TERM LOAN AGREEMENT,
dated as of January 16, 1998,
among
HARVARD INDUSTRIES, INC.,
THE XXXXXXXX-XXXXXX CORPORATION,
XXXXXX AUTOMOTIVE, INC.
XXXXX-ALBION CORPORATION,
XXXXXXX-XXXXXX, INC.
XXXXXXX-XXXXXX POTTSTOWN, INC.
XXXXXXX-XXXXXX TECHNOLOGIES, INC.
XXXXXXX-XXXXXX GREENVILLE, INC.
and
XXXXXXX-XXXXXX TOLEDO, INC.
AS BORROWERS,
and
THE LENDERS LISTED ON THE SIGNATURE PAGES HERETO,
AS LENDERS
TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS; CONSTRUCTION .................................... 2
1.01. Certain Definitions ............................... 2
1.02. Construction ...................................... 13
1.03. Accounting Principles ............................. 13
ARTICLE II.
THE TERM LOAN ................................................ 13
2.01. Term Loan ......................................... 13
2.02. Term Notes ........................................ 13
2.03. Maturity Date ..................................... 14
2.04. Joint and Several Liability ....................... 14
2.05. Facility Fee ...................................... 15
2.06. Funding Fee ....................................... 15
2.07. Interest Rate ..................................... 15
2.08. Interest Payment Dates ............................ 15
2.09. Payments .......................................... 16
2.10. Use of Proceeds ................................... 16
2.11. Taxes ............................................. 16
ARTICLE III.
CONDITIONS PRECEDENT TO EFFECTIVENESS OF TERM LOAN ........... 18
3.01. Conditions Precedent to Effectiveness ............ 18
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES ............................... 21
4.01. Corporate Existence; Compliance with Law ......... 21
4.02. Corporate Power Authorization; Enforceable
Obligations ...................................... 21
4.03. Ownership of Property Liens ....................... 22
4.04. Labor Relations; Collective Bargaining Agreements.. 22
4.05. Other Ventures .................................... 23
4.06. Investment Company Act ............................ 23
4.07. Margin Regulations ............................... 23
4.08. Taxes ............................................. 23
4.09. ERISA ............................................ 24
4.10. Brokers ........................................... 26
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4.11. Intellectual Property ............................. 26
4.12. Full Disclosure .................................. 27
4.13. Environmental Matters ............................. 27
4.14. Capital Stock ..................................... 28
4.15. Holding Company and Investment Company Acts ....... 28
4.16. Permits, Etc. ..................................... 28
4.17. Schedules ......................................... 28
4.18. Insurance ........................................ 28
4.19. Financial Accounting Practices, Etc. .............. 29
4.20. Location of Bank Accounts ......................... 29
4.21. Lien Priority ..................................... 29
4.22. Court Orders ..................................... 29
4.23. Registration of Transfer of Term Notes ............ 29
ARTICLE V.
COLLATERAL ................................................... 30
5.01. Grant of Security Interest ........................ 30
5.02. Administrative Priority ........................... 32
5.03. Grants, Rights and Remedies Cumulative ............ 32
5.04. No Filings Required ............................... 32
5.05. Survival .......................................... 33
ARTICLE VI.
AFFIRMATIVE AND NEGATIVE COVENANTS ........................... 33
6.01. Covenants Under Existing DIP Loan Agreement ....... 33
6.02. Liens ............................................. 34
6.03. Indebtedness ...................................... 34
6.04. Overadvances ...................................... 34
ARTICLE VII.
DEFAULTS ..................................................... 35
7.01. Events of Default ................................. 35
7.02. Consequences of an Event of Default ............... 36
7.03. Certain Remedies .................................. 36
ARTICLE VIII.
