to such
Permitted Receivables Financing that would not be returned, directly or indirectly, to the Parent
or the Borrower, if all such Receivables were to be collected at such date and such Permitted
Receivables Financing were to be terminated at such date.




          “Receivables Subsidiary” means a wholly owned Subsidiary that does not engage in any
activities other than participating in one or more Permitted Receivables












 



37



Securitizations and activities incidental thereto; provided that (a) such Subsidiary
does not have any Indebtedness other than Indebtedness incurred pursuant to a Permitted Receivables
Securitization owed to financing parties (including the Parent or the applicable seller of
Receivables) supported by Receivables and Related Security and (b) neither the Parent nor any
Subsidiary Guarantees any Indebtedness or other obligation of such Subsidiary, other than Standard
Securitization Undertakings.




          “Register” has the meaning set forth in Section 9.04.




          “Related Business” means any business in which the Parent or any of the Subsidiaries
was engaged on the Effective Date and any business related, ancillary or complimentary to such
business.




          “Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.




          “Related Security” means, with respect to any Receivables subject to a Permitted
Receivables Financing, all assets that are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization transactions involving
Receivables, including all collateral securing such Receivables, all contracts and all Guarantee or
other obligations in respect of such Receivables, and all proceeds of such Receivables.




          “Required Lenders” means, at any time, Lenders having Revolving Credit Exposures and
unused Commitments representing more than 50% of the sum of the total Aggregate Revolving Credit
Exposure and unused Commitments at such time.




          “Restatement Effective Date” has the meaning set forth in the Amendment and
Restatement Agreement.




          “Restatement Transactions” means (a) the execution, delivery and performance by the
Parent and the Borrower of the Amendment and Restatement Agreement, (b) the amendment and
restatement of the Existing Credit Agreement as provided in the Amendment and Restatement
Agreement, (c) the execution, delivery and performance by the Loan Parties of the Loan Documents,
(d) the borrowing of Loans and the issuance of Letters of Credit and (e) the other transactions
contemplated by the Amendment and Restatement Agreement.




          “Restricted Debt” means (a) any Existing Debt Securities, (b) any Permitted Second
Lien Indebtedness and (c) any other Indebtedness (other than Indebtedness owed to the Parent or a
Subsidiary) of any Loan Party that (i) matures on or after the date that is one year prior to the
Class D Maturity Date and (ii) is unsecured or is secured by a Lien on Collateral that is junior to
the Lien thereon granted under the Loan Documents.













 



38




          “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Parent or any Subsidiary,
or any payment (whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any Equity Interests in the Parent or any Subsidiary or any option, warrant or other
right to acquire any such Equity Interests in the Parent or any Subsidiary.




          “Restricted Property” means any “Operating Property” or “shares of capital stock or
Debt issued by any Restricted Subsidiary and owned by the Company or Holdings or any Restricted
Subsidiary”, in each case within the meaning of the Existing Senior Notes Indentures.




          “Revaluation Date” means, (a) with respect to an Alternative Currency Borrowing, (i)
each date that is three Business Days before an Interest Payment Date with respect to such
Borrowing and (ii) if the Borrower elects a new Interest Period prior to the end of the existing
Interest Period with respect to such Borrowing, the date of commencement of such new Interest
Period and (b) with respect to an Alternative Currency Letter of Credit, each date that is the
first Monday following the fourth Saturday of each month or, if such date is not a Business Day,
the next succeeding Business Day.




          “Revolving Borrowing” means a Borrowing comprised of Revolving Loans.




          “Revolving Credit Exposures” means Class A Revolving Credit Exposure, Class C
Revolving Credit Exposure and Class D Revolving Credit Exposure.




          “Revolving Loan” means a Class A Revolving Loan, Class C Revolving Loan or Class D
Revolving Loan.




          “S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services
LLC business, and any successor thereto.




          “Second Lien Intercreditor Agreement” means an intercreditor agreement relating to any
Permitted Second Lien Indebtedness substantially in the form of Exhibit H prepared by the
Administrative Agent with such changes agreed to by the Required Lenders.




          “Secured Obligations” has the meaning assigned to such term in the Collateral
Agreement.




          “Secured Parties” has the meaning assigned to such term in the Collateral Agreement.




          “Security Documents” means the Collateral Agreement, the Mortgages, the First Lien
Intercreditor Agreement, any Second Lien Intercreditor Agreement and












 



39



each other security agreement or other instrument or document executed and delivered pursuant
to Section 5.09 or 5.10 to secure any of the Secured Obligations.




          “Senior Secured Notes” means the senior secured notes issued by the Borrower on or
about December 18, 2009.




          “Senior Secured Notes Indenture” means the indenture pursuant to which the Senior
Secured Notes are issued.




          “Sold Entity or Business” has the meaning assigned to such term in the definition of
“Consolidated EBITDA”.




          “Spot Exchange Rate” means, on any day, (a) with respect to any Alternative Currency
in relation to Dollars, the spot rate at which Dollars are offered on such day for such Alternative
Currency which appears on page FXFX of the Reuters Screen at approximately 11:00 a.m., London time
(and if such spot rate is not available on the applicable page of the Reuters Screen, such spot
rate as is quoted by the Administrative Agent to major money center banks at approximately 11:00
a.m., New York City time) and (b) with respect to Dollars in relation to any specified Alternative
Currency, the spot rate at which such specified Alternative Currency is offered on such day for
Dollars which appears on page FXFX of the Reuters Screen at approximately 11:00 a.m., London time
(and if such spot rate is not available on the applicable page of the Reuters Screen, such spot
rate as is quoted by the Administrative Agent to major money center banks at approximately 11:00
a.m., New York City time). For purposes of determining the Spot Exchange Rate in connection with
an Alternative Currency Borrowing, such Spot Exchange Rate shall be determined as of the
Denomination Date for such Borrowing with respect to the transactions in the applicable Alternative
Currency that will settle on the date of such Borrowing.




          “Standard Securitization Undertakings” means representations, warranties, covenants
and indemnities made by the Parent or any of the Subsidiaries in connection with a Permitted
Receivables Financing that are customary for Permitted Receivables Financings of the same type;
provided that Standard Securitization Undertakings shall not include any Guarantee of any
Indebtedness or collectability of any Receivables.




          “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate or the Adjusted EURIBO Rate for eurocurrency funding (currently
referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages
shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements without benefit of
or credit for proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation. The












 



40



Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.




          “Sterling” means lawful money of the United Kingdom.




          “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by
the parent and one or more subsidiaries of the parent.




          “Subsidiary” means any subsidiary of the Parent, including the Borrower.




          “Subsidiary Loan Party” means any Subsidiary that is not the Borrower, a Foreign
Subsidiary, a NWO Subsidiary or a Receivables Subsidiary.




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




          “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Class D Lender at any time
shall be its Applicable Class D Percentage of the total Swingline Exposure at such time.




          “Swingline Lender” means (a) Bank of America, N.A., in its capacity as lender of
Swingline Loans hereunder or (b) any other Class D Lender that agrees in writing with the Borrower
to become the Swingline Lender hereunder (with notice to the Administrative Agent);
provided that there shall not be more than one Swingline Lender hereunder at any time.




          “Swingline Loan” means a Loan made pursuant to Section 2.04.




          “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority, and includes all
liabilities, penalties and interest with respect to such amounts.













 



41




          “Total Assets” means, with respect to any Person as of any date, the amount of total
assets of such Person and its subsidiaries that would be reflected on a balance sheet of such
Person prepared as of such date on a consolidated basis in accordance with GAAP.




          “Total Indebtedness” means, as of any date, the sum (without duplication) of (a) the
aggregate principal amount of Indebtedness of the Parent and the Subsidiaries outstanding as of
such date that consists of Capital Lease Obligations, obligations for borrowed money and
obligations in respect of the deferred purchase price of property or services, determined on a
consolidated basis, plus (b) the aggregate amount, if any, of Receivables Financing Debt of the
Parent and the Subsidiaries outstanding as of such date.




          “Total Net Leverage Ratio” means, on any date, the ratio of (a) an amount equal to (i)
the Total Indebtedness as of such date, minus the (ii) lesser as of such date of (A) $100,000,000
and (B) the aggregate amount of Unrestricted Cash to (b) Consolidated EBITDA of the Parent for the
period of four consecutive fiscal quarters of the Parent ended on such date (or, if such date is
not the last day of a fiscal quarter, ended on the last day of the fiscal quarter of the Parent
most recently ended prior to such date).




          “Total Priority Indebtedness” means, as of any date, the sum (without duplication) of
all Priority Indebtedness of the Parent and the Subsidiaries outstanding as of such date.




          “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to (a)
the Adjusted LIBO Rate or the Adjusted EURIBO Rate or (b) the Alternate Base Rate.




          “Unrestricted Cash” means unrestricted cash and cash equivalents owned by the Loan
Parties and not controlled by or subject to any Lien or other preferential arrangement in favor of
any creditor (other than Liens created under the Loan Documents, any Liens permitted by clause (k)
of Section 6.02 and Liens constituting Permitted Encumbrances of the type referred to in clause (g)
of the definition of such term).




          “USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001.




          “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 I of
Subtitle E of Title IV of ERISA.




          “Withholding Agent” means any Loan Party and the Administrative Agent.













 



42




          (b) Types of Loans and Borrowings. For purposes of this Agreement, Loans may be
classified and referred to by Type (e.g., a “Eurodollar Loan”) or by Class (e.g., a
“Class A Revolving Loan) or by Class and Type (e.g., a Class A “Eurodollar Revolving
Loan”). Borrowings also may be classified and referred to by Type (e.g., a “Eurodollar
Borrowing”) or by Class (e.g., a “Class A Borrowing”) or by Class and Type (e.g., a
“Class A Eurodollar Borrowing”).




          (c) Terms Generally. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.




          (d) Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms
of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided that (a) if the Borrower notifies the Administrative Agent that the
Borrower requests an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request
an amendment to any provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such provision amended in
accordance herewith and (b) notwithstanding any other provision contained herein, all terms of an
accounting or financial nature used herein shall be construed, and all computations of amounts and
ratios referred to herein shall be made, without giving effect to any election under Statement of
Financial Accounting Standards 159, The Fair Value Option for Financial Assets and Financial
Liabilities, or any successor thereto (including pursuant to the Accounting Standards
Codification), to value any Indebtedness of Parent or any Subsidiary at “fair value”, as defined
therein.














 



43




SECTION 16.




The Credits



          (a) Commitments. (A) Subject to the terms and conditions set forth herein, each
Class A Lender severally agrees to make Class A Revolving Loans (in Dollars or, subject to Section
2.02(d), an Alternative Currency other than Kronor or Pesos) to the Borrower from time to time
during the Class A Availability Period, in an aggregate principal amount that will not result in
(i) such Class A Lender’s Class A Revolving Credit Exposure exceeding such Class A Lender’s Class A
Commitment, (ii) the sum of the total Class A Revolving Credit Exposures exceeding the total Class
A Commitments, (iii) the sum of the Assigned Dollar Values of the aggregate principal amount of all
outstanding Class A Revolving Loans denominated in Euro exceeding the Class A Euro Limit, or (iv)
the sum of the Assigned Dollar Values of the aggregate principal amount of all outstanding Class A
Revolving Loans denominated in Sterling exceeding the Class A Sterling Limit.




          (B) Subject to the terms and conditions set forth herein, each Class C Lender severally
agrees to make Class C Revolving Loans (in Dollars or, subject to Section 2.02(d), an Alternative
Currency other than Kronor or Pesos) to the Borrower from time to time during the Class C
Availability Period, in an aggregate principal amount that will not result in (i) such Class C
Lender’s Class C Revolving Credit Exposure exceeding such Class C Lender’s Class C Commitment, (ii)
the sum of the total Class C Revolving Credit Exposures exceeding the total Class C Commitments,
(iii) the sum of the Assigned Dollar Values of the aggregate principal amount of all outstanding
Class C Revolving Loans denominated in Euro exceeding the Class C Euro Limit, or (iv) the sum of
the Assigned Dollar Values of the aggregate principal amount of all outstanding Class C Revolving
Loans denominated in Sterling exceeding the Class C Sterling Limit.




          (C) Subject to the terms and conditions set forth herein, each Class D Lender severally
agrees to make Class D Revolving Loans (in Dollars or, subject to Section 2.02(d), an Alternative
Currency) to the Borrower from time to time during the Class D Availability Period, in an aggregate
principal amount that will not result in (i) such Class D Lender’s Class D Revolving Credit
Exposure exceeding such Class D Lender’s Class D Commitment, (ii) the sum of the total Class D
Revolving Credit Exposures exceeding the total Class D Commitments, (iii) the sum of the Assigned
Dollar Values of the aggregate principal amount of all outstanding Class D Revolving Loans
denominated in Euro plus the total LC Exposure attributable to Letters of Credit and LC
Disbursements denominated in Euro exceeding the Class D Euro Limit, (iv) the sum of the Assigned
Dollar Values of the aggregate principal amount of all outstanding Class D Revolving Loans
denominated in Sterling plus the total LC Exposure attributable to Letters of Credit and LC
Disbursements denominated in Sterling exceeding the Class D Sterling Limit, (v) the sum of the
Assigned Dollar Values of the aggregate principal amount of all outstanding Class D Revolving Loans
denominated in Kronor plus the total LC Exposure attributable to Letters of Credit and LC
Disbursements denominated in












 



44



Kronor exceeding the Class D Krona Limit, or (vi) the sum of the Assigned Dollar Values of the
aggregate principal amount of all outstanding Class D Revolving Loans denominated in Pesos plus the
total LC Exposure attributable to Letters of Credit and LC Disbursements denominated in Pesos
exceeding the Class D Peso Limit.




          (D) Within the foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Revolving Loans.




          (b) Loans and Borrowings. (A) Each Revolving Loan of any Class shall be made as
part of a Borrowing consisting of Revolving Loans of such Class made by the Lenders of such Class
ratably in accordance with their respective Commitments of such Class. The failure of any Lender
to make any Loan required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender’s failure to make Loans as required.




          (B) Subject to Section 2.13, (i) each Revolving Borrowing denominated in Dollars shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance
herewith and (ii) each Revolving Borrowing denominated in an Alternative Currency shall be
comprised entirely of Eurodollar Loans. Each Swingline Loan shall, at the option of the Borrower,
be (i) an ABR Loan or (ii) a Swingline Loan that bears interest at a rate per annum negotiated
between the Borrower and the Swingline Lender. Each Lender at its option may make any Eurodollar
Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the Borrower
to repay such Loan in accordance with the terms of this Agreement and such Lender shall not be
entitled to any amounts payable under Section 2.14, 2.16 or 2.18 to the extent such amounts would
not have been payable had such Lender not exercised such option.




          (C) Subject to paragraph (d) of this Section, at the commencement of each Interest Period for
any Eurodollar Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $5,000,000; provided that, for purposes of
the foregoing, each Alternative Currency Borrowing shall be deemed to be in an amount equal to the
Dollar Equivalent of the amount of such Borrowing at the time such Borrowing was made, without
giving effect to any adjustments to such amount pursuant to Section 2.21; provided
further, that a Class D Eurodollar Revolving Borrowing may be in an aggregate amount that
is required to finance the reimbursement of an LC Disbursement denominated in an Alternative
Currency as contemplated by Section 2.05(e). At the time that each ABR Revolving Borrowing is
made, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and
not less than $1,000,000; provided that an ABR Revolving Borrowing of any Class may be in
an aggregate amount that is equal to the entire unused balance of the total Commitments of such
Class or, in the case of a Class D ABR Revolving Borrowing, that is required to finance the
reimbursement of an LC Disbursement denominated in Dollars as contemplated by Section 2.05(e).
Each Swingline Loan shall be in an amount that is an integral multiple of $500,000 and not less
than $500,000. Borrowings of more than one Type may be outstanding at the same time;












 



45



provided that there shall not at any time be more than a total of 10 Eurodollar
Revolving Borrowings outstanding.




          (D) Loans made pursuant to any Alternative Currency Borrowing shall be made in the
Alternative Currency specified in the applicable Borrowing Request in an aggregate amount equal to
the Alternative Currency Equivalent of the Dollar amount specified in such Borrowing Request;
provided that, for purposes of the Borrowing amounts specified in paragraph (c), each
Alternative Currency Borrowing shall be deemed to be in a principal amount equal to its Assigned
Dollar Value.




          (E) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the (i) Class A Maturity Date in the case of a Class A Borrowing,
(ii) Class C Maturity Date in the case of a Class C Borrowing or (iii) Class D Maturity Date in the
case of a Class D Borrowing.




          (c) Requests for Revolving Borrowings. To request a Revolving Borrowing, the
Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 12:00 noon, New York City time, three Business Days (or, in
the case of an Alternative Currency Borrowing, four Business Days) before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 noon, New York City time, on
the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or facsimile to the Administrative Agent of a
written Borrowing Request in a form approved by the Administrative Agent and signed by the
Borrower. Each such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:





     (1) the aggregate amount (expressed in Dollars), Class (Class A, Class C or Class D)
and currency (which must be Dollars or an Alternative Currency) of the requested Borrowing;




     (2) the date of such Borrowing, which shall be a Business Day;




     (3) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;




     (4) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and




     (5) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.06.




