EXHIBIT 10-X(1)
AMENDMENT NO. 1 TO THE SENIOR SECURED SUPERPRIORITY
CREDIT AGREEMENT
DATED AS OF MARCH 30, 2006
AMENDMENT NO. 1 TO THE SECURED SUPERPRIORITY CREDIT AGREEMENT (this
"Amendment") among ▇▇▇▇ Corporation, a Virginia corporation and a debtor and
debtor-in-possession in a case pending under chapter 11 of the Bankruptcy Code
(the "Borrower"), the Guarantors party hereto, each of which is a debtor and
debtor-in-possession in a case pending under chapter 11 of the Bankruptcy Code,
the financial institutions and other institutional lenders party hereto, and
Citicorp North America, Inc. ("CNAI"), as administrative agent (the
"Administrative Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Guarantors, the financial institutions and other
institutional lenders party thereto (the "Lenders"), the Administrative Agent
and the other agents party thereto have entered into a Senior Secured
Superpriority Credit Agreement dated as of March 3, 2006 (as amended,
supplemented or otherwise modified through the date hereof, the "Credit
Agreement"). Capitalized terms not otherwise defined in this Amendment have the
same meanings as specified in the Credit Agreement.
(2) The Borrower has requested that the Required Lenders agree to
amend certain provisions of the Credit Agreement as described herein.
(3) The Initial Lenders and the Required Lenders have agreed, subject
to the terms and conditions stated below, to amend the Credit Agreement as
hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2, hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is amended by inserting the
following new terms in the correct alphabetical order:
"Account Debtor" means the Person obligated on an Account.
"Borrowing Base Certificate" means a certificate in substantially the
form of Exhibit I hereto (with such changes therein as may be required
by the Administrative Agent or the Initial Lenders to reflect the
components of, and reserves against, the Borrowing Base as provided
for hereunder from time to time), executed and certified as accurate
and complete by a Responsible Officer of the Borrower or by the
controller of the Borrower, which shall include detailed calculations
as to the Borrowing Base as reasonably requested by the Administrative
Agent or the Initial Lenders.
"Borrowing Base Deficiency" means, at any time, the failure of (a) the
Borrowing Base at such time to equal or exceed (b) the sum of (i) the
aggregate principal amount of the Revolving Credit and Swing Line
Advances outstanding at such time plus (ii) the aggregate Available
Amount under all Letters of Credit outstanding at such time.
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"Concentration Limit" means, as to each Account Debtor set forth on
Schedule VI, the applicable percentage of Accounts owing from such
Account Debtor.
"Eligible Inventory" means, at the time of any determination thereof,
without duplication, the Inventory Value of the Loan Parties at such
time that is not ineligible for inclusion in the calculation of the
Borrowing Base pursuant to any of clauses (a) through (o) below.
Criteria and eligibility standards used in determining Eligible
Inventory may be fixed and revised from time to time by the
Administrative Agent in its reasonable discretion. Unless otherwise
from time to time approved in writing by the Administrative Agent, no
Inventory shall be deemed Eligible Inventory if, without duplication:
(a) a Loan Party does not have good, valid and unencumbered title
thereto, subject only to Liens permitted under clause (i), (ii)
or (iv) of the definition of Permitted Liens ("Permitted
Collateral Liens"); or
(b) it is not located in the United States, Mexico or Canada;
provided that in the case of Inventory located in Mexico or
Canada, the Borrower provides evidence satisfactory to the
Administrative Agent that there is an enforceable, perfected
security interest under the laws of the applicable foreign
jurisdiction in such Inventory in favor of the Administrative
Agent; provided further that Availability in respect of Inventory
located in Mexico shall be limited to an aggregate amount up to
$25,000,000; or
(c) it is either (i) not located on property owned by a Loan
Party or (ii) located at a third party processor or (except in
the case of consigned Inventory, which is covered by clause (f)
below) in another location not owned by a Loan Party (it being
understood that the Borrower will provide its best estimate of
the value of such Inventory to be agreed to by the Administrative
Agent and reflected in the Borrowing Base Certificate), and
either (A) is not covered by a Landlord Lien Waiver, (B) a Rent
Reserve has not been taken with respect to such Inventory or, in
the case of any third party processor, a Reserve has not been
taken by the Administrative Agent in the exercise of its
reasonable discretion or (C) is not subject to an enforceable
agreement in form and substance reasonably satisfactory to the
Administrative Agent pursuant to which the relevant Loan Party
has validly assigned its access rights to such Inventory and
property to the Administrative Agent; or
(d) it is operating supplies, labels, packaging or shipping
materials, cartons, repair parts, labels or miscellaneous spare
parts, nonproductive stores inventory and other such materials,
in each case not considered used for sale in the ordinary course
of business of the Loan Parties by the Administrative Agent in
its reasonable discretion from time to time; or
(e) it is not subject to a valid and perfected first priority
Lien in favor of the Administrative Agent subject only to
Permitted Collateral Liens; or
(f) it is consigned at a customer, supplier or contractor
location but still accounted for in the Loan Party's inventory
balance; or
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(g) it is Inventory that is in-transit to or from a location not
leased or owned by a Loan Party (it being understood that the
Borrower will provide its best estimate of the value of all such
Inventory, which estimate is to be reflected in the Borrowing