MISCELLANEOUS ................................................ 37
8.01. Holidays .......................................... 37
8.02. Amendments and Waivers ............................ 37
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8.03. No Implied Waiver; Cumulative Remedies ............ 37
8.04. Notices ........................................... 38
8.05. Expenses; Taxes; Attorneys' Fees; Indemnification . 38
8.06. Several and Not Joint; Limited Liability .......... 40
8.07. Application ...................................... 40
8.08. Sharing of Proceeds of Collateral ................. 41
8.09. Severability ...................................... 41
8.10. Governing Law .................................... 41
8.11. Prior Understandings .............................. 41
8.12. Duration; Survival ................................ 41
8.13. Participations .................................... 42
8.14. Counterparts ...................................... 42
8.15. Successors and Assigns ............................ 42
8.16. Waiver of Jury Trial .............................. 43
8.17. Right of Setoff ................................... 43
8.18. Headings .......................................... 43
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SCHEDULES
Schedule 2.10 Wire Transfer Instructions
Schedule 4.03(a)(i) Ownership of Property; Liens
Schedule 4.03(a)(ii) Ownership of Property; Liens
Schedule 4.03(b) Ownership of Property; Liens
Schedule 4.04 Labor Relations
Schedule 4.05 Other Ventures
Schedule 4.08 Taxes
Schedule 4.9(a) ERISA
Schedule 4.9(c) ERISA
Schedule 4.9(g) ERISA
Schedule 4.9(h) ERISA
Schedule 4.9(k) ERISA
Schedule 4.13 Environmental Matters
Schedule 4.14 Capital Stock
Schedule 4.18 Insurance
Schedule 4.20 Location of Bank Accounts
EXHIBITS
Exhibit A Existing DIP Loan Amendment
Exhibit B Form of Final Order
Exhibit C Intercreditor Agreement
Exhibit D Form of Term Note
TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT, dated as of January 16, 1998, among, Harvard
Industries, Inc., a Florida corporation and a debtor and debtor-in-possession
under chapter 11 of the Bankruptcy Code, The Xxxxxxxx-Xxxxxx Corporation, a
New Hampshire corporation and a debtor and debtor-in-possession under chapter
11 of the Bankruptcy Code, Xxxxxx Automotive, Inc., a Michigan corporation and
a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code,
Xxxxx-Albion Corporation, a Michigan corporation and a debtor and
debtor-in-possession under chapter 11 of the Bankruptcy Code, Xxxxxxx-Xxxxxx,
Inc., a Delaware corporation and a debtor and debtor-in-possession under
chapter 11 of the Bankruptcy Code, Xxxxxxx-Xxxxxx Greeneville, Inc., a
Delaware corporation and a debtor and debtor-in-possession under chapter 11 of
the Bankruptcy Code, Xxxxxxx-Xxxxxx Pottstown, Inc., a Delaware corporation
and a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code,
Xxxxxxx-Xxxxxx Technologies, Inc., a Delaware corporation and a debtor and
debtor-in-possession under chapter 11 of the Bankruptcy Code, and
Xxxxxxx-Xxxxxx Toledo, Inc., a Delaware corporation and a debtor and
debtor-in-possession under chapter 11 of the Bankruptcy Code (each a
"Borrower" and collectively, the "Borrowers"), and each of the entities listed
on the signature pages hereto (each a "Term Lender" and collectively, the
"Term Lenders").
BACKGROUND
Each Borrower has filed a separate petition for relief under chapter 11
of title 11 of the United States Code with the United States Bankruptcy Court
for the District of Delaware and continues to operate its business as a
debtor-in-possession.
The Borrowers have requested the Term Lenders to provide the Borrowers
with a term loan having an aggregate principal amount of $25 million and,
subject to the terms and conditions set forth herein, the Term Lenders have
agreed to provide such loan.
In consideration of the mutual covenants herein contained and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree as follows:
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ARTICLE I.
DEFINITIONS; CONSTRUCTION
1.01. Certain Definitions
In addition to other words and terms defined elsewhere in this
Agreement, as used herein the following words and terms shall have the
following meanings, respectively, unless the context hereof otherwise clearly
requires:
"Accelerated Maturity Date" shall mean the date on which the Obligations
(including, without limitation, the entire unpaid principal balance of the
Term Loans and accrued but unpaid interest thereon) shall become due and
payable pursuant to the terms of any of the Term Loan Documents, including,
without limitation, by reason of the occurrence of an Event of Default.