If no election as to the Class of any Revolving Borrowing is
specified, then the requested Revolving Borrowing shall be a Class
D Revolving Borrowing. If no election as to the









 



46



Type of any Revolving Borrowing denominated in Dollars is
specified, then the requested Revolving Borrowing shall be an ABR
Borrowing. If no currency is specified with respect to any
Revolving Borrowing, then the Borrower shall be deemed to have
requested that such Borrowing be denominated in Dollars. If no
Interest Period is specified with respect to any requested
Eurodollar Revolving Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month’s duration.
Promptly following receipt of a Borrowing Request in accordance
with this Section, the Administrative Agent shall advise each
Lender of the details thereof and of the amount of such Lender’s
Loan to be made as part of the requested Borrowing.



          (d) Swingline Loans. (A) Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to the Borrower in Dollars from time to time during
the Class D Availability Period, in an aggregate principal amount at any time outstanding that will
not result in (i) the aggregate principal amount of all outstanding Swingline Loans exceeding
$30,000,000 or (ii) the total Class D Revolving Credit Exposures exceeding the total Class D
Commitments; provided that the Swingline Lender may in its discretion decline to make any
Swingline Loan requested by the Borrower. Notwithstanding the foregoing, the Borrower shall not
request, and the Swingline Lender shall not make, any Swingline Loan if, after giving effect to the
making of such Swingline Loan, the aggregate amount of the unused Class D Commitments would be less
than zero. The Borrower may refinance all or any part of a Swingline Loan with another Swingline
Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Swingline Loans.




          (B) To request a Swingline Loan from the Swingline Lender, the Borrower shall notify the
Swingline Lender of such request by telephone (confirmed by facsimile) not later than 4:00 p.m.,
New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable
and shall specify the requested date (which shall be a Business Day) and the amount of the
requested Swingline Loan. The Swingline Lender will, prior to making such Swingline Loan available
to the Borrower, notify the Administrative Agent of such notice. The Swingline Lender shall make
each Swingline Loan to be made by it hereunder available to the Borrower by means of a credit to
the general deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section
2.05(e), by remittance to the applicable Issuing Bank) by 5:00 p.m., New York City time, on the
requested date of such Swingline Loan.




          (C) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., New York City time, on any Business Day require the Class D Lenders to acquire
participations on such Business Day in all or












 



47



a portion of its Swingline Loans outstanding. Such notice shall specify the aggregate amount
of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Class D Lender, specifying in such notice
such Class D Lender’s Applicable Class D Percentage of such Swingline Loan or Loans. Each Class D
Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to
pay to the Administrative Agent, for the account of the Swingline Lender, such Class D Lender’s
Applicable Class D Percentage of such Swingline Loan or Loans. Each Class D Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or termination of the Class D
Commitments, and that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Class D Lender shall comply with its obligation under this paragraph by
wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Class D Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Class D Lenders), and the Administrative Agent
shall promptly pay to the Swingline Lender the amounts so received by it from the Class D Lenders.
The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan
acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan
shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a
Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to the Class D Lenders
that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as
their interests may appear; provided that any such payment so remitted shall be repaid to
the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such
payment is required to be refunded to the Borrower for any reason. The purchase of participations
in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof.




          (D) The Swingline Lender may be replaced at any time by written agreement among the Borrower
and a successor Swingline Lender (with notice to the Administrative Agent and the replaced
Swingline Lender). The Administrative Agent shall notify the Class D Lenders of any such
replacement of the Swingline Lender. From and after the effective date of any such replacement,
(i) the successor Swingline Lender shall have all the rights and obligations of the previous
Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (ii)
references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to
the previous Swingline Lender, as the context shall require. On the date of the replacement of a
Swingline Lender hereunder, the Borrower shall repay all Swingline Loans made by such Swingline
Lender that are outstanding as of such date and such Swingline Lender shall not have any obligation
to make any Swingline Loans thereafter.













 



48




          (e) Letters of Credit. (A) General. Subject to the terms and conditions
set forth herein, the Borrower may request the issuance of Letters of Credit for its own account,
in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any
time and from time to time during the Class D Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms and conditions of
any form of letter of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, any Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control.




          (B) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or fax (or transmit by electronic
communication, if arrangements for doing so have been approved by the applicable Issuing Bank) to
the applicable Issuing Bank and the Administrative Agent (reasonably in advance of the requested
date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the
date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section),
the currency in which such Letter of Credit is to be denominated (which shall be Dollars or an
Alternative Currency), the amount of such Letter of Credit (expressed in the applicable currency),
the name and address of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the applicable Issuing
Bank, the Borrower also shall submit a letter of credit application on such Issuing Bank’s standard
form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect
to such issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed
$125,000,000, (ii) the total Class D Revolving Credit Exposures shall not exceed the total Class D
Commitments, (iii) the sum of the Assigned Dollar Values of the aggregate principal amount of all
outstanding Class D Revolving Loans denominated in Euro plus the total LC Exposure attributable to
Letters of Credit and LC Disbursements denominated in Euro shall not exceed the Class D Euro Limit,
(iv) the sum of the Assigned Dollar Values of the aggregate principal amount of all outstanding
Class D Revolving Loans denominated in Sterling plus the total LC Exposure attributable to Letters
of Credit and LC Disbursements denominated in Sterling shall not exceed the Class D Sterling Limit,
(v) the sum of the Assigned Dollar Values of the aggregate principal amount of all outstanding
Class D Revolving Loans denominated in Kornor plus the total LC Exposure attributable to Letters of
Credit and LC Disbursements denominated in Kronor shall not exceed the Class D Krona Limit and (vi)
the sum of the Assigned Dollar Values of the aggregate principal amount of all outstanding Class D
Revolving Loans denominated in Pesos plus the total LC Exposure attributable to Letters of Credit
and LC Disbursements denominated in Pesos shall not exceed the Class D Peso Limit.













 



49




          (C) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date that is one year after the date of the issuance of such
Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal
or extension), subject to automatic renewal provisions acceptable to the Issuing Bank, and (ii) the
date that is five Business Days prior to the Class D Maturity Date.




          (D) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
applicable Issuing Bank or the Class D Lenders, the applicable Issuing Bank hereby grants to each
Class D Lender, and each Class D Lender hereby acquires from such Issuing Bank, a participation in
such Letter of Credit equal to such Class D Lender’s Applicable Class D Percentage of the aggregate
amount available to be drawn under such Letter of Credit. In consideration and in furtherance of
the foregoing, each Class D Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of such Issuing Bank, such Class D Lender’s Applicable Class
D Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower
on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the Borrower for any reason. Each Class D Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence
and continuance of a Default or reduction or termination of the Class D Commitments, and that each
such payment shall be made without any offset, abatement, withholding or reduction whatsoever.




          (E) Reimbursement. If an Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than 12:00 noon, Local Time, on the date
that is one Business Day after such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., Local Time, on the date that such LC
Disbursement is made, or, if such notice has not been received by the Borrower prior to such time
on such date, then not later than 12:00 noon, Local Time, on (i) the next Business Day after the
Borrower receives such notice, if such notice is received prior to 10:00 a.m., Local Time, on the
day of receipt, or (ii) the second Business Day following the day that the Borrower receives such
notice, if such notice is not received prior to such time on the day of receipt; provided
that, if such LC Disbursement is not less than the applicable minimum borrowing amount set forth
herein, the Borrower may, subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 or 2.04 that such payment be financed with an ABR Revolving Borrowing
(with respect to a payment in Dollars), a Eurodollar Revolving Borrowing (with respect to a payment
in an Alternative Currency) or Swingline Loan in an equivalent amount and, to the extent so
financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing, Eurodollar Revolving Borrowing or Swingline












 



50



Loan. If the Borrower fails to make such payment when due, the Administrative Agent shall
notify each Class D Lender of the applicable LC Disbursement, the payment then due from the
Borrower in respect thereof and such Class D Lender’s Applicable Class D Percentage thereof.
Promptly following receipt of such notice, each Class D Lender shall pay to the Administrative
Agent its Applicable Class D Percentage of the payment then due from the Borrower, in the same
manner as provided in Section 2.06 with respect to Loans made by such Class D Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the Class D
Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the
amounts so received by it from the Class D Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent
that the Class D Lenders have made payments pursuant to this paragraph to reimburse such Issuing
Bank, then to such Class D Lenders and such Issuing Bank as their interests may appear. Any
payment made by a Class D Lender pursuant to this paragraph to reimburse an Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan as contemplated
above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.




          (F) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (it being understood that any such payment by the
Borrower is without prejudice to, and does not constitute a waiver of, any rights the Borrower may
have or may acquire as a result of the payment by an Issuing Bank of any draft or the reimbursement
of the Borrower thereof) (i) any lack of validity or enforceability of any Letter of Credit or this
Agreement, or any term or provision therein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, (iii) payment by an Issuing Bank under a Letter
of Credit against presentation of a draft or other document that does not comply with the terms of
such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar
to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or
equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder.
Neither the Administrative Agent, the Class D Lenders nor any Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the applicable Issuing Bank; provided that the
foregoing shall not be construed to excuse the applicable Issuing Bank from liability to the
Borrower to the extent of any direct damages (as opposed to consequential damages, claims in
respect of which are












 



51



hereby waived by the Borrower to the extent permitted by applicable law) suffered by the
Borrower that are caused by the applicable Issuing Bank’s failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful
misconduct on the part of an Issuing Bank (as finally determined by a court of competent
jurisdiction), such Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, an Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance with the terms of
such Letter of Credit.




          (G) Disbursement Procedures. The applicable Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for payment under a
Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the
Borrower by telephone (confirmed by facsimile) of such demand for payment and whether such Issuing
Bank has made or will make an LC Disbursement thereunder; provided that any failure to give
or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such
Issuing Bank and the Class D Lenders with respect to any such LC Disbursement.




          (H) Interim Interest. If any Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC
Disbursement, at (i) in the case of an LC Disbursement denominated in Dollars, the rate per annum
then applicable to Class D ABR Revolving Loans or (ii) in the case of an LC Disbursement
denominated in an Alternative Currency, the LIBO Rate (in the case of an LC Disbursement
denominated in Sterling) or EURIBO Rate (in the case of an LC Disbursement denominated in Euro)
that would apply to a Eurodollar Loan with an interest period of one day plus the Applicable Rate
with respect to Class D Eurodollar Loans; provided that, if the Borrower fails to reimburse
such LC Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.12(c) shall
apply. Interest accrued pursuant to this paragraph shall be for the account of the applicable
Issuing Bank, except that interest accrued on and after the date of payment by any Class D Lender
pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be for the account of
such Class D Lender to the extent of such payment.




          (I) Replacement or Termination of an Issuing Bank. Any Issuing Bank may be replaced
at any time by written agreement among the Borrower and the successor Issuing Bank (with notice to
the Administrative Agent and the replaced Issuing Bank). An Issuing Bank also may be terminated as
an Issuing Bank hereunder by mutual












 



52



agreement of the Borrower and such Issuing Bank and notice to the Administrative Agent, if
after giving effect to such termination there remains at least one Issuing Bank hereunder. The
Administrative Agent shall notify the Class D Lenders of any such replacement or termination of an
Issuing Bank. At the time any such replacement or termination shall become effective, the Borrower
shall pay all unpaid fees accrued for the account of the replaced or terminated Issuing Bank
pursuant to Section 2.11(b). From and after the effective date of any such replacement or
termination, (i) in the case of a replacement, the successor Issuing Bank shall have all the rights
and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be
issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to
such successor (in the case of a replacement) or to any previous Issuing Bank or to such successor
and all previous Issuing Banks, or to such terminated Issuing Bank (in the case of a termination),
as the context shall require. After the replacement or termination of an Issuing Bank hereunder,
the replaced or terminated Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit issued by it prior to such replacement, but shall not be required to issue additional
Letters of Credit.




          (J) Cash Collateralization. If any Event of Default shall occur and be continuing,
on the Business Day that the Borrower receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Class D Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent,
in the name of the Administrative Agent and for the benefit of the Class D Lenders, an amount in
cash equal to the aggregate undrawn amount of all outstanding Letters of Credit plus the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower as
of such date (in the currency in which such Letters of Credit and LC Disbursements are denominated)
plus any accrued and unpaid interest thereon; provided that the obligation to deposit such
cash collateral shall become effective immediately, and such deposit shall become immediately due
and payable, without demand or other notice of any kind, upon the occurrence of any Event of
Default with respect to the Borrower described in clause (i) or (j) of Article VII. Such deposit
shall be held by the Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account. Other than
any interest earned on the investment of such deposits in Permitted Investments, which investments
shall be made at the option and sole discretion of the Administrative Agent (provided that
the Administrative Agent shall use reasonable efforts to make such investments) such deposits shall
not bear interest. Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Administrative Agent to reimburse the
applicable Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the
Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated
(but subject to the consent of Class D Lenders with LC Exposure representing greater than












 



53



50% of the total LC Exposure), be applied to satisfy other obligations of the Borrower under
this Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount and any interest or profits thereon
(to the extent not applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Defaults have been cured or waived.




          (f) Funding of Borrowings. (A) Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00
noon, Local Time (in the case of a Eurodollar Loan) or 2:00 p.m., Local Time (in the case of an ABR
Loan), to the account of the Administrative Agent most recently designated by it for such purpose
by notice to the Lenders; provided that Swingline Loans shall be made as provided in
Section 2.04. The Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower (i) in the United
States, in the case of Loans denominated in Dollars or (ii) in London, in the case of Loans
denominated in any Alternative Currency, in each case designated by the Borrower in the applicable
Borrowing Request; provided that Revolving Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the
applicable Issuing Bank.




          (B) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to the Class and Type of Borrowing for which such Lender has not made its share
available. If such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing.




          (g) Interest Elections. (A) Each Revolving Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Eurodollar Revolving Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type (if such Borrowing is denominated
in Dollars) or to continue such Borrowing and, in the case of a Eurodollar Revolving Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which case each












 



54



such portion shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.
This Section shall not apply to Swingline Loans, which may not be converted. Notwithstanding any
other provision of this Section, the Borrower shall not be permitted to (i) change the currency or
Class of any Borrowing or (ii) convert any Alternative Currency Borrowing to an ABR Borrowing.




          (B) To make an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or facsimile to the Administrative Agent of a written Interest Election Request in a form
approved by the Administrative Agent and signed by the Borrower.




          (C) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:





     (1) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);




     (2) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (3) for any Borrowing denominated in Dollars, whether the resulting Borrowing is to be
an ABR Borrowing or a Eurodollar Borrowing; and




     (4) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.




If any such Interest Election Request requests a Eurodollar
Borrowing but does not specify an Interest Period, then the
Borrower shall be deemed to have selected an Interest Period of
one month’s duration.



          (D) Promptly following receipt of an Interest Election Request, the Administrative Agent
shall advise each participating Lender of the details thereof and of such Lender’s portion of each
resulting Borrowing.




          (E) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such












 



55



Interest Period such Borrowing shall be converted to an ABR Borrowing (unless such Borrowing
is denominated in an Alternative Currency, in which case such Borrowing shall be continued as a
Eurodollar Borrowing having an Interest Period of one month’s duration). Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so
long as an Event of Default is continuing (i) no outstanding Revolving Borrowing denominated in
Dollars may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing denominated in Dollars shall be converted to an ABR Borrowing at the end of
the Interest Period applicable thereto and (iii) unless repaid, each Eurodollar Borrowing
denominated in an Alternative Currency shall, at the end of the Interest Period applicable thereto,
be continued as a Eurodollar Borrowing having an Interest Period of one month’s duration.




          (h) Termination and Reduction of Commitments.




          (A) Unless previously terminated, (i) the Class A Commitments shall terminate on the Class A
Maturity Date, (ii) the Class C Commitments shall terminate on the Class C Maturity Date and (iii)
the Class D Commitments shall terminate on the Class D Maturity Date.




          (B) The Borrower may at any time terminate, or from time to time reduce, the Commitments of
any Class, without premium or penalty; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $500,000 and not less than $5,000,000 and
(ii) the Borrower shall not terminate or reduce the Commitments of any Class if, after giving
effect to any concurrent prepayment of the Loans in accordance with Section 2.10, the Revolving
Credit Exposures of such Class would exceed the total Commitments of such Class.




          (C) To the extent that Asset Dispositions in any fiscal year of the Parent are consummated
with respect to assets with an aggregate fair market value exceeding $200,000,000 and any Net Cash
Proceeds are received by or on behalf of the Borrower or any Subsidiary in respect of such excess
Asset Dispositions, the Commitments of the Lenders shall be reduced ratably in an aggregate amount
equal to 100% of such Net Cash Proceeds; provided that, if any Senior Secured Notes are
outstanding, the Borrower shall offer to prepay such outstanding Senior Secured Notes in an
aggregate principal amount equal to such Net Cash Proceeds as provided in the Senior Notes
Indenture and any such reduction in the Commitments pursuant to this paragraph shall be in an
amount equal to the excess of such Net Cash Proceeds over the aggregate principal amount of Senior
Secured Notes prepaid as a result of such offer.