Base Certificate) other than any such in-transit Inventory from a
Foreign Subsidiary to a Loan Party that is physically in-transit
within the United States and as to which a Reserve has been taken
by the Administrative Agent in the exercise of its reasonable
discretion; or
(h) it is obsolete, slow-moving, nonconforming or unmerchantable
or is identified as a write-off, overstock or excess by a Loan
Party, or does not otherwise conform to the representations and
warranties contained in this Agreement and the other Loan
Documents applicable to Inventory; or
(i) it is Inventory used as a sample or prototype, display or
display item; or
(j) to the extent of any portion of Inventory Value thereof
attributable to intercompany profit among Loan Parties or their
affiliates (it being understood that the Borrower will provide
its best estimate of the value of such Inventory Value to be
agreed by the Administrative Agent and reflected in the most
recent Borrowing Base Certificate); or
(k) any Inventory that is damaged, defective or marked for return
to vendor, has been deemed by a Loan Party to require rework or
is being held for quality control purposes; or
(l) such Inventory does not meet all material applicable
standards imposed by any Governmental Authority having regulatory
authority over it; or
(m) any Inventory consisting of tooling the costs for which are
capitalized by the Borrower and its Subsidiaries;
(n) any Inventory as to which the Borrower takes an unrecorded
book to physical inventory reduction based on its most recent
physical inventory or cycle counts to the extent of such
reduction or as otherwise determined by the Administrative Agent
in its reasonable discretion; or
(o) any Inventory as to which the Borrower takes a revaluation
reserve whereby favorable variances shall be deducted from
Eligible Inventory and unfavorable variances shall not be added
to Eligible Inventory.
"Eligible Receivables" means, at the time of any determination
thereof, each Account that satisfies the following criteria: such
Account (i) has been invoiced to, and represents the bona fide amounts
due to a Loan Party from, the purchaser of goods or services, in each
case originated in the ordinary course of business of such Loan Party
and (ii) is not ineligible for inclusion in the calculation of the
Borrowing Base pursuant to any of clauses (a) through (s) below. In
determining the amount to be so included, the face amount of an
Account shall be reduced by, without duplication, to the extent not
reflected in such face amount, (A) the amount of all accrued and
actual discounts, claims, credits or credits pending, promotional
program allowances, price adjustments, finance charges or other
allowances (including any amount that a Loan Party may be obligated to
rebate
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to a customer pursuant to the terms of any written agreement or
understanding), (B) the aggregate amount of all limits and deductions
provided for in this definition and elsewhere in this Agreement, if
any, and (C) the aggregate amount of all cash received in respect of
such Account but not yet applied by a Loan Party to reduce the amount
of such Account. Criteria and eligibility standards used in
determining Eligible Receivables may be fixed and revised from time to
time by the Administrative Agent in its reasonable discretion. Unless
otherwise approved from time to time in writing by the Administrative
Agent, no Account shall be an Eligible Receivable if, without
duplication:
(a) (i) a Loan Party does not have sole lawful and absolute title
to such Account (subject only to Liens permitted under clause
(ii) or (iv) of the definition of Permitted Liens) or (ii) the
goods sold with respect to such Account have been sold under a
purchase order or pursuant to the terms of a contract or other
written agreement or understanding that indicates that any Person
other than a Loan Party has or has purported to have an ownership
interest in such goods; or
(b) (i) it is unpaid more than 90 days from the original date of
invoice or 60 days from the original due date or (ii) it has been
written off the books of a Loan Party or has been otherwise
designated on such books as uncollectible; or
(c) more than 50% in face amount of all Accounts of the same
Account Debtor are ineligible pursuant to clause (b) above; or
(d) the Account Debtor is insolvent or the subject of any
bankruptcy case or insolvency proceeding of any kind (other than
postpetition accounts payable of an Account Debtor that is a
debtor-in-possession under the Bankruptcy Code and reasonably
acceptable to the Administrative Agent); or
(e) (i) the Account is not payable in Dollars or Canadian Dollars
or other currency as to which a Reserve has been taken by the
Administrative Agent in the exercise of its reasonable discretion
or (ii) the Account Debtor is either not organized under the laws
of the United States of America, any state thereof, or the
District of Columbia, or Canada or any province thereof or is
located outside or has its principal place of business or
substantially all of its assets outside the United States or
Canada, unless, in each case, either (A) such Account is
supported by a letter of credit from an institution and in form
and substance satisfactory to the Administrative Agent in its
sole discretion or (B) the Borrower provides evidence
satisfactory to the Administrative Agent that there is an
enforceable, perfected security interest under the laws of the
applicable foreign jurisdiction in such Account in favor of the
Administrative Agent; or
(f) the Account Debtor is the United States of America or any
department, agency or instrumentality thereof, unless the
relevant Loan Party duly assigns its rights to payment of such
Account to the Administrative Agent pursuant to the Assignment of
Claims Act of 1940, as amended, which assignment and related
documents and filings shall be in form and substance reasonably
satisfactory to the Administrative Agent; or