"Accounts" shall mean all of each Borrowers' now existing and future
accounts (as defined in the U.C.C.) and any and all other receivables (whether
or not specifically listed on schedules furnished to the Term Lenders),
including, without limitation, all accounts created by or arising from all of
its sales of goods or rendition of services to its customers, and all accounts
arising from sales or rendition of services made under any of its trade names
or styles, or through any of its divisions.
"Agreement" shall mean this Term Loan Agreement as amended, modified,
supplemented or restated from time to time in accordance with the terms hereof
and as permitted by the Intercreditor Agreement.
"Bankruptcy Code" shall mean Title 11, United States Code, 11 U.S.C.
xx.xx. 101 et seq., as amended from time to time.
"Bankruptcy Rules" shall mean the Federal Rules of Bankruptcy Procedure,
as amended from time to time.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"Borrower" and "Borrowers" shall have the meanings given such terms in
the introductory paragraph to this Agreement.
"Business Day" shall mean any day other than a Saturday, Sunday or other
day on which banking institutions are authorized or obligated to close in New
York, New York.
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"Canadian Subsidiary" means Trim Trends Canada Limited, a corporation
organized under the federal laws of Canada, but only so long as such entity is
a Subsidiary of a Company.
"Case" shall mean, collectively, the voluntary chapter 11 cases of the
Debtors under the Bankruptcy Code pending in the Court.
"Cash Collateral Account" shall have the meaning given to such term in
the Existing DIP Loan Agreement.
"Charges" shall mean all federal, state, county, city, municipal, local,
foreign or other governmental (including, without limitation, PBGC) taxes at
the time due and payable, levies, assessments, charges, liens, claims or
encumbrances upon or relating to (i) the Collateral, (ii) the Obligations,
(iii) the Borrowers' employees, payroll, income or gross receipts, (iv) the
Borrowers' ownership or use of any of its assets, or (v) any other aspect of
the Borrowers' businesses.
"Chattel Paper" shall mean any "chattel paper," as such term is defined
in the U.C.C., now owned or hereafter acquired by the Borrowers.
"CIT" shall mean The CIT Group/Business Credit, Inc., a New York
corporation.
"Closing Date" shall mean the date on which the conditions set forth in
Section 3.01 hereof shall be satisfied.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and any
successor statute of similar import, and regulations thereunder, in each case
as in effect from time to time. References to sections of the Code shall be
construed also to refer to any successor sections.
"Collateral" shall have the meaning given such term in Section 5.01
hereof.
"Concentration Account" shall have the meaning given to such term in the
Existing DIP Loan Agreement.
"Contracts" shall mean all contracts, undertakings, or other agreements
(other than rights evidenced by Chattel Paper, Documents or Instruments) in or
under which a Borrower may now or hereafter have any right, title or interest,
including, without limitation, with respect to an Account, or any agreement
relating to the terms of payment or the terms of performance thereof.
"Court" shall mean the United States Bankruptcy Court for the District
of Delaware or any other court having jurisdiction over the Case.
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"Customer Transition Agreements" shall mean the agreements which may be
entered into among the Borrowers and certain customers of XX Xxxxxx which
shall be in form and substance satisfactory to the Existing DIP Lenders and
the Term Lenders relating to the reimbursement or payment by such customers of
certain costs and expenses related to the continued operation of XX Xxxxxx,
including without limitation, the Ford Transition Agreement and the GM
Transition Agreement.
"Debtors" shall mean the Borrowers.
"Designated Borrowing Officer" shall mean Xxxxx Xxxxxxxx, Xxx Xxxxxxx,
Xxx Xxxxxxxxx or such other officer as shall be designated from time to time
in writing by the Borrowers to the Term Lenders.
"Designated Financial Officer" of a Person shall mean the individual
designated from time to time by the Board of Directors or governing body
performing like functions of such Person to be the chief financial officer or
treasurer of such Person (and individuals designated from time to time by the
Board of Directors or governing body performing like functions of such Person
to act in lieu of the chief financial officer or the treasurer).