          (D) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments of any Class under paragraph (b) of this Section at least three Business Days prior
to the effective date of such termination or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments of any Class
delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other
credit facilities,












 



56



in which case such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments of any Class shall be permanent. Except as provided in
Section 2.19(b), each reduction of the Commitments of any Class shall be made ratably among the
Lenders in accordance with their respective Commitments of such Class.




          (i) Repayment of Loans; Evidence of Debt. (A) The Borrower hereby unconditionally
promises to pay (i) to the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Class A Revolving Loan on the Class A Maturity Date, each Class C
Revolving Loan on the Class C Maturity Date and each Class D Revolving Loan on the Class D Maturity
Date and (ii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan on
the earlier of the Class D Maturity Date and the first date after such Swingline Loan is made that
is the 15th or last day of a calendar month and is at least two Business Days after such Swingline
Loan is made.




          (B) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.




          (C) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the currency, Class and Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.




          (D) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this Agreement.




          (E) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after assignment pursuant
to Section 9.04) be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).













 



57




          (j) Prepayment of Loans. (A) The Borrower shall have the right at any time and from
time to time to prepay any Borrowing in whole or in part, subject to Section 2.15 but otherwise
without premium or penalty, subject to prior notice in accordance with paragraph (d) of this
Section.




          (B) If, on any Revaluation Date for any Alternative Currency Borrowing or any Alternative
Currency Letter of Credit, the total Revolving Credit Exposures of any Class exceed 105% of the
total Commitments of such Class, the Borrower shall, on the next Interest Payment Date in respect
of such Borrowing (or, in the case of a Revaluation Date for an Alternative Currency Letter of
Credit, on the next Interest Payment Date that is at least three Business Days after such
Revaluation Date), prepay Revolving Borrowings or Swingline Loans in an aggregate amount such that,
after giving effect thereto, the total Revolving Credit Exposures of such Class do not exceed the
total Commitments of such Class.




          (C) If, as a result of any reduction in the Commitments, whether pursuant to Section 2.08(c)
or otherwise, the total Revolving Credit Exposures of any Class exceed the total Commitments of
such Class, the Borrower shall prepay Revolving Borrowings or Swingline Loans in an aggregate
amount such that, after giving effect thereto, the total Revolving Credit Exposures of such Class
do not exceed the total Commitments of such Class.




          (D) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by facsimile) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing, not later than 11:00
a.m., New York City time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New York City time, on the
date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00
noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments of any Class as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.08. Promptly following receipt of any such notice relating to a
Revolving Borrowing, the Administrative Agent shall advise the participating Lenders of the
contents thereof. Each partial prepayment of any Revolving Borrowing shall be in an amount that
would be permitted in the case of an advance of a Revolving Borrowing of the same currency and Type
as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest
to the extent required by Section 2.12.




          (k) Fees. (A) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a commitment fee, which shall accrue at the Applicable Rate, on the average
daily unused amount of the Commitment of such Lender during the period from and including the
Effective Date to but excluding the date on which such












 



58



Commitment terminates. Accrued commitment fees shall be payable in arrears on the last day of
March, June, September and December of each year and on the date on which the Commitments of the
applicable Class terminate, commencing on the first such date to occur after the date hereof. All
commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last day). For purposes
of computing commitment fees, a Commitment of any Class of a Lender shall be deemed to be used to
the extent of the outstanding Revolving Loans of such Class (based on Assigned Dollar Values, in
the case of Alternative Currency Loans) and (in the case of Class D Commitments) LC Exposure of
such Lender (and the Swingline Exposure of such Lender shall be disregarded for such purpose).




          (B) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Class
D Lender a participation fee with respect to its participations in Letters of Credit, which shall
accrue at the same Applicable Rate used to determine the interest rate applicable to Class D
Eurodollar Revolving Loans on the average daily amount of such Class D Lender’s LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Restatement Effective Date to but excluding the later of the date on which
such Lender’s Class D Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to each Issuing Bank a fronting fee, which shall accrue at the rate or rates per
annum separately agreed upon between the Borrower and such Issuing Bank on the average daily amount
of the LC Exposure attributable to Letters of Credit issued by such Issuing Bank (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period from and including
the Effective Date to but excluding the later of the date of termination of the Class D Commitments
and the date on which there ceases to be any LC Exposure, as well as such Issuing Bank’s standard
fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Participation fees and fronting fees accrued through and
including the last day of March, June, September and December of each year shall be payable on the
third Business Day following such last day, commencing on the first such date to occur after the
Restatement Effective Date; provided that all such fees shall be payable on the date on
which the Class D Commitments terminate and any such fees accruing after the date on which the
Class D Commitments terminate shall be payable on demand. Any other fees payable to an Issuing
Bank pursuant to this paragraph shall be payable within 10 days after demand. All participation
fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the last day).




          (C) The Borrower agrees to pay to each of the Administrative Agent and the Collateral Agent,
for its own account, fees payable in the amounts and at the times separately agreed upon between
the Borrower and the Administrative Agent or Collateral Agent, as the case may be.




          (D) All fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to the Collateral Agent or












 



59



applicable Issuing Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the applicable Lenders. Fees paid shall not be
refundable under any circumstances.




          (l) Interest. (A) The Loans comprising each ABR Borrowing (including each Swingline
Loan that is an ABR Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.




          (B) The Loans comprising each Eurodollar Borrowing shall bear interest (i) in the case of a
Eurodollar Revolving Borrowing denominated in Dollars or Sterling, at the Adjusted LIBO Rate for
the Interest Period in effect for such Borrowing plus the Applicable Rate, or (ii) in the case of a
Eurodollar Revolving Borrowing denominated in Euro, at the Adjusted EURIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Rate.




          (C) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans of the Class as
to which such overdue amount relates or the Class of Lender to which such overdue amount is owing
(or, if such overdue amount is not related to a particular Class, the rate applicable to Class D
ABR Loans) as provided in paragraph (a) of this Section.




          (D) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans of any Class, upon termination of the Commitments
of such Class; provided that (i) interest accrued pursuant to paragraph (c) of this Section
shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other
than a prepayment of an ABR Revolving Loan prior to the end of the Class A Availability Period,
Class C Availability Period or Class D Availability Period, as applicable), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and
(iii) in the event of any conversion of any Eurodollar Revolving Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.




          (E) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed on Revolving Borrowings denominated in Sterling and interest computed by
reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the first day but excluding
the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or Adjusted EURIBO Rate or
the EURIBO Rate shall be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.













 



60




          (m) Alternate Rate of Interest. If prior to the commencement of any Interest Period
for a Eurodollar Borrowing of any Class:





     (i) the Administrative Agent reasonably determines (which reasonable determination
shall be conclusive absent manifest error) that adequate and reasonable means do not exist
for ascertaining the Adjusted LIBO Rate or the Adjusted EURIBO Rate as applicable, for such
Interest Period; or




     (ii) the Administrative Agent is advised by a majority in interest of the Lenders of
the applicable Class that the Adjusted LIBO Rate or the Adjusted EURIBO Rate, as
applicable, for such Interest Period will not adequately and fairly reflect the cost to
such Lenders of making or maintaining their Loans included in such Borrowing for such
Interest Period;




then the Administrative Agent shall give notice thereof to the
Borrower and the Lenders by telephone or facsimile as promptly as
practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances
giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving
Borrowing to, or continuation of any Revolving Borrowing as, a
Eurodollar Borrowing of such Class shall be ineffective and such
Borrowing shall be converted to or continued on the last day of
the Interest Period applicable thereto as (A) if such Borrowing is
denominated in Dollars, an ABR Borrowing or (B) if such Borrowing
is denominated in an Alternative Currency, as a Borrowing with an
Interest Period of one month’s duration bearing interest at a rate
reasonably determined by the Administrative Agent to be the cost
to the Lenders of such Class of making or maintaining the Loans
comprising such Borrowing for such period plus the Applicable Rate
with respect to Eurodollar Loans of such Class (and such Borrowing
shall be treated as a Eurodollar Borrowing for all other purposes
of this Agreement); provided that, at the request of the
Administrative Agent or the Borrower, the Administrative Agent and
the Borrower shall enter into negotiations for a period of no more
than 30 days for the purpose of agreeing to a substitute basis for
determining the rate of interest to be applied to such Borrowing
and any substitute basis agreed upon shall be, with the consent of
the Lenders of such Class, binding on all parties to this
Agreement, (ii) if any Borrowing Request requests a Eurodollar
Revolving Borrowing of such Class denominated in Dollars, such
Borrowing shall be made as an ABR Borrowing (or such Borrowing
shall not be made









 



61



if the Borrower revokes (and in such circumstances, such Borrowing
Request may be revoked notwithstanding any other provision of this
Agreement) such Borrowing Request by telephonic notice, confirmed
promptly in writing, not later than 10:00 a.m., New York City
time, on the proposed date of such Borrowing) and (iii) if any
Borrowing Request requests a Eurodollar Revolving Borrowing of
such Class denominated in an Alternative Currency, such Borrowing
shall be made as an ABR Borrowing denominated in Dollars (or such
Borrowing shall not be made if the Borrower revokes (and in such
circumstances, such Borrowing Request may be revoked
notwithstanding any other provision of this Agreement) such
Borrowing request by telephonic notice, confirmed promptly in
writing, not later than 10:00 a.m., New York City time, on the
proposed date of such Borrowing); provided that if the
circumstances giving rise to such notice do not affect all
applicable currencies, then Revolving Borrowings of such Class in
the currencies that are not affected shall be permitted.



          (n) Increased Costs. (A) If any Change in Law (other than with respect to Taxes,
which shall be governed exclusively by Section 2.16) shall:





     (1) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate or the
Adjusted EURIBO rate, as applicable) or any Issuing Bank; or




     (2) impose on any Lender or any Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of
Credit or participation therein;




and the result of any of the foregoing shall be to increase the
cost to such Lender of making or maintaining any Eurodollar Loan
(or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or such Issuing Bank of
participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such
Lender or the Issuing Bank hereunder (whether of principal,
interest or otherwise) by an amount deemed by such Lender or
Issuing Bank to be material (excluding for purposes of this
Section 2.14 any such increased costs resulting from Taxes, as to
which Section 2.16 shall govern), then the Borrower will pay to
such Lender or such Issuing Bank, as the case









 



62



may
be, such additional amount or amounts as will compensate such
Lender or such Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.



          (B) If any Lender or Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such Lender’s or
Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if
any, as a consequence of this Agreement or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below
that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s
policies and the policies of such Lender’s or Issuing Bank’s holding company with respect to
capital adequacy) by an amount deemed by such Lender or Issuing Bank to be material, then from time
to time the Borrower will pay to such Lender or Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s
holding company for any such reduction suffered.




          (C) A certificate of a Lender or the applicable Issuing Bank setting forth the amount or
amounts necessary to compensate such Lender or Issuing Bank or its holding company, as the case may
be, as specified in paragraph (a) or (b) of this Section, together with a reasonably detailed
description of the basis therefor, and including a certification by such Lender or Issuing Bank
that its claim for such compensation has been calculated and made in the same manner as under other
credit agreements with other borrowers that are similarly situated and with respect to which the
event entitling such Lender or Issuing Bank to compensation hereunder also entitled such Lender or
Issuing Bank to compensation thereunder, shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case may be, the
amount shown as due on any such certificate within 30 days after receipt thereof.




          (D) Failure or delay on the part of any Lender or Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to
demand such compensation; provided that the Borrower shall not be required to compensate a
Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies
the Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or Issuing Bank’s intention to claim compensation therefor; provided
further that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.




          (E) For the avoidance of doubt, the amount or amounts payable by the Borrower pursuant to
this Section 2.14 shall not include any amount or amounts payable by the Borrower pursuant to
Section 2.18.













 



63




          (o) Break Funding Payments. In the event of (a) the payment of any principal of any
Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a
result of an Event of Default), (b) the conversion of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice may be revoked under Section 2.10(d) and is revoked in
accordance therewith), or (d) the assignment of any Eurodollar Loan other than on the last day of
the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section
2.19, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense
to any Lender shall be deemed to include an amount reasonably determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the principal amount of
such Loan had such event not occurred, at the Adjusted LIBO Rate (or, in the case of a Loan
denominated in Euro, the Adjusted EURIBO Rate) that would have been applicable to such Loan, for
the period from the date of such event to the last day of the then current Interest Period therefor
(or, in the case of a failure to borrow, convert or continue, for the period that would have been
the Interest Period for such Loan), over (ii) the amount of interest (as reasonably determined by
such Lender) which would accrue on such principal amount for such period at the interest rate which
such Lender would bid were it to bid, at the commencement of such period, for deposits in the
applicable currency and of a comparable amount and period from other banks in the eurocurrency
market. A certificate of any Lender setting forth any amount or amounts that such Lender is
entitled to receive pursuant to this Section, together with a reasonably detailed calculation of
such amount, shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days after
receipt thereof.




          (p) Taxes. (A) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any Indemnified Taxes;
provided that if the Borrower shall be required to deduct any Indemnified Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that after making all
required deductions for Indemnified Taxes (including any such deductions applicable to additional
sums payable under this Section 2.16(a)) the Administrative Agent, Lender or Issuing Bank (as the
case may be) receives an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable law.




          (B) In addition, and without duplication of paragraph (a) hereof, the Borrower shall timely
pay, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.













 



64




          (C) The Borrower shall indemnify the Administrative Agent, each Lender and each Issuing Bank,
within 30 days after written demand therefor, for the full amount of any Indemnified Taxes paid or
payable by the Administrative Agent, such Lender or such Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section
2.16) and any reasonable expenses (other than Excluded Taxes) arising therefrom or with respect
thereto; provided that the Administrative Agent or such Lender or Issuing Bank, as the case
may be, provides the Borrower with a written record therefor setting forth in reasonable detail the
basis and calculation of such amounts.




          (D) As soon as practicable after any payment of Indemnified Taxes by the Borrower to a
Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing such payment, to the
extent such a receipt is issued therefor, or other evidence of such payment reasonably satisfactory
to the Administrative Agent.




          (E) (1)Any Foreign Lender that is entitled to an exemption from or reduction of any Tax under
the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without withholding or at a
reduced rate.





     (2) Without limiting the generality of the foregoing, each Lender shall deliver to the
Borrower and the Administrative Agent (in such number of copies as shall be requested by
the recipient) on or prior to the date on which such Lender becomes a Lender under this
Agreement (and from time to time thereafter as required upon the expiration, obsolescence
or invalidity, upon the request of the Borrower or the Administrative Agent, but only if
such Lender is legally entitled to do so), whichever of the following is applicable:




     duly completed copies of the Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States of
America is a party;




     duly completed copies of Internal Revenue Service Form W-8ECI;




     in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the
effect that such Foreign Lender is not (A) a “bank” within the meaning of section
881(c)(3)(A) of the code, (B) a “10 percent shareholder” of the Parent within the
meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code, and (y) duly completed
copies of Internal Revenue Service Form W-8BEN;









 



65



     any Lender that is not a Foreign Lender shall deliver to the Borrower Internal
Revenue Service Form W-9 or any subsequent versions thereof or successors thereto,
properly completed and duly executed. If any Lender fails to deliver Form W-9 or
any subsequent versions thereof or successors thereto as required herein, then the
Borrower may withhold from any payment to such party an amount equivalent to the
applicable backup withholding Tax imposed by the Code, without reduction;




     to the extent a Foreign Lender is not the beneficial owner (for example, where
the Foreign Lender is a partnership or participating Lender granting a typical
participation), Internal Revenue Service Form W-8IMY, accompanied by Form W-8ECI,
W-8BEN, Form W-9, and/or other certification documents from each beneficial owner,
as applicable; provided that, if the Foreign Lender is a partnership (and not a
participating Lender) and one or more beneficial owners of such Foreign Lender are
claiming the benefits of the exemption for portfolio interest under section 881(c)
of the Code, such Foreign Lender may provide Internal Revenue Service Form W-8BEN
on behalf of each such beneficial owner; or




     any other form prescribed by applicable law as a basis for claiming exemption
from or a reduction in United States Federal withholding Tax duly completed
together with such supplementary documentation as may be prescribed by applicable
law to permit the Borrower or the Administrative Agent to determine the withholding
or deduction required to be made.




     (3) If a payment made to a Lender under any Loan Document would be subject to
withholding of U.S. Federal Tax under FATCA if such Lender were to fail to comply with the
applicable reporting requirements of FATCA, such Lender shall deliver to the Withholding
Agent, at the time or times prescribed by law and at such time or times reasonably
requested by the Withholding Agent, such documentation prescribed by applicable law and
such additional documentation reasonably requested by the Withholding Agent as may be
necessary for the Withholding Agent to comply with its obligations under FATCA, to
determine that such Lender has or has not complied with such Lender’s obligations under
FATCA and, as necessary, to determine the amount to deduct and withhold from such payment.
Notwithstanding anything to the contrary in the preceding sentence, the completion,
execution and submission of such documentation shall not be required if in the Lender’s
sole and absolute judgment such completion, execution or submission would subject such
Lender to any material unreimbursed cost or expense or would materially prejudice the legal
or commercial position of such Lender. Solely for purposes of this Section 2.16(e)(iii),
“FATCA” shall include any amendments made to FATCA after the date of this Agreement.