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(g) the Account is subject to any security deposit (to the extent
received from the applicable Account Debtor), progress payment,
retainage or other similar advance made by or for the benefit of
the applicable Account Debtor, in each case to the extent
thereof; or
(h) (i) it is not subject to a valid and perfected first priority
Lien in favor of the Administrative Agent, subject to no other
Liens other than Liens permitted by this Agreement or (ii) it
does not otherwise conform in all material respects to the
representations and warranties contained in this Agreement and
the other Loan Documents relating to Accounts; or
(i) (i) such Account was invoiced in advance of goods or services
provided, (ii) such Account was invoiced twice or more, or (iii)
the associated revenue has not been earned; or
(j) the sale to the Account Debtor is on a ▇▇▇▇-and-hold,
guaranteed sale, sale-and-return, ship-and-return, sale on
approval or consignment or other similar basis or made pursuant
to any other agreement providing for repurchases or return of any
merchandise which has been claimed to be defective or otherwise
unsatisfactory; or
(k) the goods giving rise to such Account have not been shipped
and/or title has not been transferred to the Account Debtor, or
the Account represents a progress-billing or otherwise does not
represent a complete sale; for purposes hereof,
"progress-billing" means any invoice for goods sold or leased or
services rendered under a contract or agreement pursuant to which
the Account Debtor's obligation to pay such invoice is
conditioned upon the completion by a Loan Party of any further
performance under the contract or agreement; or
(l) it arises out of a sale made by a Loan Party to an employee,
officer, agent, director, Subsidiary or Affiliate of a Loan
Party; or
(m) such Account was not paid in full, and a Loan Party created a
new receivable for the unpaid portion of the Account, and other
Accounts constituting chargebacks, debit memos and other
adjustments for unauthorized deductions; or
(n) (A) the Account Debtor (i) has or has asserted a right of
set-off, offset, deduction, defense, dispute, or counterclaim
against a Loan Party (unless such Account Debtor has entered into
a written agreement reasonably satisfactory to the Administrative
Agent to waive such set-off, offset, deduction, defense, dispute,
or counterclaim rights), (ii) has disputed its liability (whether
by chargeback or otherwise) or made any claim with respect to the
Account or any other Account of a Loan Party which has not been
resolved, in each case of clauses (i) and (ii), without
duplication, only to the extent of the amount of such actual or
asserted right of set-off, or the amount of such dispute or
claim, as the case may be (except to the extent that such right
of set-off (x) may not be exercised as a result of the automatic
stay pursuant to Section 362 of the Bankruptcy Code or (y)
otherwise may not be currently exercised pursuant to the terms of
the Final Order) or (iii) is also a
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creditor or supplier of the Loan Party (but only to the extent of
such Loan Party's obligations to such Account Debtor from time to
time) or (B) the Account is contingent in any respect or for any
reason; or
(o) the Account does not comply in all material respects with the
requirements of all applicable laws and regulations, whether
Federal, state or local, including without limitation, the
Federal Consumer Credit Protection Act, Federal Truth in Lending
Act and Regulation Z; or
(p) as to any Account, to the extent that (i) a check, promissory
note, draft, trade acceptance or other instrument for the payment
of money has been received, presented for payment and returned
uncollected for any reason or (ii) such Account is otherwise
classified as a note receivable and the obligation with respect
thereto is evidenced by a promissory note or other debt
instrument or agreement; or
(q) the Account is created on cash on delivery terms, or on
extended terms and is due and payable more than 90 days from the
invoice date; or
(r) the Account represents tooling receivables related to tooling
that has not been completed or received by a Loan Party and
approved and accepted by the applicable customer; or
(s) Accounts designated by a Loan Party as convenience accounts.
Notwithstanding the forgoing, all Accounts of any single Account
Debtor and its Affiliates which, in the aggregate, exceed (i) in
respect of any Account Debtor, 20% of all Eligible Receivables or (ii)
as to any Account Debtor set forth on Schedule VI, the Concentration
Limit (provided that the Concentration Limit with respect to Eligible
Receivables owing from Ford Motor Company shall be increased to 33%
for four months of each year to be agreed between the Borrower and the
Administrative Agent in the exercise of its reasonable discretion). In
addition, in determining the aggregate amount from the same Account
Debtor that is unpaid more than 90 days from the date of invoice or
more than 60 days from the due date pursuant to clause (b) above there
shall be excluded the amount of any net credit balances relating to
Accounts due from an Account Debtor with invoice dates more than 90
days from the date of invoice or more than 60 days from the due date.
"Inventory Value" means with respect to any Inventory of a Loan Party
at the time of any determination thereof, the standard cost determined
on a first in first out basis and carried on the general ledger or
inventory system of such Loan Party stated on a basis consistent with
its current and historical accounting practices, in Dollars,
determined in accordance with the standard cost method of accounting
less, without duplication, (i) any markup on Inventory from an
affiliate and (ii) in the event variances under the standard cost
method are expensed, a reserve reasonably determined by the
Administrative Agent as appropriate in order to adjust the standard
cost of Eligible Inventory to approximate actual cost.