"XX Xxxxxx" shall mean Xxxxxxx-Xxxxxx Toledo, Inc.
"Documents" shall mean all present and future documents (as defined in
the U.C.C.), including, without limitation, all warehouse receipts, bills of
lading, shipping documents, chattel paper, instruments and similar documents,
all whether negotiable or not and all goods and Inventory relating thereto.
"Dollar," "Dollars" and the symbol "$" shall mean lawful money of the
United States of America.
"Effective Date" shall mean the earlier to occur of (i) the effective
date of a Plan of Reorganization confirmed by an Order of the Court and (ii)
the date on which any distributions are made under a Plan of Reorganization
that is confirmed by an Order of the Court.
"Environmental Actions" means any complaint, summons, citation, notice,
directive, order, claim, litigation, investigation, proceeding, judgment,
letter or other communication from any Governmental Authority or any third
party involving a Release (i) from or onto any of the properties presently or
formerly owned or leased by any of the Borrowers or (ii) from or onto any
facilities which received Hazardous Materials from any of the Borrowers or
involving any violation of any Environmental Law.
"Environmental Law" shall have the meaning given such term in the
Existing DIP Loan Agreement.
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"Environmental Liabilities and Costs" shall have the meaning given such
term in the Existing DIP Loan Agreement.
"Environmental Lien" shall have the meaning given such term in the
Existing DIP Loan Agreement.
"Equipment" shall mean all of a Borrower's present and hereafter
acquired equipment (as defined in the U.C.C.) including, without limitation,
all machinery, equipment, furnishings and fixtures, and all additions,
substitutions and replacements thereof, wherever located, together with all
attachments, components, parts, equipment and accessories installed thereon or
affixed thereto; provided, however, that Equipment shall not include "Excluded
Equipment" as such term is defined in the Existing DIP Loan Agreement.
"ERISA" shall have the meaning given such term in the Existing DIP Loan
Agreement.
"ERISA Affiliate" shall have the meaning given such term in the Existing
DIP Loan Agreement.
"ERISA Event" shall have the meaning given such term in the Existing DIP
Loan Agreement.
"Event of Default" shall mean any of the Events of Default described in
Section 7.01 hereof.
"Excluded Taxes" shall have the meaning given such term in Section 2.11
hereof.
"Existing DIP Agent" shall mean CIT in its capacity as agent for the
Existing DIP Lenders under the Existing DIP Loan Agreement.
"Existing DIP Debt Documents" shall mean the Existing DIP Loan
Agreement, the Existing DIP Financing Order and all other instruments and
documents that are in effect as of the date hereof and are executed in
connection with or otherwise relating to any Existing DIP Debt Document, all
as amended, supplemented or otherwise modified, from time to time, in
accordance with their respective terms and as permitted in the Intercreditor
Agreement.
"Existing DIP Financing Order" shall mean that certain Final Order (i)
Authorizing Debtors to Obtain Postpetition Financing Pursuant to Section
364(c) of the Bankruptcy Code, and (ii) Granting Liens, Super-Priority Claims
and Adequate Protection to the Existing DIP Lenders, dated June 12, 1997.
"Existing DIP Lenders" shall mean the "Lenders" as defined in the
Existing DIP Loan Agreement and their respective successors and assigns.
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"Existing DIP Liens" shall mean the Liens granted to the Existing DIP
Lenders pursuant to the Existing DIP Debt Documents.
"Existing DIP Loan Agreement" shall mean that certain Post-Petition Loan
and Security Agreement, dated as of May 8, 1997, by and among the Borrowers,
the Existing DIP Lenders and the Existing DIP Agent, as amended by that
certain Amendment No. 1, Waiver and Consent dated December 29, 1997, as
further amended by the Existing DIP Loan Amendment and as may be further
amended, supplemented or otherwise modified from time to time in accordance
with its terms and as permitted in the Intercreditor Agreement.
"Existing DIP Loan Amendment" shall mean an amendment to the Existing
DIP Loan Agreement in substantially the form annexed hereto as Exhibit A.