          (F) If the Administrative Agent or a Lender or an Issuing Bank determines, in its sole
discretion, that it has received a refund of any Taxes to which it












 



66



has been indemnified by the Borrower or with respect to which the Borrower has paid additional
amounts pursuant to this Section 2.16, it shall pay over such refund to the Borrower (but only to
the extent of indemnity payments made, or additional amounts paid, by the Borrower under this
Section 2.16 with respect to the Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent or such Lender and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such refund); provided that the
Borrower, upon the request of the Administrative Agent or such Lender or Issuing Bank, agrees to
repay the amount paid over to the Borrower (plus any penalties, interest or other reasonable
charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender
or Issuing Bank in the event the Administrative Agent or such Lender or Issuing Bank is required to
repay such refund to such Governmental Authority. This Section shall not be construed to require
the Administrative Agent or any Lender to make available its tax returns (or any other information
relating to its Taxes which it deems confidential) to the Borrower or any other Person.




          (G) Any Lender or Issuing Bank claiming any indemnity payment or additional amounts payable
pursuant to this Section 2.16 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document reasonably requested by the Borrower following
the reasonable written request by the Borrower if the making of such a filing would avoid the need
for or reduce the amount of any such indemnity payment or additional amounts that may thereafter
accrue and would not, in the sole determination of such Lender or Issuing Bank, require the
disclosure of information that the Lender or Issuing Bank reasonably considers confidential or be
otherwise disadvantageous to such Lender or Issuing Bank.




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




          (I) Each Fee Receiver hereby represents that it is a Permitted Fee Receiver and agrees to
update Internal Revenue Service Form W-9 (or its successor form) or the applicable Internal Revenue
Service Form W-8 (or its successor form) upon any change in such Fee Receiver’s circumstances or if
such form expires or becomes inaccurate or obsolete, and to promptly notify the Borrower and the
Administrative Agent if such Fee Receiver becomes legally ineligible to provide such form.




          (q) Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (A) The Borrower
shall make each payment required to be made by it hereunder (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.14, 2.15 or 2.16, or
otherwise) prior to 2:00 p.m., Local Time, on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent












 



67



(or, in the case of any amounts received in respect of a Swingline Loan, at the discretion of
the Swingline Lender), be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to the Administrative
Agent at its offices at 383 Madison Avenue, New York, New York (or, in the case of amounts payable
in an Alternative Currency, at such other office in London as the Administrative Agent shall
specify for such purpose by notice the Borrower), except payments to be made directly to an Issuing
Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to
Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder
shall be due on a day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder shall be made in
Dollars, except that (i) all payments of principal or interest in respect of any Loan (or of any
amount payable under Section 2.15 or 2.18 or, at the request of the applicable Lender, Section 2.14
or 2.16 in respect of any Loan) shall be made in the currency in which such Loan is denominated,
(ii) all payments in respect of an LC Disbursement denominated in an Alternative Currency shall be
payable in the currency in which such LC Disbursement is denominated and (iii) all fees payable in
respect of an Alternative Currency Letter of Credit shall be payable in the currency in which such
Letter of Credit is denominated.




          (B) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed
LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal and unreimbursed LC Disbursements then due to such parties.




          (C) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Revolving Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Revolving Loans and participations in LC Disbursements and Swingline
Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Revolving Loans and participations in LC Disbursements and Swingline
Loans; provided that (i) if any such participations are purchased and all or any portion of
the payment giving rise thereto is












 



68



recovered, such participations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations in LC Disbursements
to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing
and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring
a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such Lender were a
direct creditor of the Borrower in the amount of such participation.




          (D) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders or an
Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the
case may be, the amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the applicable Issuing Bank, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or
such Issuing Bank with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative Agent, at the greater
of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.




          (E) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or 9.03(c), then the Administrative Agent may, in
its discretion notwithstanding any contrary provision hereof, (i) apply any amounts thereafter
received by the Administrative Agent for the account of such Lender for the benefit of the
Administrative Agent, the Swingline Lender or the Issuing Bank to satisfy such Lender’s obligations
to it under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold
any such amounts in a segregated account as cash collateral for, and application to, any future
funding obligations of such Lender under any such Section, in the case of each of clauses (i) and
(ii) of this Section 2.17(e), in any order as determined by the Administrative Agent in its
discretion.




          (r) Additional Reserve Costs. (A) If and so long as any Lender is required to make
special deposits with the Financial Services Authority or the Bank of England or to maintain
reserve asset ratios or pay fees (other than deposits or reserves reflected in the determination of
the Adjusted LIBO Rate or Adjusted EURIBO Rate, as the case may be), in each case in respect of any
of such Lender’s Alternative Currency Loans, such Lender may require the Borrower to pay,
contemporaneously with each












 



69



payment of interest on such Loan, additional interest on such Loan at a rate per annum equal
to the Mandatory Costs Rate, as defined in (and calculated in accordance with the formula and in
the manner set forth in) Exhibit D.




          (B) If and so long as any Lender lending from a branch or office located in a Participating
Member State of the European Union that has adopted the Euro is required to comply with reserve
assets, liquidity, cash margin or other requirements imposed by the European Central Bank or the
European System of Central Banks (but excluding requirements reflected in the Statutory Reserve
Rate or the Mandatory Costs Rate) in respect of any of such Lender’s Alternative Currency Loans,
such Lender may require the Borrower to pay, contemporaneously with each payment of interest on
such Loan, additional interest on such Loan at a rate per annum determined by such Lender to be the
cost to such Lender of complying with such requirements in relation to such Loan.




          (C) Any additional interest owed pursuant to paragraph (a) or (b) above shall be determined
by the relevant Lender, which determination shall be conclusive absent manifest error, and notified
to the Borrower (with a copy to the Administrative Agent) at least five Business Days before each
date on which interest is payable for the relevant Loan, and such additional interest so notified
to the relevant Borrower by such Lender shall be payable to the Administrative Agent for the
account of such Lender on each date on which interest is payable for such Loan.




          (s) Mitigation Obligations; Replacement of Lenders. (A) If any Lender requests
compensation under Section 2.14, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16, then
such Lender shall use reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 2.14 or 2.16, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would
not, in the reasonable judgment of such Lender, otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.




          (B) If any Lender requests compensation under Section 2.14, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.16, or if any Lender becomes a Defaulting Lender or a Non-Consenting Lender,
then the Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (A) such Lender
shall have received payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from












 



70



the assignee (to the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts) and (B) in the case of any such assignment
resulting from a claim for compensation under Section 2.14 or payments required to be made pursuant
to Section 2.16, such assignment will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.




          (t) Redenomination of Sterling. (A) Each obligation of any party to this Agreement
to make a payment in Sterling shall be redenominated into Euro if the United Kingdom adopts the
Euro as its lawful currency after the date hereof, at the time of such adoption (in accordance with
the EMU Legislation). If, in relation to Sterling, the basis of accrual of interest expressed in
this Agreement in respect of Sterling shall be inconsistent with any convention or practice in the
London interbank market for the basis of accrual of interest in respect of the Euro, such expressed
basis shall be replaced by such convention or practice with effect from the date on which the
United Kingdom adopts the Euro as its lawful currency; provided that if any Borrowing
denominated in Sterling is outstanding immediately prior to such date, such replacement shall take
effect, with respect to such Borrowing, at the end of the then current Interest Period.




          (B) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent (in consultation with the Borrower) may from time to time
specify to be appropriate to reflect the adoption of the Euro by the United Kingdom.




          (u) Assigned Dollar Value. (A) With respect to each Alternative Currency Borrowing,
its “Assigned Dollar Value” shall mean the following:





     (1) the Dollar amount specified in the Borrowing Request therefor unless and until
adjusted pursuant to the following clause (ii), and




     (2) as of each Revaluation Date with respect to such Alternative Currency Borrowing,
the “Assigned Dollar Value” of such Borrowing shall be adjusted to be the Dollar Equivalent
thereof (as determined by the Administrative Agent based upon the applicable Spot Exchange
Rate, which determination shall be conclusive absent manifest error), subject to further
adjustment in accordance with this clause (ii) thereafter.



          (B) The Assigned Dollar Value of an Alternative Currency Loan shall equal the Assigned Dollar
Value of the Alternative Currency Borrowing of which such Loan is a part multiplied by the
percentage of such Borrowing represented by such Loan.




          (C) With respect to each Alternative Currency Letter of Credit, its “Assigned Dollar
Value” shall mean the following:













 



71





     (1) the Dollar Equivalent of the amount of such Alternative Currency Letter of Credit
(as determined by the Administrative Agent based on the applicable Spot Exchange Rate as of
the date such Alternative Currency Letter of Credit was issued, which determination shall
be conclusive absent manifest error), unless and until adjusted pursuant to the following
clause (ii), and




     (2) as of each Revaluation Date with respect to such Alternative Currency Letter of
Credit, the “Assigned Dollar Value” of such Letter of Credit shall be adjusted to be the
Dollar Equivalent thereof (as determined by the Administrative Agent based upon the
applicable Spot Exchange Rate as of the date that is one Business Day before such
Revaluation Date, which determination shall be conclusive absent manifest error), subject
to further adjustment in accordance with this clause (ii) thereafter.



          (D) The “Assigned Dollar Value” of an LC Disbursement in respect of an Alternative
Currency Letter of Credit shall mean the Dollar Equivalent thereof based upon the same Spot
Exchange Rate used to determine the Assigned Dollar Value of such Alternative Currency Letter of
Credit in accordance with paragraph (c) above.




          (E) The Administrative Agent shall notify the Borrower and the Lenders of any change in the
Assigned Dollar Value of any Alternative Currency Borrowing or Alternative Currency Letter of
Credit (or LC Disbursement thereunder) promptly following determination of such change.




          (v) Increase in Commitments. (A) The Borrower, by written notice to the
Administrative Agent, may request that the Class D Commitments be increased; provided that
the aggregate amount by which the Class D Commitments are increased pursuant to this Section shall
not exceed $150,000,000. Such notice shall set forth (i) the amount of the requested increase and
(ii) the date on which such increase is requested to become effective (which shall be not less than
10 Business Days or more than 60 days after the date of such notice unless otherwise agreed by the
Borrower and the Administrative Agent), and shall offer each Class D Lender the opportunity to
increase its Class D Commitment, by its Applicable Class D Percentage of the proposed increased
amount. Each such Class D Lender shall, by notice to the Borrower and the Administrative Agent
given not more than 10 days after the date of the Borrower’s notice, either agree to increase its
Class D Commitment, by all or a portion of the offered amount (each Class D Lender so agreeing
being an “Increasing Lender”) or decline to increase its Class D Commitment (and any such
Class D Lender that does not deliver such a notice within such period of 10 days shall be deemed to
have declined to increase its Class D Commitment) (each such Class D Lender so declining or deemed
to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after
the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, the
Class D Lenders shall have agreed pursuant to the preceding sentence to increase their Class D
Commitments by an aggregate amount less than the increase in the total Class D Commitments
requested by the Borrower, the Borrower may, at its expense, arrange for one or more banks or other
financial institutions (any such bank or other financial institution being called an
“Augmenting Lender”), which may include any Class D












 



72



Lender, to extend Class D Commitments or increase their existing Class D Commitments in an
aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if
not already a Class D Lender hereunder, shall be subject to the approval of the Administrative
Agent (which approval shall not be unreasonably withheld or delayed) and each Augmenting Lender
shall execute all such documentation as the Administrative Agent shall reasonably specify to
evidence its Class D Commitment and/or its status as a Class D Lender hereunder. Any increase in
the total Class D Commitments may be made in an amount which is less than the increase requested by
the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting
Lenders.




          (B) On the effective date (the “Increase Effective Date”) of any increase in the
Class D Commitments pursuant to this Section 2.22 (the “Commitment Increase”), if any Class
D Revolving Loans are outstanding, the Borrower (i) shall prepay all Class D Revolving Loans then
outstanding (including all accrued but unpaid interest thereon) and (ii) may, at its or their
option, fund such prepayment by simultaneously borrowing Class D Revolving Loans in accordance with
this Agreement, which Class D Revolving Loans shall be made by the Class D Lenders ratably in
accordance with their respective Applicable Class D Percentage (calculated after giving effect to
the Class D Commitment Increase); provided that such prepayment of Class D Revolving Loans pursuant
to this paragraph shall not be required if such Class D Commitment Increase is effected entirely by
ratably increasing the Class D Commitments of the existing Class D Lenders. The payments made
pursuant to clause (i) above in respect of each Eurodollar Loan shall be subject to Section 2.15.




          (C) Increases and new Class D Commitments created pursuant to this Section 2.22 shall become
effective on the date specified in the notice delivered by the Borrower pursuant to the first
sentence of paragraph (a) above unless otherwise agreed by the Borrower and the Administrative
Agent. A Commitment Increase shall become effective pursuant to an amendment (the “Incremental
Amendment”) to this Agreement executed by the Borrower, each Increasing Lender, each Augmenting
Lender and the Administrative Agent. The Incremental Amendment may, without the consent of any
other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be
necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower,
to effect the provisions of this Section.




          (D) Notwithstanding the foregoing, no increase in the total Class D Commitments (or in the
Class D Commitment of any Class D Lender) or addition of a new Class D Lender shall become
effective under this Section unless (i) on the effective date of such increase, the conditions set
forth in Section 4.02 shall be satisfied as though a Borrowing were being made on such date and the
Administrative Agent shall have received a certificate to that effect dated such date and executed
by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received (with
sufficient copies for each of the Class D Lenders) documents consistent with those delivered on the
Restatement Effective Date under clauses (e) and (g) of Section 6 of the Amendment and Restatement
Agreement as to the corporate power and authority of the Borrower to












 



73



borrow hereunder after giving effect to such increase (or, if such documents delivered on the
Restatement Effective Date already contemplate an increase in an amount at least equal to the
amount of such increase, stating that such documents remain in full force and effect on the date of
such increase and have not been annulled, modified, rescinded or revoked), (iii) no single Class D
Lender or Augmenting Lender shall participate in such increase in an amount exceeding $50,000,000
and (iv) no Default exists or would exist after giving effect thereto.




          (w) Defaulting Lenders. Notwithstanding any provision of this Agreement to the
contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for
so long as such Lender is a Defaulting Lender:




          (A) if any Swingline Exposure or LC Exposure exists at the time a Lender is a Defaulting
Lender, the Borrower shall within one Business Day following notice by the Administrative Agent (i)
prepay such Swingline Exposure or, if agreed by the Swingline Lender, cash collateralize the
Swingline Exposure of the Defaulting Lender on terms satisfactory to the Swingline Lender and (ii)
cash collateralize such Defaulting Lender’s LC Exposure in accordance with the procedures set forth
in Section 2.05(j) for so long as such LC Exposure is outstanding; and




          (B) the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing
Bank shall not be required to issue, amend or increase any Letter of Credit unless it is satisfied
that cash collateral will be provided by the Borrower in accordance with Section 2.23(a).




SECTION 17.




Representations and Warranties



          Each of the Parent and the Borrower represents and warrants to the Lenders that:




          (a) Organization; Powers. Each of the Parent and the Subsidiaries is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization, has
all requisite power and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, would not reasonably be expected to result in a
Material Adverse Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.




          (b) Authorization; Enforceability. The Restatement Transactions entered or to be
entered into by each Loan Party are within such Loan Party’s corporate powers and have been duly
authorized by all necessary corporate and, if required, stockholder action. This Agreement has
been duly executed and delivered by the Parent and the Borrower and constitutes, and each other
Loan Document to which any Loan Party is or is to be a party constitutes, or when executed and
delivered by such Loan Party, will












 



74



constitute, a legal, valid and binding obligation of the Parent, the Borrower and such other
Loan Party (as the case may be), enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.




          (c) Governmental Approvals; No Conflicts. The Restatement Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and effect
and except registrations and filings necessary to perfect Liens created under the Loan Documents,
(b) will not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of any Loan Party or any order of any Governmental Authority, (c) will not
violate or result in a default under any indenture, agreement or other instrument binding upon the
Parent or any Subsidiary or its assets the violation or breach of which would result in or would
reasonably be expected to result in a Material Adverse Effect, or give rise to a right thereunder
to require any payment to be made by the Parent or any Subsidiary, and (d) will not result in the
creation or imposition of any Lien on any asset of the Parent or any Subsidiary, except Liens
created under the Loan Documents.




          (d) Financial Condition; No Material Adverse Change.