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"Landlord Lien Waiver" means a written agreement that is reasonably
acceptable to the Administrative Agent, pursuant to which a Person
shall waive or subordinate its rights (if any, that are or would be
prior to the Liens granted to the Administrative Agent for the benefit
of the Lenders under the Loan Documents) and claims as landlord in any
Inventory of a Loan Party for unpaid rents, grant access to the
Administrative Agent for the repossession and sale of such inventory
and make other agreements relative thereto.
"Related Assets" means, all (i) all Related Security with respect to
all Accounts, (ii) lockboxes, lockbox accounts or any collection
account, in each case if and to the extent of any such interest
therein, (iii) proceeds of the foregoing, including all funds received
by any Person in payment of any amounts owed (including invoice
prices, finance charges, interest and all other charges, if any) in
respect of any Accounts described above or Related Security with
respect to any such Accounts, or otherwise applied to repay or
discharge any such Accounts (including insurance payments applied in
the ordinary course of business to amounts owed in respect of any such
Accounts and net proceeds of any sale or other disposition of
repossessed goods that were the subject of any such Accounts) or other
collateral or property of any Person obligated to make payments under
Accounts or any other party directly or indirectly liable for payment
of such Account and (iv) records relating to the foregoing.
"Related Security" means, with respect to any Account, (i) all of the
applicable Loan Party's right, title and interest in and to the goods
(including returned or repossessed goods), if any, relating to the
sale which gave rise to such Account, (ii) all other security
interests or liens and property subject thereto from time to time
purporting to secure payment of such Account, whether pursuant to the
obligation giving rise to such Account or otherwise, (iii) all
guarantees and other agreements or arrangements of whatever character
from time to time supporting or securing payment of such Account
whether pursuant to the obligation giving rise to such Account or
otherwise, (iv) all records relating to the foregoing and (v) all
proceeds of the foregoing.
"Rent Reserve" means, with respect to any plant, warehouse
distribution center or other operating facility where any Inventory
subject to landlords' Liens or other Liens arising by operation of law
is located, a reserve equal to three (3) month's rent at such plant,
warehouse distribution center, or other operating facility, and such
other reserve amounts that may be determined by the Administrative
Agent in its reasonable discretion.
"Revolving Credit Collateral" means (a) all Accounts and Related
Contracts, (b) all Inventory, (c) all Related Assets, (d) all Account
Collateral and (e) Intellectual Property to the extent necessary to
sell, transfer, convey or otherwise dispose of the Accounts and
Inventory.
"Supermajority Revolving Credit Lenders" means, at any time, Lenders
owed or holding at least 80% in interest of the sum of (a) the
aggregate principal amount of the Revolving Credit Advances
outstanding at such time, (b) the aggregate Available Amount of all
Letters of Credit outstanding at such time, and (c) the aggregate
Unused Revolving Credit Commitment at such time; provided, however,
that if any Lender shall be a Defaulting Lender at such time, there
shall
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be excluded from the determination of Required Lenders at such time
(A) the aggregate principal amount of the Revolving Credit Advances
owing to such Lender (in its capacity as a Lender) and outstanding at
such time, (B) such Lender's Pro Rata Share of the aggregate Available
Amount of all Letters of Credit issued by such Lender and outstanding
at such time, and (C) the Unused Revolving Credit Commitment of such
Lender at such time. For purposes of this definition, the aggregate
amount of Swing Line Advances owing to any Swing Line Lender, the
aggregate principal amount of Letter of Credit Advances owing to the
Issuing Banks and the Available Amount of each Letter of Credit shall
be considered to be owed to the Lenders ratably in accordance with
their respective Revolving Credit Commitments.
"Term Collateral" means all Collateral other than Revolving Credit
Collateral.
(b) Section 1.01 of the Credit Agreement is hereby further amended by
amending and restating the definition of "Reserves" in its entirety as follows:
"Reserves" means, at any time of determination, (a) Rent Reserves, (b)
the Carve-Out and (c) such other reserves as determined from time to
time in the reasonable discretion of the Administrative Agent to
preserve and protect the value of the Collateral."
(c) Section 1.01 of the Credit Agreement is hereby further amended in
the definition of "Maturity Date" by deleting the words "eighteen months" and
inserting the words "twenty-four months" in clause (i) thereof.
(d) Article I of the Credit Agreement is hereby amended by inserting a
new Section 1.04 as follows:
"Section 1.04. Terms Generally. When any Reserve is to be established
or a change in any amount, percentage, reserve, eligibility criteria
or other item in the definitions of the terms "Borrowing Base",
"Eligible Inventory", "Eligible Receivables" and "Rent Reserve" is to
be determined in each case in the Administrative Agent's "reasonable
discretion", such Reserve shall be implemented or such change shall
become effective on the date of delivery of a written notice thereof
to the Borrower (a "Borrowing Base Change Notice"), or immediately,
without prior written notice, during the continuance of an Event of
Default."