"Existing Liens" shall have the meaning given such term in the Existing
DIP Loan Agreement.
"Facility Fee" shall have the meaning given to such term in Section 2.06
hereof.
"Final Order" shall mean an order entered by the Court in the form
annexed hereto as Exhibit B pursuant to section 364 of the Bankruptcy Code,
approving, among other things, this Agreement and the other Term Loan
Documents and authorizing, among other things, the incurrence by the Borrowers
of permanent post-petition secured and super-priority indebtedness in
accordance with this Agreement and the other Term Loan Documents, and as to
which no stay has been entered and which has not been reversed, modified,
vacated or overturned.
"Ford Transition Agreement" shall mean the agreement to be entered into
between the Borrowers and Ford Motor Company ("Ford") which shall be in form
and substance satisfactory to the Existing DIP Lenders and the Term Lenders,
relating to (i) the reimbursement or payment by Ford of certain costs and
expenses related to the continued operation of XX Xxxxxx, and (ii) the
assurance by Ford of the receipt by the Borrowers of a residual value of the
fixed assets of XX Xxxxxx of not less than $15,000,000.
"Funding Fee" and "Funding Fees" shall have the meanings given such
terms in Section 2.07 hereof.
"GAAP" shall have the meaning given to such term in the Existing DIP
Loan Agreement.
"General Intangibles" shall mean all of a Borrowers' "general
intangibles" as such term is defined in the U.C.C. and shall include, without
limitation, all present and future right, title and interest in and to all
trade names, Trademarks (together with the goodwill associated therewith),
Patents, licenses, customer lists, distribution agreements, supply agreements
and
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tax refunds, together with all monies and claims for monies now or
hereafter due and payable in connection with any of the foregoing or
otherwise.
"GM Transition Agreement" shall mean the agreement to be entered into
between the Borrowers and General Motors Corporation ("GM") which shall be in
form and substance satisfactory to the Existing DIP Lenders and the Term
Lenders, relating to the reimbursement or payment by GM of certain costs and
expenses related to the continued operation of XX Xxxxxx.
"Governmental Authority" shall have the meaning given such term in the
Existing DIP Loan Agreement.
"Harvard" shall mean Harvard Industries, Inc.
"Hazardous Materials" shall have the meaning given such term in the
Existing DIP Loan Agreement.
"Indebtedness" shall mean without duplication, all liabilities,
contingent or otherwise, which are any of the following: (a) obligations in
respect of money (borrowed or otherwise and including, without limitation,
reimbursement and all similar obligations with respect to surety bonds,
letters of credit and bankers' acceptances, whether or not matured) or for the
deferred purchase price of property, services or assets, other than Inventory,
but excluding trade payables not more than 30 days overdue incurred in the
ordinary course of business or (b) lease obligations which, in accordance with
GAAP, have been or which should be capitalized.
"Indemnified Parties" shall have the meaning given such term in Section
8.05 hereof.
"Indemnified Taxes" shall have the meaning given such term in Section
2.11 hereof.
"Instruments" means any "instrument," as such term is defined in the
U.C.C., now owned or hereafter acquired by a Borrower, other than instruments
that constitute, or are a part of a group of writings that constitute, Chattel
Paper.
"Intercreditor Agreement" shall mean the Intercreditor Agreement,
substantially in the form of Exhibit C hereto, by and among the Term Lenders,
the Existing DIP Agent, and the Existing DIP Lenders and acknowledged by the
Borrowers, dated as of the date hereof, as amended, modified and supplemented
and in effect from time to time, regarding, inter alia, the relative priority
of the Liens granted to the Term Lenders under this Agreement and the Existing
DIP Liens, and the relative priority of the claims of the Term Lenders under
this Agreement and the claims of the Existing DIP Lenders under the Existing
DIP Debt Documents.
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"Interest Rate" shall have the meaning given such term in Section 2.07
hereof.