          (A) The Parent has heretofore furnished to the Lenders its consolidated balance sheet and
statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended
December 31, 2010, reported on by Deloitte & Touche LLP, independent public accountants, and (ii)
as of and for the fiscal quarter and the portion of the fiscal year ended March 31, 2011, certified
by its chief financial officer. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the Parent and its
consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to
year end audit adjustments and the absence of footnotes in the case of the statements referred to
in clause (ii) above.




          (B) Since December 31, 2010, there has been no material adverse change in the business,
assets, operations or financial condition of the Parent and the Subsidiaries, taken as a whole.




          (e) Litigation and Environmental Matters. (A) There are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Parent or the Borrower, threatened against or affecting the Parent or any
Subsidiary (i) as to which there is a reasonable possibility of an adverse determination and that,
if adversely determined, would reasonably be expected, individually or in the aggregate, to result
in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve any of the
Loan Documents or the Restatement Transactions.




          (B) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect, neither the Parent nor any Subsidiary (i) has failed to












 



75



comply with any Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.




          (C) Since the date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.




          (f) Compliance with Laws and Agreements. Each of the Parent and the Subsidiaries is
in compliance with all laws, regulations and orders of any Governmental Authority applicable to it
or its property and all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate, would not reasonably
be expected to result in a Material Adverse Effect. No Default has occurred and is continuing.




          (g) Investment Company Status. Neither the Parent nor any of the Subsidiaries is an
“investment company” as defined in, or subject to regulation under, the Investment Company Act of
1940.




          (h) Taxes. Each of the Parent and the Subsidiaries has timely filed or caused to be
filed all Federal and other material Tax returns and reports required to have been filed and has
paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are
being contested in good faith by appropriate proceedings and for which the Parent or such
Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that
the failure to do so would not reasonably be expected to result in a Material Adverse Effect.




          (i) ERISA. (A) Each of the Parent and its ERISA Affiliates is in compliance in all
material respects with the applicable provisions of ERISA and the Code and the regulations and
published interpretations thereunder. No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events, could reasonably be expected to
result in a Material Adverse Effect.




          (B) Each Foreign Pension Plan is in compliance in all material respects with all requirements
of law applicable thereto and the respective requirements of the governing documents for such plan.
With respect to each Foreign Pension Plan, none of the Parent, its Affiliates or any of their
respective directors, officers, employees or agents has engaged in a transaction that could subject
the Parent or any Subsidiary, directly or indirectly, to a tax or civil penalty that could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
With respect to each Foreign Pension Plan, reserves have been established in the financial
statements furnished to Lenders in respect of any unfunded liabilities in accordance with
applicable law or, where required, in accordance with ordinary accounting practices in the
jurisdiction in which such Foreign Pension Plan is maintained. The aggregate unfunded liabilities
with respect to such Foreign Pension Plans could not reasonably be expected to result in a Material
Adverse Effect.













 



76




          (j) Disclosure. None of the reports, financial statements or other information
furnished by or on behalf of the Parent or the Borrower to the Administrative Agent or any Lender
in connection with the negotiation of the Loan Documents or delivered thereunder, taken as a whole,
contains any material misstatement of fact or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial information or any
information concerning future proposed and intended activities of the Parent and the Subsidiaries,
the Parent and the Borrower represent only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time (it being understood that such projections
and information are forward looking statements which by their nature are subject to significant
uncertainties and contingencies, many of which are beyond the Parent’s and the Borrower’s control,
and that actual results may differ, perhaps materially, from those expressed or implied in such
forward looking statements, and no assurance can be given that the projections will be realized).




          (k) Subsidiaries. Schedule 3.11 sets forth the name and jurisdiction of organization
of, and the direct or indirect ownership interest of the Parent in, each Subsidiary, and identifies
each Subsidiary that is a Subsidiary Loan Party, in each case, as of the Restatement Effective
Date.




          (l) Properties. (A) Each of the Parent and its Subsidiaries has good title to, or
valid leasehold interests in, all its real and personal property material to its business
(including its Mortgaged Properties), except for minor defects in title that do not interfere with
its ability to conduct its business as currently conducted or to utilize such properties for their
intended purposes.




          (B) Each of the Parent and its Subsidiaries owns, or is licensed to use, all Intellectual
Property material to the business of the Parent and the Subsidiaries (taken as a whole) as
presently conducted, and the use thereof by the Parent and its Subsidiaries does not infringe upon
the rights of any other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.




          (C) Schedule 3.12 sets forth the address of each real property that is owned by the Parent or
any of its Subsidiaries as of the Restatement Effective Date and, in the case of each such property
designated on such Schedule as a Mortgaged Property, the proper jurisdiction for filing of a
Mortgage in respect thereof.




          (D) As of the Restatement Effective Date, no Loan Party has received notice of, or has
knowledge of, any pending or contemplated condemnation proceeding affecting any Mortgaged Property
or any sale or disposition thereof in lieu of condemnation. Neither any Mortgaged Property nor any
interest therein is subject to any right of first refusal, option or other contractual right to
purchase such Mortgaged Property or interest therein; provided that prior to the date that
is 45 days after the Restatement Effective Date, this representation is made only to the Borrower’s
best












 



77



knowledge, and thereafter, this representation is made only to the best knowledge of the
Borrower, with respect to those Mortgaged Properties that are not Material Properties.




          (m) Collateral Matters. (A) The Collateral Agreement, upon execution and delivery
thereof by the parties thereto, will create in favor of the Collateral Agent, for the benefit of
the Secured Parties, a valid and enforceable security interest in the Collateral (as defined
therein) and (i) when the Collateral (as defined therein) constituting certificated securities (as
defined in the Uniform Commercial Code) is delivered to the Collateral Agent, together with
instruments of transfer duly endorsed in blank, the security interest created under the Collateral
Agreement will constitute a fully perfected security interest in all right, title and interest of
the pledgors thereunder in such Collateral, prior and superior in right to any other Person, and
(ii) when financing statements in appropriate form are filed in the applicable filing offices, the
security interest created under the Collateral Agreement will constitute a fully perfected security
interest in all right, title and interest of the Loan Parties in the remaining Collateral (as
defined therein) to the extent perfection can be obtained by filing Uniform Commercial Code
financing statements, prior and superior to the rights of any other Person, except for rights
secured by Liens permitted by Section 6.02.




          (B) Each Mortgage, upon execution and delivery thereof by the parties thereto, will create in
favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable security interest in all the applicable mortgagor’s right, title and interest in and to
the Mortgaged Properties subject thereto and the proceeds thereof, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law, and when the Mortgages have been filed in the jurisdictions
specified therein, the Mortgages will constitute a fully perfected security interest in all right,
title and interest of the mortgagors in the Mortgaged Properties and the proceeds thereof, prior
and superior in right to any other Person, but subject to Liens permitted by Section 6.02.




          (C) Upon the recordation of the Copyright Security Agreement with the United States Copyright
Office pursuant to 17 U.S.C. § 205 and the regulations thereunder and the filing of the financing
statements referred to in paragraph (a) of this Section, the security interest created under the
Collateral Agreement will constitute a fully perfected security interest in all right, title and
interest of the Loan Parties in the material Copyrights in which a security interest may be
perfected by filing in the United States of America, in each case prior and superior in right to
any other Person, but subject to Liens permitted by Section 6.02 (it being understood that
subsequent recordings in the United States Copyright Office may be necessary to perfect a security
interest in such Copyrights acquired by the Loan Parties after the Restatement Effective Date).




          (D) Each Security Document, other than any Security Document referred to in the preceding
paragraphs of this Section, upon execution and delivery thereof by the parties thereto and the
making of the filings and taking of the other actions provided for therein, will be effective under
applicable law to create in favor of the Collateral Agent, for the benefit of the Secured Parties,
a valid and enforceable security interest in the












 



78



Collateral subject thereto, and will constitute a fully perfected security interest in all
right, title and interest of the Loan Parties in the Collateral subject thereto, prior and superior
to the rights of any other Person, except for rights secured by Liens permitted by Section 6.02.




          (E) This Section 3.13 shall not apply during any Collateral Release Period.




SECTION 18.




Conditions



          (a) [Intentionally Omitted.]




          (b) Each Credit Event. The obligation of each Lender to make a Loan on the occasion
of any Borrowing, and of each Issuing Bank to issue, amend, renew or extend any Letter of Credit
(other than any extension or renewal of any Letter of Credit without any increase in the stated
amount of such Letter of Credit), is subject to the satisfaction of the following conditions:





     (i) The representations and warranties of the Loan Parties set forth in the Loan
Documents (except in the case of Loans made and Letters of Credit issued after the
Restatement Effective Date, the representation and warranty set forth in Section 3.04(b))
shall be true and correct in all material respects on and as of the date of such Borrowing
or the date of issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, except to the extent 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 with respect to such earlier date).




     (ii) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.




Each Borrowing and each issuance, amendment, renewal or extension
of a Letter of Credit (except those specified in the parenthetical
contained in the introductory paragraph of this Section 4.02)
shall be deemed to constitute a representation and warranty by the
Parent and the Borrower on the date thereof as to the matters
specified in paragraphs (a) and (b) of this Section.









 



79


SECTION 19.




Affirmative Covenants



          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Parent
and the Borrower covenant and agree with the Lenders that:




          (a) Financial Statements and Other Information. The Parent or the Borrower will
furnish to the Administrative Agent (and, when furnished, the Administrative Agent will promptly
furnish to the Lenders):





     (i) within 90 days after the end of each fiscal year of the Parent, its audited
consolidated balance sheet and related statements of operations, stockholders’ equity and
cash flows as of the end of and for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by independent public
accountants of recognized national standing (without a “going concern” or like
qualification or exception and without any qualification or exception as to the scope of
such audit) to the effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of the Parent and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied; provided that it is understood and agreed that the delivery of the
Parent’s Form 10-K and annual report for the applicable fiscal year shall satisfy the
requirements of this clause (a) if such materials contain the information required by this
clause (a);




     (ii) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Parent, its condensed consolidated balance sheet and related statements
of operations, stockholders’ equity and cash flows as of the end of and for such fiscal
quarter and the then elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods of (or, in the case of
the balance sheet, as of the end of) the previous fiscal year, all certified by one of its
Financial Officers as presenting fairly in all material respects the financial condition
and results of operations of the Parent and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes; provided that it is understood and agreed
that the delivery of the Parent’s Form 10-Q for the applicable fiscal quarter shall satisfy
the requirements of this clause (b) if such materials contain the information required by
this clause (b);




     (iii) concurrently with any delivery of financial statements under clause (a) or (b)
above, a certificate of a Financial Officer of the Parent (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with









 



80




respect
thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with
Section 6.09 or Section 6.10, as applicable, and Section 6.11 and (iii) stating whether any
change in GAAP or in the application thereof affecting the financial statements
accompanying such certificate in any material respect has occurred since the date of the
audited financial statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on such financial statements;




     (iv) promptly after the same become publicly available, copies of all periodic and
other reports, proxy statements and other materials filed by the Parent or any Subsidiary
with the Securities and Exchange Commission, or any Governmental Authority succeeding to
any or all of the functions of said Commission, or with any national securities exchange,
or distributed by the Parent to its shareholders generally, as the case may be;




     (v) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Parent or any Subsidiary, or
compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender
through the Administrative Agent may reasonably request; and




     (vi) promptly after the GM Access and Security Agreement has been terminated and all
Liens securing obligations thereunder have been released, notice thereof.




Any financial statement, report, proxy statement or other material
required to be delivered pursuant to clause (a), (b) or (c) of
this Section shall be deemed to have been furnished to the
Administrative Agent and each Lender on the date that the Parent
notifies the Administrative Agent that such financial statement,
report, proxy statement or other material is posted on the
Securities and Exchange Commission’s website at www.sec.gov or on
the Parent’s website at www.aam.com; provided that the
Administrative Agent will promptly inform the Lenders of any such
notification by the Parent; provided further that
the Parent will furnish paper copies of such financial statement,
report, proxy statement or material to the Administrative Agent or
any Lender that requests, by notice to the Parent, that the Parent
do so, until the Parent receives notice from the Administrative
Agent or such Lender, as applicable, to cease delivering such
paper copies.



          (b) Notices of Material Events. The Parent or the Borrower will furnish to the
Administrative Agent (and when furnished, the Administrative Agent will promptly furnish to the
Lenders) written notice of the following, promptly after any












 



81



executive officer or Financial Officer of the Parent or the Borrower obtains actual knowledge
thereof:





     (i) the occurrence of any Default;




     (ii) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Parent or any Subsidiary that
involves a reasonable possibility of an adverse determination and that, if adversely
determined, would reasonably be expected to result in a Material Adverse Effect;




     (iii) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, would result in or would reasonably be expected to result in a
Material Adverse Effect; and




     (iv) any other development that would result in or would reasonably be expected to
result in a Material Adverse Effect.




Each notice delivered under this Section shall be accompanied by a
statement of a Financial Officer or other executive officer of the
Parent or the Borrower setting forth the details of the event or
development requiring such notice and any action taken or proposed
to be taken with respect thereto.



          (c) Existence; Conduct of Business. The Parent and the Borrower will, and will cause
each of the other Subsidiaries to, do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence and the rights, licenses, permits, privileges
and franchises material to the conduct of its business; provided that (i) the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section
6.03 and (ii) neither the Parent nor any of its Subsidiaries shall be required to preserve any
rights, licenses, permits or franchises, if the Parent or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of its business and if the loss thereof
would not have and would not reasonably be expected to have a Material Adverse Affect.




          (d) Payment of Obligations. The Parent and the Borrower will, and will cause each of
the other Subsidiaries to, pay its obligations, including Tax liabilities (but excluding
Indebtedness), that, if not paid, would reasonably be expected to result in a Material Adverse
Effect before the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings and (b) the Parent, the
Borrower or such other Subsidiary has set aside on its books adequate reserves with respect thereto
in accordance with GAAP.




          (e) Maintenance of Properties; Insurance. The Parent and the Borrower will, and will
cause each of the other Subsidiaries to, (a) keep and maintain all property material to the conduct
of its business in good working order and condition, ordinary












 



82



wear and tear excepted, and (b) maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are reasonable and prudent, as well
as such insurance as is required by any Security Document.




          (f) Books and Records; Inspection Rights. The Parent and the Borrower will, and will
cause each of the other Subsidiaries to, keep proper financial books of record and account in which
full, true and correct entries are made of all financial dealings and transactions in relation to
its business and activities in order to produce its financial statements in accordance with GAAP.
The Parent and the Borrower will, and will cause each of the other Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice
and at the applicable Lender’s expense, to visit and inspect its properties, to examine and make
extracts from its books and records, and to discuss its affairs, finances and condition with its
officers and independent accountants, all at such reasonable times during normal business hours and
as often as reasonably requested (subject to reasonable requirements of confidentiality, including
requirements imposed by law or contract).




          (g) Compliance with Laws. The Parent and the Borrower will, and will cause each of
the other Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do so, individually or in
the aggregate, would not reasonably be expected to result in a Material Adverse Effect.




          (h) Use of Proceeds and Letters of Credit. The proceeds of the Loans will be used
for general corporate purposes, including to refinance Indebtedness under the Existing Credit
Agreement. No part of the proceeds of any Loan will be used, whether directly or indirectly, for
any purpose that entails a violation of any of the Regulations of the Board, including Regulations
T, U and X. Letters of Credit will be issued only to support obligations of the Parent and
Subsidiaries incurred in the ordinary course of business.




          (i) Additional Subsidiary Loan Parties. If any Subsidiary Loan Party is formed or
otherwise acquired after the date hereof or any Subsidiary that is not a Subsidiary Loan Party
subsequently becomes a Subsidiary Loan Party, then, in each case, within 10 Business Days
thereafter the Parent or the Borrower shall notify the Administrative Agent thereof and cause such
Subsidiary to (i) execute a supplement to the Guarantee Agreement (substantially in the form
provided as an annex thereto or otherwise in form and substance reasonably satisfactory to the
Administrative Agent) in order to become a Guarantor and (ii) satisfy the Collateral Requirement;
provided however that clause (ii) of this Section shall not apply during any
Collateral Release Period.




          (j) Information Regarding Collateral. (A) The Parent or the Borrower will furnish
to the Collateral Agent prompt written notice of any change (i) in the legal name of any Loan
Party, as set forth in its organizational documents, (ii) in the jurisdiction of organization or
the form of organization of any Loan Party (including as a result of any merger or consolidation),
or (iii) in the organizational identification number,












 



83



if any, or, with respect to any Loan Party organized under the laws of a jurisdiction that
requires such information to be set forth on the face of a Uniform Commercial Code financing
statement, the Federal Taxpayer Identification Number of such Loan Party. The Parent and the
Borrower agree not to effect or permit any change referred to in the preceding sentence unless all
filings have been made under the Uniform Commercial Code or otherwise that are required in order
for the Collateral Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral.




          (B) Each year, at the time of delivery of annual financial statements with respect to the
preceding fiscal year pursuant to clause (a) of Section 5.01, the Parent or the Borrower shall
deliver to the Administrative Agent a certificate of a Financial Officer attaching a Perfection
Schedule setting forth any changes, including all additions, in the information required pursuant
to the Perfection Schedule (other than Sections 2-6 thereof) or confirming that there has been no
change in such information since the Perfection Schedule included in the Collateral Agreement on
the Restatement Effective Date or the date of the most recent certificate delivered pursuant to
this Section.