(e) Section 2.03(a)(i) of the Credit Agreement is hereby amended by
inserting at the end of the first sentence therein the following:
"or (z) the sum of (1) the aggregate principal amount of all Revolving
Credit Advances plus Swing Line Advances and Letter of Credit Advances
outstanding at such time plus (2) the aggregate Available Amount of
all Letters of Credit outstanding at such time exceed the Borrowing
Base at such time".
(f) Section 2.03(a) of the Credit Agreement is hereby amended by
inserting a new clause at the end thereof as follows:
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"(iv) Letters of Credit may be issued for the account of a Subsidiary
that is not a Loan Party so long as such Subsidiary is primarily
liable for its reimbursement obligations thereunder pursuant to a
separate reimbursement agreement entered into between such Subsidiary
and the applicable Issuing Bank, to the extent practicable (in the
Issuing Bank's sole discretion)."
(g) Section 2.07 (a)(i) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"(i) Base Rate Advances. During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of (A)
the Base Rate in effect from time to time plus (B) the Applicable
Margin in effect from time to time, payable in arrears monthly on the
first Business Day of each month during such periods."
(h) Section 2.08 of the Credit Agreement is hereby amended by (i)
deleting the word "quarterly" and replacing it with the word "monthly" in clause
(a)(i) and (ii) deleting clause (a)(ii) and replacing it with the words
"Intentionally Omitted".
(i) Section 3.02 of the Credit Agreement is hereby amended by (i)
inserting the following new clauses at the end of clause (i) therein:
"(D) no Borrowing Base Deficiency will exist after giving effect to
such Borrowing, issuance or renewal and to the application of the
proceeds therefrom; and
(ii) the Lenders shall have received the Borrowing Base Certificate
most recently required to be delivered pursuant to Section 5.03(q),
the calculations contained in which shall be reasonably satisfactory
to the Administrative Agent; and".
(j) Section 5.01 of the Credit Agreement is hereby amended by (i)
inserting the following new clause (iv) at the end of clause (e) thereof:
"(iv) Permit third-party appraisals of Inventory; provided that such
third-party appraisals may be conducted (i) no more than once per year
or (ii) upon the occurrence and continuance of an Event of Default."
and (ii) deleting the word "30" in clause (k) thereof and replacing it with the
word "60".
(k) Section 5.02(a) of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (vi) therein and (ii) inserting the
following new clause (viii) as follows:
"and (viii) Liens on cash or cash equivalents to secure cash
management obligations to Keybank National Association provided that
such cash or cash equivalents are not in excess of $1,000,000"
(l) Section 5.02(b) of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (x) therein, (ii) inserting a new
clause (xi) as follows:
"(xi) payables owing to suppliers in connection with the Tooling
Program, and"
and (iii) sequentially renumbering the remaining clause.
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(m) Section 5.03 of the Credit Agreement is hereby amended by (i)
amending and restating clause (f) in its entirety as follows:
"(f) Cash Flows. (i) No later than the last Business Day of each
month, commencing March 31, 2006, a cash flow forecast detailing cash
receipts and cash disbursements on a weekly basis for the next 13
weeks (a "Thirteen Week Forecast"), the information and calculations
contained in which shall be reasonably satisfactory to the Initial
Lenders and (ii) as promptly as possible following delivery of a
Thirteen Week Forecast and in no event later than five Business Days
following such delivery, a Budget Variance Report for the month then
ended."
and (ii) inserting the following new clause at the end thereof:
"(q) Borrowing Base Certificate. A Borrowing Base Certificate
substantially in the form of Exhibit I as of the date required to be
delivered or so requested, in each case with supporting documentation
(including, without limitation, the documentation described in
Schedule 1 to Exhibit I) shall be furnished to the Initial Lenders:
(i) as soon as available and in any event prior to the Initial
Extension of Credit to be made after the date of entry of the Final
Order, (ii)(A) after the Initial Extension of Credit, on or before the
15th day following the end of each fiscal month, which monthly
Borrowing Base Certificate shall reflect the Accounts and Inventory
updated as of the end of each such month and (B) in addition to such
monthly Borrowing Base Certificates, (x) upon the occurrence and
continuance of an Event of Default or if Availability is less than
$150,000,000, on or before the third Business Day following the end of
each week, which weekly Borrowing Base Certificate shall reflect the
Accounts updated as of the immediately preceding Friday; provided that
if Availability is equal to or greater than $250,000,000 for three
consecutive Business Days, such Borrowing Base Certificate shall be
delivered pursuant to clause (ii)(A) herein and (y) on or before the
third Business Day of each week, weekly updates of Accounts, certified
by a Responsible Officer, and (iii) if requested by the Initial
Lenders at any other time when the Initial Lenders reasonably believe
that the then existing Borrowing Base Certificate is materially
inaccurate, as soon as reasonably available after such request, in
each case with supporting documentation as the Initial Lenders may
reasonably request (including without limitation, the documentation
described on Schedule 1 to Exhibit I)."