"Inventory" shall mean all of a Borrower's present and hereafter
acquired inventory (as defined in the U.C.C.), including, without limitation,
all merchandise, inventory and goods, and all additions, substitutions and
replacements thereof, wherever located, together with all goods and materials
used or usable in manufacturing, processing, packaging or shipping same; in
all stages of production from raw materials through work-in-progress to
finished goods.
"IRS" shall mean the Internal Revenue Service, or any successor thereto.
"Leases" shall mean, with respect to the Borrowers, all of those
leasehold interests in real property owned by any of the Borrowers, as lessee,
as such may be amended, supplemented or otherwise modified from time to time
to the extent permitted by this Agreement.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever intended to assure
payment of any Indebtedness or other obligation, and includes, without
limitation, any conditional sale or other title retention agreement, the
interest of a lessor under a Capital Lease, any financing lease having
substantially the same economic effect as any of the foregoing, and the
filing, under the U.C.C. or comparable law of any jurisdiction, of any
financing statement naming the owner of the asset to which such Lien relates
as debtor; provided, however, that Liens shall not include the Access and
Occupancy Agreement and related Accommodation Agreement between any Borrower
and General Motors Corporation and any similar agreement consented to by the
Term Lenders. The term "Capital Lease", shall have the meaning given to such
term in the Existing DIP Loan Agreement, as in effect on the date hereof.
"Local Account" shall have the meaning given to such term in the
Existing DIP Loan Agreement.
"Magten" shall mean Magten Asset Management Corp., as agent on behalf of
certain of its accounts.
"Material Adverse Change" shall mean a material adverse change in any of
(i) the condition (financial or otherwise), business, performance, operations
or properties of the Borrowers taken as one enterprise, (ii) the legality,
validity or enforceability of any Term Loan Document, (iii) the perfection or
priority of the Liens granted pursuant to this Agreement, (iv) the ability of
the Borrowers to repay the Obligations or to perform their obligations under
any of the Term Loan Documents, or (v) the rights and remedies of the Term
Lenders under the Term Loan Documents. A Material Adverse Change shall not
include a change resulting solely from any amendment, modification or waiver
of or under any
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Existing DIP Debt Document or any Term Loan Document that is permitted under
the Intercreditor Agreement.
"Material Adverse Effect" shall mean an effect that results in or
causes, or has a reasonable likelihood of resulting in or causing, a Material
Adverse Change.
"Maturity Date" shall mean the earlier to occur of (a) the Accelerated
Maturity Date, (b) the Stated Maturity Date and (c) the Effective Date.
"Multiemployer Plan" shall have the meaning given such term in the
Existing DIP Loan Agreement.
"Note Register" shall have the meaning given such term in Section 4.23
hereof.
"Note Registrar" shall have the meaning given such term in Section 4.23
hereof.
"Obligations" shall mean any and all Term Loans and all other
indebtedness, obligations, indemnities and liabilities of every kind, nature
and description owing by any one or more Borrowers to the Term Lenders under
this Agreement or any other Term Loan Document including, without limitation,
the Facility Fee, the Funding Fee, and all principal, interest, charges, fees,
costs and expenses, however evidenced, whether now existing or hereafter
arising, whether arising before, during or after the initial or any renewal
term of this Agreement or any other Term Loan Document, whether for payment or
performance, whether direct or indirect, absolute or contingent, joint or
several, due or not due, primary or secondary, liquidated or unliquidated,
secured or unsecured, and however acquired by the Term Lenders in their
capacity as such. Obligations shall not include any prepetition obligations
owing to the Term Lenders.
"Operating Account" shall have the meaning given to such term in the
Existing DIP Loan Agreement.
"Other Taxes" shall have the meaning given to such term in Section 2.11
hereof.
"Patents" shall mean all present and hereafter acquired patents and/or
patent rights of the Borrowers.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Pension Plan" shall have the meaning given such term in the Existing
DIP Loan Agreement.
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"Permitted Expenses" shall have the meaning given to such term in the
Existing DIP Loan Agreement.
"Percentage Interest" shall mean, with respect to each Term Lender, the
percentage interest of the Term Loan made by such Term Lender as set forth
next to such Term Lender's name on the signature pages hereto.