          (C) The Borrower (i) will furnish to the Collateral Agent and the Administrative Agent prompt
written notice of any casualty or other insured damage to any material portion of any Collateral or
the commencement of any action or proceeding for the taking of any Collateral or any part thereof
or interest therein under power of eminent domain or by condemnation or similar proceeding and (ii)
will ensure that the net proceeds of any such event (whether in the form of insurance proceeds,
condemnation awards or otherwise) are collected and applied in accordance with the applicable
provisions of the Security Documents.




          (D) This Section 5.10 shall not apply during any Collateral Release Period.




          (k) Further Assurances. (A) Each of the Parent and the Borrower will, and will
cause each Subsidiary Loan Party to, execute any and all further documents, financing statements,
agreements and instruments, and take all such further actions (including the filing and recording
of financing statements, fixture filings, mortgages, deeds of trust and other documents), which may
be required under any applicable law, or which the Administrative Agent or the Required Lenders may
reasonably request, to cause the Collateral Requirement to be and remain satisfied at all times or
otherwise to effectuate the provisions of the Loan Documents, all at the expense of the Loan
Parties.




          (B) If any material assets (including any real property or improvements thereto or any
interest therein having an aggregate fair market value or purchase price exceeding $25,000,000,
other than leasehold interests in real property not owned by the Parent or a Subsidiary) are
acquired by any Loan Party after the Restatement Effective Date (other than assets constituting
Collateral under the Collateral Agreement that become subject to the Lien of the Collateral
Agreement upon acquisition thereof), the Borrower will notify the Administrative Agent and the
Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Parent
and the Borrower will












 



84



cause such assets to be subjected to a Lien securing the Secured Obligations (in the same
manner as Collateral under the Collateral Agreement secures the Secured Obligations) and will take,
and cause the Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably
requested by the Administrative Agent to cause the Collateral Requirement to be satisfied with
respect to such assets, including actions described in paragraph (a) of this Section, all at the
expense of the Loan Parties.




          (C) This Section 5.11 shall not apply during any Collateral Release Period.




SECTION 20.




Negative Covenants



          Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired
or terminated and all LC Disbursements shall have been reimbursed, the Parent and the Borrower
covenant and agree with the Lenders that:




          (a) Indebtedness; Disqualified Equity Interests. (a) The Parent and the Borrower
will not, and will not permit any other Subsidiary to, create, incur, assume or permit to exist any
Indebtedness, including pursuant to any Guarantee of Indebtedness of the Parent or another
Subsidiary, except:





     (1) Indebtedness owing to the Parent or another Subsidiary, if also permitted by
Section 6.04;




     (2) Guarantees of Indebtedness of the Parent or a Subsidiary, if also permitted by
Section 6.04;




     (3) Indebtedness under the Loan Documents;




     (4) (A) the Senior Secured Notes, (B) Existing Debt Securities outstanding on the
Restatement Effective Date, and any Permitted Refinancing Indebtedness incurred to
refinance any such Indebtedness, and (C) other Indebtedness existing as of the Restatement
Effective Date and set forth on Schedule 6.01 hereto;




     (5) Priority Indebtedness (other than Indebtedness of Foreign Subsidiaries and
Indebtedness otherwise permitted under this Section 6.01); provided that (A) the
aggregate principal amount of Indebtedness permitted by this clause shall not exceed
$75,000,000 at any time outstanding and (B) not more than $50,000,000 of the aggregate
principal amount of such Indebtedness (other than Receivables Financing Debt and any
Indebtedness secured by Liens permitted by clause (e) of Section 6.02) shall be secured by
Liens; provided further that, the limitation in each of clause (A) and
clause (B) above may be exceeded if, at the time any such Indebtedness is incurred (or
results from a Permitted Acquisition) in excess of









 



85



such limitation (both before and after giving effect to such incurrence and
application of the proceeds thereof), no Default shall exist or shall result therefrom and
the Net Priority Leverage Ratio or the Total Net Leverage Ratio, as applicable, shall not
exceed (i) the ratio required to be in compliance with Section 6.09 or Section 6.10, as
applicable at such time, as of the last day of the most recent fiscal quarter ended prior
to such date of incurrence for which financial statements are available, less (ii) 0.25;




     (6) other unsecured Indebtedness that is not Priority Indebtedness; provided
that the aggregate principal amount of Indebtedness permitted by this clause shall not
exceed $250,000,000 at any time outstanding; provided further that such
limitation may be exceeded if, at the time any such Indebtedness is incurred (or results
from a Permitted Acquisition) in excess of such limitation (both before and after giving
effect to such incurrence and the application of the proceeds thereof), no Default shall
exist or shall result therefrom and the Total Net Leverage Ratio shall not exceed 3.50 to
1.00;




     (7) other Indebtedness of any Foreign Subsidiary and Receivables Financing Debt
attributable to Receivables of any Foreign Subsidiary; provided that the aggregate
principal amount of Indebtedness permitted by this clause (other than Indebtedness owing by
a Foreign Subsidiary to another Foreign Subsidiary) shall not exceed $250,000,000 at any
time outstanding; provided further that such limitation may be exceeded if,
at the time any such Indebtedness is incurred (or results from results from a Permitted
Acquisition) in excess of such limitation (both before and after giving effect to such
incurrence) no Default shall exist or shall result therefrom and the Net Priority Leverage
Ratio or the Total Net Leverage Ratio, as applicable, shall not exceed (i) the ratio
required to be in compliance with Section 6.09 or Section 6.10, as applicable at such time,
as of the last day of the most recent fiscal quarter ended prior to such date of incurrence
for which financial statements are available, less (ii) 0.25;




     (8) Permitted Second Lien Indebtedness; provided that the aggregate principal
amount of Indebtedness permitted by this clause shall not exceed $200,000,000 at any time
outstanding and that no Default shall exist at the time any such Indebtedness is incurred
or shall result therefrom; provided further that Permitted Second Lien
Indebtedness shall not be permitted during a Collateral Release Period unless such
Permitted Second Lien Indebtedness is unsecured; and




     (9) Receivables Financing Debt attributable to any Permitted Receivables Financing;
provided that the aggregate principal amount of Indebtedness permitted by this
clause shall not exceed $50,000,000 at any time outstanding and that no Default shall exist
at the time any such Indebtedness is incurred or shall result therefrom.



          (B) None of the Parent, the Borrower or any other Subsidiary will issue any Disqualified
Equity Interests, other than any such issuance by a Subsidiary to the












 



86



Parent or another Subsidiary (except by a Subsidiary that is not a Loan Party to a Loan Party)
otherwise permitted by this Agreement.




          (b) Liens. The Parent and the Borrower will not, and will not permit any other
Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned
or hereafter acquired by it, or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, except:





     (i) Liens created under the Loan Documents;




     (ii) Permitted Encumbrances;




     (iii) any Lien on any property or asset of the Parent or any Subsidiary existing on
the Restatement Effective Date (other than Liens of the type permitted under clause (g) of
this Section) and set forth in Schedule 6.02; provided that (i) such Lien shall not
apply to any other property or asset of the Parent or any Subsidiary and (ii) such Lien
shall secure only those obligations which it secures on the Restatement Effective Date and
extensions, renewals and replacements thereof that do not increase the outstanding
principal amount thereof;




     (iv) any Lien existing on any property or asset prior to the acquisition thereof by
the Parent or any Subsidiary or existing on any property or asset of any Person that
becomes a Subsidiary after the Restatement Effective Date prior to the time such Person
becomes a Subsidiary; provided that (i) such Lien is not created in contemplation
of or in connection with such acquisition or such Person becoming a Subsidiary, as the case
may be, (ii) such Lien shall not apply to any other property or assets of the Parent or any
Subsidiary, (iii) such Lien shall secure only those obligations which it secures on the
date of such acquisition or the date such Person becomes a Subsidiary, as the case may be,
and extensions, renewals and replacements thereof that do not increase the outstanding
principal amount thereof and (iv) if such Lien secures Indebtedness, such Indebtedness is
permitted by Section 6.01 and the aggregate principal amount of all Indebtedness secured by
Liens permitted by this clause (d) does not exceed $50,000,000;




     (v) Liens on fixed or capital assets acquired, constructed or improved by the Parent
or any Subsidiary on or after the Restatement Effective Date; provided that (i)
such Liens secure Indebtedness incurred to finance the acquisition, construction or
improvement of such fixed or capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such assets or secured by a
Lien on any such assets prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding principal amount
thereof, (ii) such Liens and the Indebtedness secured thereby are incurred prior to or
within 360 days after such acquisition or the completion of such construction or
improvement, (iii) the Indebtedness secured thereby is permitted by Section 6.01 and does
not exceed the cost of acquiring, constructing or improving such fixed or capital assets,
and (iv) such Liens shall not apply to any other property or assets of









 



87



the Parent or any Subsidiary (other than to accessions to such fixed or capital assets
and provided that individual financings of equipment provided by a single lender may be
cross-collateralized to other financings of equipment provided solely by such lender);




     (vi) any other Lien on any property or asset of any Foreign Subsidiary;
provided that (i) such Lien secures Indebtedness or other obligations of such
Subsidiary that is not Guaranteed by any Loan Party and (ii) with respect to Indebtedness
such Indebtedness is permitted by Section 6.01;




     (vii) Liens comprising easements, rights of way or other encumbrances on title to real
property that do not render title to the property encumbered thereby unmarketable or do not
materially interfere with the ordinary conduct of business of the Parent or any Subsidiary;




     (viii) assignments and sales of Receivables and Related Security pursuant to a
Permitted Receivables Financing and Liens arising pursuant to a Permitted Receivables
Financing on Receivables and Related Security sold or financed in connection with such
Permitted Receivables Financing; provided that the related Receivables Financing
Debt is permitted by Section 6.01;




     (ix) any other Lien securing Indebtedness or other obligations of any Loan Party;
provided that (i) such Lien secures Indebtedness permitted by clause (v) of Section
6.01(a) or other obligations to the extent such obligations do not exceed, when taken
together with Indebtedness permitted under Section 6.01(a)(v)(B), $50,000,000 and (ii) such
Lien shall not attach to Restricted Property and, if any such Lien attaches to Collateral,
such Lien shall be junior to the Liens granted pursuant to the Loan Documents;




     (x) any purchase option, call or similar right of a third party that owns Equity
Interests in a NWO Subsidiary with respect to any Equity Interests in such NWO Subsidiary
that are customary among parties to a joint venture;




     (xi) Liens securing Permitted Second Lien Indebtedness; provided that such
Liens attach only to the Collateral and are subject to a Second Lien Intercreditor
Agreement; provided further that such Liens shall not be permitted during a
Collateral Release Period; and




     (xii) Liens created pursuant to the GM Access and Security Agreement.



          (c) Fundamental Changes. (A) The Parent and the Borrower will not, and will not
permit any other Subsidiary to, merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of
(in one transaction or in a series of transactions) all or substantially all of the assets of the
Parent and the Subsidiaries, taken as a whole, or liquidate or dissolve, except that, if at the
time thereof and immediately after giving effect thereto no Default shall have occurred and be
continuing (i) any Person (other than the












 



88



Borrower) may merge into the Parent in a transaction in which the Parent is the surviving
corporation, (ii) any Person may merge into any Subsidiary in a transaction in which the surviving
entity is a Subsidiary and, if a Loan Party is a party to such merger, then the surviving entity is
a Loan Party, (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to
another Subsidiary and (iv) any Subsidiary (other than the Borrower or a Guarantor (except for
International Holdco to the extent described below)) may liquidate or dissolve if the Parent
determines in good faith that such liquidation or dissolution is in the best interests of the
Parent and is not materially disadvantageous to the Lenders; provided that any such merger
involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not
be permitted unless also permitted by Section 6.04.




          (B) The Parent will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any line of business other than lines of business conducted by the Parent and
its Subsidiaries on the Restatement Effective Date and lines of business reasonably related or
incidental thereto.




          (C) International Holdco will not engage in any business or activity other than the ownership
of Equity Interests and other investments in Foreign Subsidiaries and activities incidental
thereto. International Holdco will not own or acquire any assets (other than Equity Interests and
other investments in Foreign Subsidiaries, cash and Permitted Investments) or incur any liabilities
(other than liabilities under the Loan Documents, liabilities imposed by law, including Tax
liabilities, and other liabilities incidental to its existence and permitted business and
activities). International Holdco will not sell, transfer or otherwise dispose of any of the
Equity Interests or other investments in the Foreign Subsidiaries located in China or India to the
Parent or any other Subsidiary; provided that International Holdco may transfer such Equity
Interests to any wholly-owned Foreign Subsidiary of International Holdco but, in such event, all
such Equity Interests shall remain owned by International Holdco or a wholly-owned Foreign
Subsidiary of International Holdco unless and until sold or otherwise disposed of to a Person other
than the Parent or a Subsidiary in compliance with this Agreement; provided further
that International Holdco may dissolve or liquidate into the Borrower or any other Loan Party the
assets of which at such time do not consist only of Equity Interests in Foreign Subsidiaries.




          (d) Investments, Loans, Advances, Guarantees and Acquisitions. The Parent and
Borrower will not, and will not permit any of the other Subsidiaries (other than a Receivables
Subsidiary) to, purchase, hold or acquire (including pursuant to any merger with any Person that
was not a wholly owned Subsidiary prior to such merger) any Equity Interests, evidences of
indebtedness or other securities (including any option, warrant or other right to acquire any of
the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of,
or make or permit to exist any investment or any other interest in, any other Person, or purchase
or otherwise acquire (in one transaction or a series of transactions) any assets of any other
Person constituting a business unit, except:





     (i) cash and Permitted Investments;









 



89



     (ii) investments existing on the Restatement Effective Date and set forth on Schedule
6.04A plus (x) any additional investments in the Persons identified on such Schedule that,
as of the Restatement Effective Date, are required by contract or law to be made after the
Restatement Effective Date and (y) other investments that may be required to be made in
such Persons after the Restatement Effective Date either by contract or law;
provided that the aggregate amount of investments permitted by clauses (x) and (y)
shall not exceed $10,000,000;




     (iii) investments by the Parent, the Borrower and the other Subsidiaries in Equity
Interests in their respective Subsidiaries, and by any Foreign Subsidiary in Equity
Interests in any other Foreign Subsidiary; provided that (i) the Subsidiary in
which such investment is made is a Subsidiary before such investment is made, or such
investment is made in connection with the formation of such Subsidiary and (ii) the
aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties
to, and Guarantees (other than Excluded Guarantees) by Loan Parties of Indebtedness and
other obligations of, Subsidiaries that are not Loan Parties (excluding, without
duplication, all such investments, loans or advances existing on the Restatement Effective
Date) shall not exceed $250,000,000 at any time outstanding (disregarding any write-down or
write-off of any such loan, advance or other investment);




     (iv) loans or advances made by the Parent to any Subsidiary and made by any Subsidiary
to the Parent or any other Subsidiary; provided that the amount of such loans and
advances made by Loan Parties to Subsidiaries that are not Loan Parties shall be subject to
the limitation set forth in clause (c) above;




     (v) Guarantees by the Parent of obligations of any Subsidiary and Guarantees by any
Subsidiary of obligations of the Parent or any other Subsidiary; provided that (i)
a Subsidiary that is not a Loan Party shall not Guarantee any obligations of any Loan Party
and (ii) the aggregate amount of Indebtedness and other obligations of Subsidiaries that
are not Loan Parties that is guaranteed by any Loan Party shall be subject to the
limitation set forth in clause (c) above;




     (vi) loans and advances to employees in the ordinary course of business of the Parent
and the Subsidiaries as presently conducted in an aggregate amount not to exceed
$10,000,000 at any time outstanding (disregarding any write-down or write-off thereof):




     (vii) Permitted Acquisitions;




     (viii) investments received in connection with the bankruptcy or reorganization of, or
settlement of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business;




     (ix) investments and Guarantees described on Schedule 6.04B;









 



90



     (x) investments, Guarantees, loans and advances made amongst and between Foreign
Subsidiaries;




     (xi) promissory notes and other non-cash consideration received in connection with
dispositions of assets;




     (xii) Permitted Joint Ventures;




     (xiii) investments in the ordinary course of business consisting of endorsements for
collection or deposit and customary trade arrangements with customers consistent with past
practices; and




     (xiv) other investments, loans, advances, acquisitions and Guarantees;
provided that (i) at the time any such investment, loan, advance, acquisition or
Guarantee is made, and immediately after giving effect thereto, no Default shall have
occurred and be continuing and (ii) the aggregate amount of all such investments, loans,
advances, acquisitions and Guarantees outstanding at any time (disregarding any write-down
or write-off thereof) shall not exceed $75,000,000.