(n) Section 5.04(a) of the Credit Agreement is hereby amended by (i)
deleting the table contained therein and (ii) inserting a new table as follows:
Month Period then Ended EBITDAR
----- ----------------- ------------
May 2006 3 months $ 25,000,000
June 2006 4 months $ 40,000,000
July 2006 5 months $ 55,000,000
August 2006 6 months $ 75,000,000
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September 2006 7 months $105,000,000
October 2006 8 months $135,000,000
November 2006 9 months $165,000,000
December 2006 10 months $195,000,000
January 2007 11 months $230,000,000
February 2007 12 months $250,000,000
March 2007 12 months $250,000,000
April 2007 12 months $250,000,000
May 2007 12 months $250,000,000
June 2007 12 months $250,000,000
July 2007 12 months $250,000,000
August 2007 12 months $250,000,000
September 2007 12 months $250,000,000
October 2007 12 months $250,000,000
November 2007 12 months $250,000,000
December 2007 12 months $250,000,000
January 2008 12 months $250,000,000
February 2008 12 months $250,000,000
(o) Section 7.01 of the Credit Agreement is hereby amended by
inserting a new clause at the end thereof as follows:
"(c) Citicorp North America, Inc. hereby appoints Citicorp USA, Inc.
to act as "collateral agent" or as "administrative agent" solely for the purpose
of negotiating, executing, accepting delivery of and otherwise acting pursuant
to collateral access agreements, Landlord Lien Waivers or any other similar
agreement."
(p) Section 9.07 of the Credit Agreement is hereby amended by (i)
amending and restating clause (b)(ii) in its entirety as follows:
"second:
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(A) in the case of the Revolving Credit Collateral, first ratably (1)
paid to the Revolving Credit Lenders for any amounts then owing to
them, in their capacities as such, in respect of the Obligations under
the Revolving Credit Facility ratably in accordance with such
respective amounts then owing to such Revolving Credit Lenders, (2)
paid to each Lender Party (or its applicable Affiliate) for any
amounts then owing to such Lender Party (or such Affiliate) in respect
of Secured Credit Card Obligations in an aggregate amount for all such
obligations not to exceed $25,000,000, (3) paid to each Lender Party
(or its applicable Affiliate) for any amounts then owing to such
Lender Party (or such Affiliate) in respect of Cash Management
Obligations and Secured Hedge Agreements in an aggregate amount for
all such obligations not to exceed the sum of $25,000,000 plus the
unused amount, if any, under the foregoing clause (2) and (4)
deposited as Collateral in the L/C Cash Collateral Account up to an
amount equal to 105% of the aggregate Available Amount of all
outstanding Letters of Credit, provided that in the event that any
such Letter of Credit is drawn, the Administrative Agent shall pay to
the Issuing Bank that issued such Letter of Credit the amount held in
the L/C Cash Collateral Account in respect of such Letter of Credit,
provided further that, to the extent that any such Letter of Credit
shall expire or terminate undrawn and as a result thereof the amount
of the Collateral in the L/C Cash Collateral Account shall exceed 105%
of the aggregate Available Amount of all then outstanding Letters of
Credit, such excess amount of such Collateral shall be applied in
accordance with the remaining order of priority set out in this
Section 9.07(b) and second ratably paid to the Term Lenders for any
amounts then owing to them, in their capacities as such, in respect of
the Obligations under the Term Facility; and
(B) in the case of the Term Collateral, first ratably paid to the Term
Lenders for any amounts then owing to them, in their capacities as
such, in respect of the Obligations under the Term Facility and second
ratably (1) paid to the Revolving Credit Lenders for any amounts then
owing to them, in their capacities as such, in respect of the
Obligations under the Revolving Credit Facility ratably in accordance
with such respective amounts then owing to such Revolving Credit
Lenders, (2) paid to each Lender Party (or its applicable Affiliate)
for any amounts then owing to such Lender Party (or such Affiliate) in
respect of Secured Credit Card Obligations in an aggregate amount for
all such obligations not to exceed $25,000,000, (3) paid to each
Lender Party (or its applicable Affiliate) for any amounts then owing
to such Lender Party (or such Affiliate) in respect of Cash Management
Obligations and Secured Hedge Agreements in an aggregate amount for
all such obligations not to exceed the sum of $25,000,000 plus the
unused amount, if any, under the foregoing clause (2) and (4)
deposited as Collateral in the L/C Cash Collateral Account up to an
amount equal to 105% of the aggregate Available Amount of all
outstanding Letters of Credit, provided that in the event that any
such Letter of Credit is drawn, the Administrative Agent shall pay to
the Issuing Bank that issued such Letter of Credit the amount held in
the L/C Cash Collateral Account in respect of such Letter of Credit,
provided further that, to the extent that any such Letter of Credit
shall expire or terminate undrawn and as a result thereof the amount
of the Collateral in the L/C Cash Collateral Account shall exceed 105%
of the aggregate Available Amount of all then outstanding Letters of
Credit, such excess amount of such Collateral shall be applied in
accordance with the remaining order of priority set out in this
Section 9.07(b)."