"Permitted Liens" shall mean, collectively, the (i) Existing DIP Liens,
(ii) Liens granted pursuant to the Term Loan Documents, (iii) Liens permitted
under the Existing DIP Debt Documents including, without limitation "Permitted
Purchase Money Liens", as such term is defined in the Existing DIP Loan
Agreement, (iv) Permitted Expenses and (v) Superior Existing Liens.
"Person" shall mean an individual, corporation, partnership, limited
liability company, limited liability partnership, trust, unincorporated
association, joint venture, joint-stock company, government (including
political subdivisions), Governmental Authority or agency, or any other
entity.
"Petition Date" shall mean May 8, 1997.
"Plan" means an employee benefit plan, as defined in Section 3(3) of
ERISA, which any of the Borrowers maintains, contributes to or has an
obligation to contribute to on behalf of participants who are or were employed
by any of them.
"Plan of Reorganization" shall have the meaning given such term in the
Existing DIP Loan Agreement.
"Pledged Collateral" shall mean (i) all of the Pledged Shares; (ii) all
additional shares of stock or other securities of any issuer of the Pledged
Shares from time to time acquired by any of the Borrowers in any manner; (iii)
the certificates representing the shares referred to in clause (i) and (ii)
above; and (iv) all dividends, cash, instruments and other property or
proceeds, from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the foregoing to the extent
provided herein.
"Pledged Shares" shall mean all of the shares of capital stock of a
Subsidiary (other than the Canadian Subsidiary and 000000 Xxxxxx Inc.) owned
at the date hereof by any of the Borrowers.
"Potential Default" shall mean any event or condition which, with notice
or passage of time, or any combination of the foregoing, would constitute an
Event of Default.
"Pre-Petition Obligations" shall have the meaning given to such term in
the Existing DIP Loan Agreement.
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"Proceeds" shall mean "proceeds," as such term is defined in Section
9-306(1) of the U.C.C., and, in any event, shall include, without limitation,
(a) any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to any Borrower from time to time with respect to any of the
Collateral, (b) any and all payments (in any form whatsoever) made or due and
payable to any Borrower from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Collateral by any Governmental Authority (or any Person acting under color of
Governmental Authority), and (c) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.
"Qualified Plan" shall have the meaning given such term in the Existing
DIP Loan Agreement.
"Real Estate" means the Borrowers' fee and/or leasehold interests in
real property.
"Release" shall have the meaning given such term in the Existing DIP
Loan Agreement.
"Remedial Action" shall have the meaning given such term in the Existing
DIP Loan Agreement.
"Required Term Lenders" shall mean, at any time, Term Lenders whose
aggregate Percentage Interests are in excess of 50%.
"Service Marks" shall mean all service marks and certificates of
registration of the Borrowers, together with the goodwill of the business
associated with or symbolized by such marks and registrations together with
(i) all other tradenames, trademarks, service marks, corporate names, company
names, business names, fictitious business names, trade styles, logos, other
designs or sources of business identifiers or similar devices, all
registrations with respect thereto, and all applications with respect to the
foregoing, and all reissues, divisions, continuations, extensions, renewals,
and continuations-in-part with respect to any of the foregoing, (ii) all of
the goodwill of the business connected with and symbolized by such tradenames,
Trademarks, service marks, corporate names, company styles, logos, other
designs, or sources of business identifiers or similar devices, throughout the
world, in each case whether now owned or hereafter created or acquired, and
(iii) all rights associated with the foregoing, including license royalties,
claims or rights against third parties for any past, present or future
infringement of any xxxx, Trademark or similar device, and all corresponding
rights, throughout the world.
"Stated Maturity Date" shall mean May 8, 1999, which date is two years
from and after the Closing Date of the Existing DIP Loan Agreement, or the
date the "Line of Credit", as such term is now defined in the Existing DIP
Loan Agreement, is terminated.
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"Subsidiary" shall have the meaning given such term in the Existing DIP
Loan Agreement.