          (e) Transactions with Affiliates. The Parent and the Borrower will not, and will not
permit any of the other Subsidiaries to, sell, lease or otherwise transfer any property or assets
to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, except (a) at prices and on terms and conditions
not less favorable to the Parent, the Borrower or such Subsidiary than could be obtained on an
arm’s-length basis from unrelated third parties, (b) transactions between or among the Loan Parties
not involving any other Affiliate or between or among Foreign Subsidiaries not involving any other
Affiliate, (c) transactions between a Loan Party and a Foreign Subsidiary, provided that, to the
extent that such transaction is not in the ordinary course of business (based upon past practices
and customary industry practices) and is at prices and on terms less favorable to such Loan Party
than could be obtained on an arm’s length basis from an unrelated third party, the excess value
conferred by such Loan Party on such Foreign Subsidiary as a result thereof shall be treated as an
investment in such Foreign Subsidiary for purposes of determining compliance with Section 6.04, (d)
advances to employees permitted by Section 6.04, (e) any Restricted Payments permitted by Section
6.07, (f) fees, compensation and other benefits paid to, and customary indemnity and reimbursement
provided on behalf of, officers, directors and employees of any Loan Party in the ordinary course
of business consistent with past practices and/or industry practices, (g) any employment agreement
entered into by the Parent or any of the Subsidiaries in the ordinary course of business, (h) any
Permitted Receivables Financing, (i) transactions and agreements in existence on the Restatement
Effective Date and listed on Schedule 6.05 and, in each case, any amendment thereto that is not
disadvantageous to the Lenders in any material respect, (j) transactions described in Schedule
6.04B and (k) transactions among the Parent, any Loan Party and any of the Subsidiaries, permitted
by Section 6.03(a) (other than clause (iii) thereof, except transactions solely between Loan
Parties or solely between Foreign Subsidiaries).













 



91




          (f) Restrictive Agreements. The Parent and the Borrower will not, and will not
permit any other Subsidiary (other than a Receivables Subsidiary) to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of any Loan Party to create, incur or permit to exist
any Lien upon any of its property or assets to secure any of the Secured Obligations or any
refinancing or replacement thereof, or (b) the ability of any Subsidiary (other than the Borrower)
to pay dividends or other distributions with respect to any of its Equity Interests or to make or
repay loans or advances to the Parent or any other Loan Party or to Guarantee Indebtedness of the
Parent or any other Loan Party; provided, that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or any Loan Document, (ii) the foregoing shall not apply
to restrictions and conditions existing on the Restatement Effective Date in the Senior Secured
Notes Indenture, the GM Access and Security Agreement or in the Existing Senior Notes Indentures or
identified on Schedule 6.06 or to any extension or renewal thereof, or any amendment or
modification thereto that does not expand the scope of any such restriction or condition, (iii) the
foregoing shall not apply to customary restrictions and conditions contained in agreements relating
to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only
to the Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any agreement relating to (A)
secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to
the property or assets securing such Indebtedness or (B) Receivables sold pursuant to any Permitted
Receivables Financing and (v) clause (a) of the foregoing shall not apply to customary provisions
in leases and other contracts restricting the assignment thereof.




          (g) Restricted Payments; Certain Payments of Indebtedness. (A) Neither the Parent
nor the Borrower will, nor will they permit any Subsidiary to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except (i) the Parent may declare and pay dividends with respect to its Equity
Interests payable solely in additional shares of its Equity Interests permitted hereunder, (ii) any
Subsidiary may declare and pay dividends or make other distributions with respect to its Equity
Interests, ratably to the holders of such Equity Interests, (iii) the Parent may repurchase its
Equity Interests upon the exercise of stock options if such Equity Interests represent a portion of
the exercise price of such options, (iv) the Parent may make cash payments in lieu of the issuance
of fractional shares representing insignificant interests in the Parent in connection with the
exercise of warrants, options or other securities convertible into or exchangeable for Equity
Interests in the Parent, (v) the Parent or the Borrower may, in the ordinary course of business and
consistent with past practices, repurchase, retire or otherwise acquire for value Equity Interests
(including any restricted stock or restricted stock units) held by any present, future or former
employee, director, officer or consultant (or any Affiliate, spouse, former spouse, other immediate
family member, successor, executor, administrator, heir, legatee or distributee of any of the
foregoing) of the Parent or any of its Subsidiaries pursuant to any employee, management or
director benefit plan or any agreement (including any stock subscription or shareholder agreement)
with any employee, director, officer or consultant of the Parent or any Subsidiary, (vi) the












 



92



Borrower may make Restricted Payments to the Parent the proceeds of which shall be used to pay
customary salary, bonus and other benefits payable to officers and (vii) the Parent may make other
Restricted Payments in cash if at the time thereof and after giving effect thereto (A) no Default
shall have occurred and be continuing and (B) the aggregate amount of all such Restricted Payments
made after the Restatement Effective Date shall not exceed the sum of (1) $75,000,000, plus (2) if
positive, the Cumulative Income Amount.




          (B) Neither the Parent nor the Borrower will, nor will they permit any Subsidiary to, make or
agree to pay or make, directly or indirectly, any voluntary payment or other distribution (whether
in cash, securities or other property) of or in respect of any Restricted Debt, or any payment or
other distribution (whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any Restricted Debt, except:





     (1) any refinancing of Restricted Debt with Permitted Refinancing Indebtedness;




     (2) any purchase, redemption or termination of any Existing Convertible Notes; and




     (3) regularly scheduled payments of principal or interest.



          (h) Amendment of Material Documents. Neither the Parent nor the Borrower will, nor
will they permit any Subsidiary to, amend, modify or waive any of its rights under any GM Documents
or any agreements or instruments governing or evidencing any Restricted Debt in a manner that would
be adverse in any material respect to the interests of the Lenders.




          (i) Net Priority Leverage Ratio. The Parent will not permit the Net Priority
Leverage Ratio as of the end of any fiscal quarter set forth below to exceed the ratio set forth
below with respect to such fiscal quarter; provided that this Section 6.09 shall not apply
during a Collateral Release Period:




	 	 	 	 	 
	Fiscal Quarter End	 	Net Priority Leverage
	Date	 	Ratio
	June 30, 2011
	 	 	2.75:1.00	 
	September 30, 2011
	 	 	2.75:1.00	 
	December 31, 2011
	 	 	2.75:1.00	 
	March 31, 2012
	 	 	2.75:1.00	 
	June 30, 2012
	 	 	2.75:1.00	 












 



93


	 	 	 	 	 
	Fiscal Quarter End	 	Net Priority Leverage
	Date	 	Ratio
	September 30, 2012
	 	 	2.75:1.00	 
	December 31, 2012
	 	 	2.75:1.00	 
	March 31, 2013
	 	 	2.50:1.00	 
	June 30, 2013
	 	 	2.50:1.00	 
	September 30, 2013
	 	 	2.50:1.00	 
	December 31, 2013
	 	 	2.50:1.00	 
	March 31, 2014
	 	 	2.25:1.00	 
	June 30, 2014
	 	 	2.25:1.00	 
	September 30 2014
	 	 	2.25:1.00	 
	December 31, 2014
	 	 	2.25:1.00	 
	March 31, 2015
	 	 	2.00:1.00	 
	(and thereafter)
	 	 	 	 






          (j) Total Net Leverage Ratio. The Parent will not permit the Total Net Leverage
Ratio as of the end of any fiscal quarter during any Collateral Release Period to exceed 2.75 to
1.00.




          (k) Cash Interest Expense Coverage Ratio. The Parent will not permit the Cash
Interest Expense Coverage Ratio for any period of four consecutive fiscal quarters to be less than
2.00 to 1.00.




          (l) Lien Basket Amount. The Parent and the Borrower will not, and will not permit
any other Subsidiary to, create, incur, assume or permit to exist any Indebtedness secured by a
Lien (other than the Secured Obligations and, subject to any Second Lien Intercreditor Agreement,
any Permitted Second Lien Indebtedness) on any Restricted Property that would utilize any of the
Lien Basket Amount under the Existing Senior Notes Indentures (that permits Liens on Restricted
Property without equally and ratably securing the Existing Senior Notes).




          (m) Certain Asset Sales. If any “asset sale” is made by the Parent or any Subsidiary
that, pursuant to the terms of any outstanding Disqualified Equity Interest or Restricted Debt of
the Parent or any Subsidiary, would require, or would give the holders thereof the right to
require, the prepayment, redemption or repurchase thereof except to












 



94



the extent that the net proceeds of such “asset sale” are reinvested or applied to repay
Indebtedness or specified categories of Indebtedness and/or reduce lending commitments in respect
thereof, then the Parent or applicable Subsidiary shall either make such reinvestment or repayment
and/or reduction of lending commitments (in compliance with this Agreement) as necessary so that
such redemption, repurchase or prepayment shall not be required.




SECTION 21.




Events of Default



          If any of the following events (“Events of Default”) shall occur:





     (i) the Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;




     (ii) the Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article) payable under this
Agreement or any other Loan Document, when and as the same shall become due and payable,
and such failure shall continue unremedied for a period of five Business Days;




     (iii) any representation or warranty made or deemed made by or on behalf of any Loan
Party in or in connection with any Loan Document or any amendment or modification thereof
or waiver thereunder, or in any report, certificate or financial statement furnished
pursuant to or in connection with any Loan Document or any amendment or modification
thereof or waiver thereunder, shall prove to have been incorrect in any material respect
when made or deemed made;




     (iv) the Parent or the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in clause (a) of Section 5.02 or in Section 5.03 (with
respect to the existence of the Parent or the Borrower) or 5.08 or in Article VI (other
than Section 6.05);




     (v) any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in any Loan Document (other than those specified in clause (a), (b) or
(d) of this Article), and such failure shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent to the Borrower (which notice will be
given at the request of any Lender);




     (vi) the Parent or any Subsidiary shall fail to make any payment of principal,
interest or premium (regardless of amount) in respect of any Material Indebtedness when and
as the same shall become due and payable, and such









 



95



failure shall continue after the expiration of the grace period (if any) for such
failure specified in the agreement or instrument governing such Material Indebtedness;




     (vii) [INTENTIONALLY OMITTED];




     (viii) the Parent or any Subsidiary shall fail to observe or perform any term,
covenant, condition or agreement (other than the failure to pay principal, interest or
premiums) contained in any agreement or instrument evidencing or governing any Material
Indebtedness, and such failure shall continue after the expiration of the grace period (if
any) for such failure specified in the agreement or instrument governing such Material
Indebtedness, if such failure enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity; provided that this clause (h) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;




     (ix) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) liquidation, reorganization or other
relief in respect of the Parent or any Subsidiary (other than an Excluded Subsidiary) or
its debts, or of a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Parent or any Subsidiary (other than an Excluded Subsidiary) or for a
substantial part of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;




     (x) the Parent or any Subsidiary (other than an Excluded Subsidiary) shall (i)
voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or petition described
in clause (i) of this Article, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the Parent or any
Subsidiary (other than an Excluded Subsidiary) or for a substantial part of its assets,
(iv) file an answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of creditors or (vi)
take any action for the purpose of effecting any of the foregoing;




     (xi) the Parent or any Subsidiary (other than an Excluded Subsidiary) shall become
unable, admit in writing its inability or fail generally to pay its debts as they become
due;









 



96



     (xii) one or more judgments for the payment of money in an aggregate amount in excess
of $35,000,000 (to the extent such amount is not either (i) covered by insurance and the
applicable insurer has acknowledged liability or has been notified and is not disputing
coverage or (ii) required to be indemnified by another Person that is reasonably likely to
be able to satisfy its indemnity obligation (other than the Parent or a Subsidiary) and
such Person has acknowledged such obligation or has been notified and is not disputing such
obligation) shall be rendered against the Parent, any Subsidiary or any combination thereof
and the same shall remain undischarged and unsatisfied for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of the Parent or any
Subsidiary to enforce any such judgment;




     (xiii) an ERISA Event shall have occurred that, in the opinion of the Required
Lenders, when taken together with all other ERISA Events that have occurred, would
reasonably be expected to result in a Material Adverse Effect;




     (xiv) except during a Collateral Release Period, any Lien on any material portion of
the Collateral purported to be created under any Security Document shall cease to be, or
shall be asserted by any Loan Party not to be, a valid and perfected Lien, with the
priority required by the applicable Security Document, except (i) as a result of the sale
or other disposition of the applicable Collateral in a transaction permitted under the Loan
Documents, (ii) as a result of the Collateral Agent’s failure to maintain possession of any
stock certificates, promissory notes or other instruments delivered to it under the
Collateral Agreement, (iii) as a result of the Collateral Agent’s failure to take any
action required in order to create or perfect any such Lien following notice from the
Borrower that such action is required or (iv) as a result of the Collateral Agent’s release
of any such Lien that it is not authorized to release pursuant to the Loan Documents; or




     (xv) a Change in Control shall occur;




then, and in every such event (other than an event with respect to
the Parent or the Borrower described in clause (i) or (j) of this
Article), and at any time thereafter during the continuance of
such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either
or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding
to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued
interest thereon and









 



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all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in case of any event with
respect to the Parent or the Borrower described in clause (i) or
(j) of this Article, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with
accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower.



SECTION 22.




The Administrative Agent



          Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental thereto.




          The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Parent or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.




          The Administrative Agent shall not have any duties or obligations except those expressly set
forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall
not have any duty to disclose, and shall not be liable for the failure to disclose, any information
relating to the Parent or any of the Subsidiaries that is communicated to or obtained by the bank
serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent
shall not be liable for any action taken or not taken by it with the












 



98



consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or willful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Parent, the Borrower or a Lender, and the Administrative Agent shall
not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt
of items expressly required to be delivered to the Administrative Agent.




          The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed or sent by the proper Person.
The Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for a Loan
Party), independent accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such counsel, accountants or
experts.




          The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as Administrative Agent.




          Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor. If no successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent
which shall be a bank with an office in New York, New York, and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance of its appointment as












 



99



Administrative Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and obligations hereunder.
The fees payable by the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and such successor. After
the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03
shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to be taken by any of
them while it was acting as Administrative Agent.




          Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, the Guarantee Agreement, the Security Documents, any related agreement or any
document furnished hereunder or thereunder.




          The parties hereto acknowledge that the Arrangers (in their capacity as such) do not have any
duties or responsibilities under any of the Loan Documents and will not be subject to liability
thereunder to any of the Loan Parties for any reason.




          No Secured Party shall have any right individually to realize upon any of the Collateral, it
being understood and agreed that all powers, rights and remedies under the Security Documents may
be exercised solely by the Collateral Agent on behalf of the Secured Parties in accordance with the
terms thereof. In the event of a foreclosure by the Collateral Agent on any of the Collateral
pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender
may be the purchaser or licensor of any or all of such Collateral at any such sale or other
disposition, and the Administrative Agent, as agent for and representative of the Lenders (but not
any Lender or Lenders in its or their respective individual capacities unless the Required Lenders
shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the Collateral sold at any
such public sale, to use and apply any of the Revolving Loan Document Obligations (as defined in
the Collateral Agreement) as a credit on account of the purchase price for any Collateral payable
by the Administrative Agent on behalf of the Lenders at such sale or other disposition.




          The Lenders hereby authorize the Administrative Agent and Collateral Agent to enter into (i)
any Second Lien Intercreditor Agreement, (ii) the First Lien Intercreditor Agreement and (iii) an
acknowledgement and consent to the GM Access and Security Agreement, and, in each case, acknowledge
that they will be bound thereby.













 



100




          The Collateral Agent shall be entitled to the benefits of this Article on the same basis as if
named herein as the Administrative Agent, and also shall be entitled to the exculpatory provisions
and rights set forth in the Collateral Agreement and other Security Documents. The rights of the
Collateral Agent under the Loan Documents may not be amended or modified in a manner adverse to the
Collateral Agent without its prior written consent.




SECTION 23.




Miscellaneous



          (a) Notices. (A) Except in the case of notices and other communications expressly
permitted to be given by telephone (and subject to paragraph (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by facsimile, as follows:





     (A) if to the Parent or the Borrower, to it at One Dauch Drive, Detroit, Michigan
48211, Attention of the Chief Financial Officer (Facsimile No. 313-758-4238) with a copy to
the Treasurer (Facsimile No. 313-758-3936) and the General Counsel (Facsimile No.
313-758-3897);




     (B) if to the Administrative Agent or Collateral Agent, to JPMorgan Chase Bank, N.A.,
Loan and Agency Services Group, 1111 Fannin -10th Floor, Houston, TX 77002,
Attention of Omar Jones (Facsimile No. 713-750-2938), with a copy to JPMorgan Chase Bank,
N.A., 383 Madison Avenue — 24th Floor, NY 10179, Attention of Richard Duker
(Facsimile No. 212-270-5100);




     (C) if to JPMorgan Chase Bank, N.A. in its capacity as Issuing Bank, to it at JPMorgan
Chase Bank, N.A., Standby Letter of Credit Department — 4th Floor, 10420
Highland Manor Drive, Tampa, FL 33610, Attention of James Alonzo (Facsimile No.
813-432-5161);




     (D) if to Bank of America, N.A. in its capacity as a Swingline Lender, to it at Bank
of America, Dallas Servicing Team II, Bank of America Plaza, 901 Main St., Dallas, TX
75202, Attention of Sandra Gonzalez (Facsimile No. 214-672-8760); and




     (E) if to any other Lender, Issuing Bank or Swingline Lender, to it at its address (or
facsimile number) set forth in its Administrative Questionnaire.