13
and (ii) inserting a new clause (b)(iii) as follows:
"(iii) third, ratably to each Lender Party (or its applicable
Affiliate) for any amounts then owing to such Lender Party (or such
Affiliate), to the extent not included in clause (ii) above, in
respect of all remaining Cash Management Obligations, obligations
under Secured Hedge Agreements and Secured Credit Card Obligations."
(q) Section 10.01(j) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"change the definition of any of "Availability", "Eligible Inventory",
"Eligible Receivables", "Initial Lenders", "Loan Value" or "Reserves",
in each case, without the written consent of the Initial Lenders;
provided that any change in the definition of "Loan Value" or
"Availability" that would result in an increase in either the
Borrowing Base or Availability shall require the written consent of
the Supermajority Revolving Credit Lenders;".
(r) Annex I hereto is inserted as a new Exhibit I to the Credit
Agreement.
(s) Annex II hereto is inserted as a new Schedule VI to the Credit
Agreement.
(t) Schedule 5.01(n)(iii) is hereby amended by inserting the following
new clause therein:
"(iv) Promptly upon the funding of the Term Advance, the Borrower
shall repay all outstanding Pre-Petition Secured Indebtedness as
authorized by the DIP Financing Orders."
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written when, and only when, the following
conditions have been satisfied, and concurrent with the Borrowing of the Term
Facility:
(a) the Administrative Agent shall have received counterparts of this
Amendment executed by each Loan Party and the Required Lenders or, as to
any of the Lenders, advice satisfactory to the Agent that such Lender has
executed this Amendment,
(b) the Administrative Agent shall have received a certificate signed
by a duly authorized officer of the Borrower stating that: (x) the
representations and warranties contained in Article IV of the Credit
Agreement are true and correct in all material respects on and as of the
date of such certificate as though made on and as of such date other than
any such representations or warranties that, by their terms, refer to a
date other than the date of such certificate; and (y) no event has occurred
and is continuing that constitutes a Default, and
(c) all fees and expenses of the Administrative Agent and the Lenders
(including all reasonable fees and expenses of counsel to the
Administrative Agent), to the extent invoiced prior to the date hereof,
shall have been paid.
SECTION 3. Confirmation of Representations and Warranties. Each of the
Loan Parties hereby represents and warrants, on and as of the date hereof, that
the representations and warranties contained in the Credit Agreement are true
and correct in all material respects on and as of the
14
date hereof, before and after giving effect to this Amendment, as though made on
and as of the date hereof, other than any such representations or warranties
that, by their terms, refer to a specific date.
SECTION 4. Affirmation of Guarantors. Each Guarantor hereby consents
to the amendments to the Credit Agreement effected hereby, and hereby confirms
and agrees that, notwithstanding the effectiveness of this Amendment, the
obligations of such Guarantor contained in Article VIII of the Credit Agreement,
as amended hereby, or in any other Loan Documents to which it is a party are,
and shall remain, in full force and effect and are hereby ratified and confirmed
in all respects, except that, on and after the effectiveness of this Amendment,
each reference in Article VIII of the Credit Agreement to "this Agreement",
"hereunder", "hereof" or words of like import shall mean and be a reference to
the Credit Agreement, as amended by this Amendment.
SECTION 5. Reference to and Effect on the Loan Documents. (a) On and
after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement and each reference in the Notes and each of
the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended by this Amendment.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended by this Amendment, are and shall continue to
be in full force and effect and are hereby in all respects ratified and
confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Administrative Agent under the Credit
Agreement or any other Loan Document, nor constitute a waiver of any provision
of the Credit Agreement or any other Loan Document.
SECTION 6. Costs, Expenses. The Borrowers agree to pay on demand all
costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery and administration, modification and amendment
of this Amendment and the other instruments and documents to be delivered
hereunder (including, without limitation, the reasonable fees and expenses of
counsel for the Administrative Agent) in accordance with the terms of Section
10.04 of the Credit Agreement.
SECTION 7. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York, and to the
extent applicable, the Bankruptcy Code.