          (B) Notices and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent,
the Collateral Agent or the Borrower may, in its












 



101



discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of such
procedures may be limited to particular notices or communications.




          (C) Any party hereto may change its address or facsimile number or the contact person for
notices and other communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions of this Agreement
shall be deemed to have been given on the date of receipt.




          (b) Waivers; Amendments. (A) No failure or delay by the Administrative Agent, any
Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder are
cumulative and are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of any Loan Document or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. Without limiting the generality of the foregoing, the making of a
Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default,
regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice
or knowledge of such Default at the time.




          (B) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified except, in the case of this Agreement, pursuant to an agreement
or agreements in writing entered into by the Parent, the Borrower and the Required Lenders or by
the Parent, the Borrower and the Administrative Agent with the consent of the Required Lenders or,
in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered
into by the Administrative Agent and each Loan Party that is a party thereto with the consent of
the Required Lenders; provided that no such agreement shall (i) increase the Commitment of
any Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan
or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan or LC Disbursement, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of each Lender affected
thereby, (iv) change Section 2.17(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section or the definition of “Required Lenders” or any other provision hereof
specifying the number or percentage of Lenders required to












 



102



waive, amend or modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender or (vi) release the Parent or any Material
Subsidiary from its Guarantee under the Guarantee Agreement, or limit its liability in respect of
such Guarantee, without the written consent of each Lender; provided further, that
no such agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written
consent of the Administrative Agent, such Issuing Bank or the Swingline Lender, as the case may be.




          (c) Expenses; Indemnity; Damage Waiver. (A) The Borrower shall pay (i) all
reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the
Collateral Agent and their Affiliates, including the reasonable fees, charges and disbursements of
a single counsel for the Administrative Agent and the Collateral Agent (and any local counsel that
either such Agent determines to be appropriate in connection with matters affected by laws other
than those of the State of New York), in connection with the Restatement Transactions, the
preparation and administration of the Loan Documents or any amendments, modifications or waivers of
the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by each Issuing
Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket expenses
incurred by the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for the Administrative Agent, the
Collateral Agent, any Issuing Bank or any Lender, in connection with the enforcement or protection
of its rights in connection with the Loan Documents, including its rights under this Section, or in
connection with the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of
such Loans or Letters of Credit.




          (B) The Borrower shall indemnify the Administrative Agent, the Collateral Agent, each Issuing
Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges
and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan
Documents or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto or thereto of their respective obligations hereunder or thereunder or the
consummation of the Restatement Transactions or any other transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any
refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Parent or any of the Subsidiaries, or any Environmental Liability
related in any way to the












 



103



Parent or any of the Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or any of its directors, trustees, officers or employees.




          (C) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, the Collateral Agent, any Issuing Bank or the Swingline Lender under
paragraph (a) or (b) of this Section, each Lender severally agrees (but without limiting the
obligation of the Borrower to pay such amount) to pay to the Administrative Agent, the Collateral
Agent, the applicable Issuing Bank or the Swingline Lender, as the case may be, such Lender’s pro
rata share (determined based upon their share of the combined Applicable Class A Percentages,
Applicable Class C Percentages, and Applicable Class D Percentages as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative Agent,
the Collateral Agent, the applicable Issuing Bank or the Swingline Lender in its capacity as such.




          (D) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, the Loan Documents or any agreement or instrument contemplated
thereby, the Restatement Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.




          (E) All amounts due under this Section shall be payable promptly after written demand
therefor.




          (d) Successors and Assigns. (A) The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns
permitted hereby (including any Affiliate of an Issuing Bank that issues any Letter of Credit),
except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted assignment or
transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign
or otherwise transfer its rights or obligations hereunder except in accordance with this Section.
Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns permitted hereby (including
any Affiliate of an Issuing Bank that issues any Letter of Credit), Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the












 



104



Collateral Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.




          (B) (1)Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld) of:





     the Borrower; provided that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund
or, if an Event of Default under clause (a), (b), (i) or (j) of Article VII has
occurred and is continuing, any other assignee;




     the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment of a Commitment to an
assignee that is a Lender with a Commitment immediately prior to giving effect to
such assignment; and




     the Swingline Lender and each Issuing Bank.




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






     except in the case of an assignment to a Lender or an Affiliate of a Lender or
an assignment of the entire remaining amount of the assigning Lender’s Commitment,
the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 unless each of the Borrower and the Administrative Agent otherwise
consent; provided that no such consent of the Borrower shall be required if
an Event of Default under clause (a), (b), (i) or (j) of Article VII has occurred
and is continuing;




     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 in
respect of the applicable Class;




     the parties to each assignment shall execute and deliver to the Administrative
Agent (and, in the case of an assignment requiring the consent of the Borrower
pursuant to subparagraph (b)(i)(A) of this Section 9.04, the Borrower) an
Assignment and Assumption, and shall pay to the Administrative Agent a processing
and recordation fee of $3,500;




     the Administrative Agent shall notify the Borrower of each assignment of which
the Administrative Agent becomes aware; provided that the failure of the
Administrative Agent to provide such notice shall in









 



105



no way affect any of the rights or obligations of the Administrative Agent
under this Agreement or otherwise subject the Administrative Agent to any
liability;




     the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire; and




     whether or not an Event of Default has occurred, no assignment shall be made
to a Person (without the written consent of the Borrower and the Administrative
Agent, which consent may be withheld in the Borrower’s and the Administrative
Agent’s sole discretion) if such Person would be a Fee Receiver that is not a
Permitted Fee Receiver.



          For purposes of this Section 9.04(b), the term “Approved Fund” has the following meaning:




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





     (3) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and
9.03). Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.04 shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (c) of this Section.




     (4) The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in
the Register shall be conclusive, and the Parent, the Borrower, the Administrative Agent,
the Collateral Agent, the Issuing Banks 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









 



106



purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Parent, the Borrower, any Issuing Bank, any
Lender and their respective representatives (including counsel and accountants), at any
reasonable time and from time to time upon reasonable prior notice.




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



          (C) Any Lender may, without the consent of the Borrower, the Administrative Agent, the
Issuing Banks or the Swingline Lender, sell participations to one or more banks or other entities
(other than any Person that would be a Fee Receiver that is not a Permitted Fee Receiver, unless
such Fee Receiver receives written consent of the Borrower and the Administrative Agent (which
consent may be withheld in the Borrower’s and the Administrative Agent’s sole discretion)) (each, a
“Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations, (C) such Lender shall deliver to the Administrative Agent and the Borrower (in
such number of copies as shall be requested by the recipient) duly signed completed copies of
Internal Revenue Service Form W-8IMY (or any successor thereto), together with any information
statements of exemption required under the Code for each Participant and (D) the Loan Parties, the
Administrative Agent, the Collateral Agent, the Issuing Banks and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for
the indemnity under Section 2.16(h) with respect to any payments made by such Lender to its
Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve
any amendment, modification or waiver of any provision of this Agreement. The Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 (subject to the
requirements and limitations therein, including the requirements under Section 2.16(f) (it being
understood that the documentation required under Section 2.16(f) shall be delivered to the
participating Lender)) to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section; provided that such Participant (A)
agrees to be subject to the provisions of Sections 2.17 and 2.18 as if it were an assignee under
paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under
Sections 2.14 or 2.16,









 



107


with respect to any participation, than its participating Lender would have
been entitled to
receive. To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such Participant agrees to be subject
to Section 2.17(c) as though it were a Lender. Each Lender that sells a participation shall,
acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters
the name and address of each Participant and the principal amounts (and stated interest) of each
Participant’s interest in the Loans or other obligations under this Agreement (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any
portion of the Participant Register to any Person (including the identity of any Participant or any
information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or
its other obligations under any Loan Document) except to the extent that such disclosure is
necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in
registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries
in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat
each person whose name is recorded in the Participant Register as the owner of such participation
of all purposes of this Agreement notwithstanding any notice to the contrary.




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




          (e) Survival. All covenants, agreements, representations and warranties made by the
Parent and Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or any other amount payable under
this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.03
and Article VIII shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this Agreement or any provision
hereof.




          (f) Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each









 



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of which shall
constitute an original, but all of which when taken together shall constitute
a single contract. This Agreement, the Amendment and Restatement Agreement, the Guarantee
Agreement, the Security Documents and any separate letter agreements with respect to fees payable
to the Administrative Agent, the Collateral Agent or any Issuing Bank constitute the entire
contract among the parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective as provided in the Amendment and Restatement Agreement, and
thereafter shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.




          (g) Severability. Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.




          (h) Right of Setoff. Upon the occurrence and during the continuance of an Event of
Default, and provided that the Loans shall have become or shall have been declared due and payable
pursuant to the provisions of Article VII, each Lender is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and other obligations
at any time owing by such Lender to or for the credit or the account of the Parent or the Borrower
against any of and all the obligations of the Borrower now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. Any such deposits and
obligations may be combined in such setoff and application, regardless of the currency in which
such deposits and obligations are denominated. Each Lender agrees to promptly notify the Parent
and the Borrower after any such set-off and application; provided that the failure of any
Lender to so notify the Parent and the Borrower shall not affect the validity of any such set-off
and application. The rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.




          (i) Governing Law; Jurisdiction; Consent to Service of Process. (A) This Agreement
shall be construed in accordance with and governed by the law of the State of New York.




          (B) Each of the Parent and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New
York sitting in New York County and of the United States District Court of the Southern District of
New York, and any appellate court from any thereof, in any action or proceeding arising out of or
relating to any Loan Document, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to the extent









 



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permitted
by law, in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this
Agreement or any other Loan Document shall affect any right that the Administrative Agent, the
Collateral Agent, any Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in the courts of any
jurisdiction.




          (C) Each of the Parent and the Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or relating to any
Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.




          (D) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.




          (j) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.




          (k) Judgment Currency. The obligations hereunder of the Borrower to make payments in
Dollars or in an Alternative Currency, as the case may be (the “Obligation Currency”),
shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed
in or converted into any currency other than the Obligation Currency, except to the extent that
such tender or recovery results in the effective receipt by the Administrative Agent or a Lender of
the full amount of the Obligation Currency expressed to be payable to the Administrative Agent or
such Lender under this Agreement or the other Loan Documents. If, for the purpose of obtaining or
enforcing judgment against the Parent, the Borrower or any other Loan Party in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other than the Obligation
Currency (such other currency being thereinafter referred to as the









 



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“Judgment Currency”) an
amount due in the Obligation Currency, the conversion shall be
made, at the Currency Equivalent of such amount, as of the date immediately preceding the day
on which the judgment is given (such Business Day being hereinafter referred to as the
“Judgment Currency Conversion Date”).




          (A) If there is a change in the rate of exchange prevailing between the Judgment Currency
Conversion Date and the date of actual payment of the amount due, the Parent or the Borrower, as
the case may be, covenants and agrees to pay, or cause to be paid, such additional amounts, if any
(but in any event not a lesser amount), as may be necessary to ensure that the amount paid 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
Judgment Currency stipulated in the judgment or judicial award at the rate of exchange prevailing
on the Judgment Currency Conversion Date.




          (B) For purposes of determining the Currency Equivalent under this Section 9.11, such amounts
shall include any premium and costs payable in connection with the purchase of the Obligation
Currency.




          (l) Headings. Article and Section headings and the Table of Contents used herein are
for convenience of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this Agreement.




          (m) Confidentiality. Each of the Administrative Agent, the Issuing Banks and the
Lenders agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding relating to any Loan
Document or the enforcement of rights thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the Parent or the Borrower or
(h) to the extent such Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the Administrative Agent, any Issuing Bank or
any Lender on a nonconfidential basis from a source other than the Parent or the Borrower. For the
purposes of this Section, “Information” means all information received from the Parent or
the Borrower relating to the Parent or the Borrower or their respective businesses, other than any
such information that is available to the Administrative Agent, any Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by the Parent or the Borrower. Any Person









 



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required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.




          (n) Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at
any time the interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, such excess amount shall be paid to such Lender on subsequent payment dates to the extent
not exceeding the Maximum Rate.




          (o) USA PATRIOT Act Notice. Each Lender and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies each Loan Party that pursuant to the requirements of
the USA PATRIOT Act it is required to obtain, verify and record information that identifies such
Loan Party, which information includes the name and address of such Loan Party and other
information that will allow such Lender or the Administrative Agent, as applicable, to identify
such Loan Party in accordance with such Act.




          (p) Non-Public Information. Each Lender acknowledges that all information furnished
to it pursuant to this Agreement by or on behalf of the Parent or the Borrower and relating to the
Parent, the Borrower, the other Subsidiaries or their businesses may include material non-public
information concerning the Parent, the Borrower and the other Subsidiaries and their securities,
and confirms that it has developed compliance procedures regarding the use of material non-public
information and that it will handle such material non-public information in accordance with such
procedures and applicable law, including Federal, state and foreign securities laws.




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




          (q) Optional Release of Collateral. (A) Notwithstanding any other provision herein
or in any other Loan Document, the Collateral Agent is hereby authorized to release the Collateral
from the Liens granted under the Security Documents securing the obligations under this Agreement
and the Guarantee Agreement (but not the









 



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Guarantees provided pursuant to the Guarantee Agreement)
on a Business Day specified
by the Borrower (the “Optional Release Date”), upon the satisfaction of the following
conditions precedent (the “Optional Release Conditions”), and subject to the reinstatement
of such Liens as provided in paragraph (b) below:





     (1) the Borrower shall have given notice to the Collateral Agent at least 10 days
prior to the Optional Release Date, specifying the proposed Optional Release Date;




     (2) the Collateral Release Ratings Requirement shall be satisfied as of the date of
such notice and shall remain satisfied as of the Optional Release Date;




     (3) no Default shall have occurred and be continuing as of the date of such notice or
as of the Optional Release Date;




     (4) all Liens on the Collateral securing the Senior Secured Notes and any other
obligations pursuant to the Security Documents, and any Liens securing Permitted Second
Lien Indebtedness, have been released as of the Optional Release Date or are released
simultaneously with the release of the Collateral from the Liens securing obligations under
the Loan Documents pursuant to this Section; and




     (5) on the Optional Release Date, the Administrative Agent shall have received (A) a
certificate, dated the Optional Release Date and executed on behalf of the Borrower by a
Financial Officer thereof, confirming the satisfaction of the Optional Release Conditions
set forth in clauses (ii), (iii) and (iv) above and (B) such other evidence as the
Administrative Agent may reasonably require confirming the satisfaction of the Optional
Release Conditions set forth above.


If the conditions set forth above are satisfied on the Optional Release Date, a Collateral Release
Period shall commence on such Optional Release Date. During the continuance of any Collateral
Release Period, but not otherwise, the Collateral Requirement shall not apply and all
representations and warranties and covenants contained in this Agreement, the Collateral Agreement
and any other Security Document related to the grant or perfection of Liens on the Collateral shall
be deemed to be of no force or effect. Any such release shall be without recourse to, or
representation or warranty by, the Collateral Agent and shall not require the consent of any
Lender. Subject to the satisfaction of the conditions set forth in this paragraph (a), on and
after the Optional Release Date, the Collateral Agent shall execute and deliver all such
instruments, releases, financing statements or other agreements, and take all such further actions,
at the request and expense of the Borrower, as shall be necessary to effectuate the release of
Liens granted under the Security Documents pursuant to the terms of this paragraph, without
recourse, representation or warranty.




          (B) If, following the commencement of a Collateral Release Period pursuant to paragraph (a)
of this Section, the Collateral Release Ratings Requirement is no longer satisfied or a Default
occurs and is continuing, then (i) such Collateral Release









 



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Period shall terminate, (ii) the Parent
and the Borrower shall promptly take and cause the
other Loan Parties to take all such actions as shall be necessary or as the Collateral Agent
shall reasonably request to cause the Collateral Requirement to be satisfied, (iii) the provisions
of the Loan Documents that ceased to be effective or apply during such Collateral Release Period
shall be restored and shall be effective and apply as in effect before such Collateral Release
Period commenced and (iv) the Parent and the Borrower shall, and shall cause the other Loan Parties
to, deliver such legal opinions, certificates and other documents, and satisfy such other
requirements, as were required in connection with the original grant of Liens on the Collateral
pursuant to the Security Documents, in each case to the extent requested by the Collateral Agent.




          (C) Without limiting the provisions of Section 9.03, the Borrower shall reimburse the
Collateral Agent for all costs and expenses, including attorneys’ fees and disbursements, incurred
by it in connection with any action contemplated by this Section.




          (D) It is understood that, if a Collateral Release Period terminates as provided in paragraph
(b) above, a Collateral Release Period may commence again if the requirements of paragraph (a)
above are subsequently satisfied.