[The remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
▇▇▇▇ CORPORATION,
a debtor and debtor-in-possession, as
Borrower
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice-President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
BRAKE SYSTEMS, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
BWDAC, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
COUPLED PRODUCTS, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
DAKOTA NEW YORK CORP.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇
Title: Treasurer
DANA ATLANTIC LLC FKA GLACIER DAIDO
AMERICA, LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇ AUTOMOTIVE AFTERMARKET, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary
▇▇▇▇ BRAZIL HOLDINGS LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
▇▇▇▇ BRAZIL HOLDINGS I LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇ INFORMATION TECHNOLOGY LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ FINANCE, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ HOLDINGS, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇ RISK MANAGEMENT SERVICES, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇ TECHNOLOGY INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇ WORLD TRADE CORPORATION
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
DANDORR L.L.C.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇ LEASING CORPORATION
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
DTF TRUCKING INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
▇▇▇▇▇▇-▇▇▇▇▇, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
EFMG LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
EPE, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
ERS LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
FLIGHT OPERATIONS, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
FRICTION INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
FRICTION MATERIALS, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
GLACIER VANDERVELL INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
HOSE & TUBING PRODUCTS, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
▇▇▇▇ CORPORATION
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
LONG AUTOMOTIVE LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
LONG COOLING LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
LONG USA LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
MIDLAND BRAKE, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
PRATTVILLE MFG., INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
REINZ WISCONSIN GASKET LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ HEAVY AXLE & BRAKE, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
▇▇▇▇▇▇ HEAVY AXLE HOLDINGS, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇▇ OUTDOOR POWER EQUIPMENT
COMPONENTS LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
TORQUE-TRACTION INTEGRATION
TECHNOLOGIES LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
TORQUE-TRACTION MANUFACTURING
TECHNOLOGIES LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
TORQUE-TRACTION TECHNOLOGIES LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
UNITED BRAKE SYSTEMS INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
CITICORP NORTH AMERICA, INC.,
as Administrative Agent and Lender
By /s/ Shapleigh ▇. ▇▇▇▇▇
-------------------------------------
Name: Shapleigh ▇. ▇▇▇▇▇
Title: Managing Director
JPMORGAN CHASE BANK, N.A., as Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
BANK OF AMERICA, N.A., as Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SVP
Annex I to Amendment No. 1 to
the Senior Secured Superpriority
Credit Agreement
Exhibit I to
Credit Agreement
FORM OF
BORROWING BASE CERTIFICATE
▇▇▇▇ CORPORATION
BORROWING BASE CERTIFICATE
PERIOD ENDING ___/___/20___
Citicorp North America, Inc. as
Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Pursuant to provisions of the Senior Secured Superpriority
Debtor-in-Possession Credit Agreement, dated as of March 3, 2006, among ▇▇▇▇
Corporation, a Virginia corporation and a debtor and debtor-in-possession under
chapter 11 of the Bankruptcy Code (the "Borrower"), the Guarantors, the
financial institutions and other institutional lenders party thereto, the
Administrative Agent and the other agents party thereto (as it may be amended or
otherwise modified from time to time, being the "Credit Agreement"; capitalized
terms used herein but not defined herein being used herein as defined in the
Credit Agreement), the undersigned, a Responsible Officer of the Borrower,
hereby certifies and represents and warrants on behalf of the Borrower as
follows:
The information contained in this certificate and the attached information
supporting the calculation of the Borrowing Base Availability is true, complete
and correct as of the close of business on February 28, 2006 (the "Calculation
Date").
▇▇▇▇ CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
▇▇▇▇ CORPORATION
RECAP OF BORROWING BASE CALCULATION
SECTION 9. AS OF _________________________
AMOUNT
------
Accounts receivable
Inventory
GROSS AVAILABILITY $--
===
AVAILABILITY RESERVES -
Rent reserve
Carve-out
TOTAL AVAILABILITY RESERVES $--
===
SUB-TOTAL AVAILABILITY $--
===
Direct borrowings --
Letters of credit --
TOTAL OUTSTANDING $--
===
NET EXCESS AVAILABILITY $--
===
▇▇▇▇ CORPORATION - U.S. ONLY
A/R BORROWING BASE CALCULATION
AS OF ______________________
TOTALS
------
GROSS A/R PER AGING --
===
Over 60 days past due --
Credit balances over 60 --
Cross-aging --
Divested divisions --
Deductions --
Affiliates / related parties --
Foreign accounts --
Directed purchase offsets --
Bankrupt accounts --
Notes receivable --
Concentration reserve --
Delta between GL and aging --
Extended terms --
Contra accounts --
Convenience accounts --
Joint venture --
---
Total ineligible --
Eligible A/R --
AVAILABLE @ 85% --
===
▇▇▇▇ CORPORATION - U.S. AND MEXICO ONLY
BORROWING BASE CALCULATION - INVENTORY
AS OF ___________________
AMOUNTS IN (000'S)
AMOUNTS IN (000'S) RAW WIP FINISHED TOTALS
------------------ --- --- -------- ------
US plants -- -- -- --
Mexican plants -- -- -- --
--- --- --- ---
GROSS INVENTORY $-- $-- $-- $--
=== === === ===
Reserves -
In-transit -- -- -- --
Goods at outside processors -- -- -- --
Intercompany profit -- -- -- --
Packaging -- -- -- --
Consigned out -- -- -- --
Foreign titled material -- -- -- --
Samples -- -- -- --
3rd party machining capitalized -- -- -- --
FOB destination shipments -- -- -- --
Non-conforming inventory -- -- -- --
Slow moving reserve -- -- -- --
Obsolete reserve -- -- -- --
Shrinkage reserve -- -- -- --
Lower of cost or market reserve -- -- -- --
Inventory at Joint Venture -- -- -- --
--- --- --- ---
Total reserves -- -- -- --
Eligible inventory -- -- -- --
AVAILABLE @ 58% $-- $-- $-- $--
=== === === ===
Annex II to Amendment No. 1 to
the Senior Secured Superpriority
Credit Agreement
Schedule VI to
Credit Agreement
ACCOUNT DEBTOR PERCENTAGE OF ACCOUNTS
------------------ ----------------------
Ford Motor Company 25%
General Motors 25%