"Superior Existing Liens" shall mean all valid, perfected, enforceable,
and nonavoidable liens and security interests of record existing immediately
prior to the Petition Date and includes all such valid, perfected and
nonavoidable liens and security interests under the "Pre-Petition Loan
Documents", as such term is defined in the "Existing DIP Loan Agreement".
"Term Lender" and "Term Lenders" shall have the meanings given such
terms in the introductory paragraph to this Agreement.
"Term Loan" shall have the meaning given such term in Section 2.01
hereof.
"Term Loan Documents" shall mean this Agreement, the Term Notes, the
Intercreditor Agreement, the Final Order and all other instruments, agreements
and documents delivered in connection herewith or therewith.
"Term Note" and "Term Notes" shall have the meanings given such terms in
Section 2.02 hereof.
"Title IV Plan" shall have the meaning given such term in the Existing
DIP Loan Agreement.
"Trademarks" shall mean all present and hereafter acquired trademarks
and/or trademark rights (together with the goodwill associated therewith) and
all cash and non-cash proceeds thereof.
"U.C.C." shall mean the Uniform Commercial Code as in effect from time
to time in the State of New York.
"Unfunded Pension Liability" shall have the meaning given such term in
the Existing DIP Loan Agreement.
"Welfare Benefit Plan" shall have the meaning given such term in the
Existing DIP Loan Agreement.
"Withdrawal Liability" shall have the meaning given such term in the
Existing DIP Loan Agreement.
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1.02. Construction
Unless the context of this Agreement otherwise clearly requires,
references to the plural include the singular, the singular the plural and the
part the whole and "or" has the inclusive meaning represented by the phrase
"and/or." References in this Agreement to "determination" by the Term Lenders
include good faith estimates by the Term Lenders (in the case of quantitative
determinations) and good faith beliefs by the Term Lenders (in the case of
qualitative determinations). The words "hereof," "herein," "hereunder" and
similar terms in this Agreement refer to this Agreement as a whole and not to
any particular provision of this Agreement. The section and other headings
contained in this Agreement and the Table of Contents preceding this Agreement
are for reference purposes only and shall not control or affect the
construction of this Agreement or the interpretation thereof in any respect.
Section, subsection and exhibit references are to this Agreement unless
otherwise specified.
1.03. Accounting Principles
Except as otherwise provided in this Agreement, all computations
and determinations as to accounting or financial matters and all financial
statements to be delivered pursuant to this Agreement shall be made and
prepared in accordance with GAAP (including principles of consolidation where
appropriate), and all accounting or financial terms shall have the meanings
ascribed to such terms by GAAP.
ARTICLE II.
THE TERM LOAN
2.01. Term Loan
Subject to the terms and conditions hereof, the Term Lenders agree
to make a term loan to Borrowers in the principal amount of Twenty-Five
Million Dollars ($25,000,000) on the Closing Date (the "Term Loan"). Not later
than one (1) Business Day prior to the anticipated Closing Date, the Borrowers
shall provide notice to the Term Lenders (the "Notice of Borrowing") setting
forth: (a) the Borrowers' request that the Term Loan be funded and (b) the
account information where the proceeds of the Term Loan are to be received.
Such Notice of Borrowing shall be given to the Term Lenders in writing by a
Designated Borrowing Officer.
2.02. Term Notes
The Borrowers agree that in order to evidence the Term Loan, the
Borrowers will execute and deliver to each Term Lender on the Closing Date a
promissory note, dated as
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of the Closing Date, substantially in the form of Exhibit D (each a "Term Note"
and collectively, the "Term Notes"), payable to the order of the Term Lender in
the principal amount of its respective Percentage Interest in such Term Loan.
2.03. Maturity Date
On the Maturity Date, all Obligations (including, without
limitation, all outstanding amounts under the Term Notes, and all accrued and
unpaid interest on the Obligations) shall become immediately due and payable
without notice or demand.
2.04. Joint and Several Liability
The Borrowers shall be jointly and severally liable for the
payment and performance of all Obligations to be performed by any of them, and
each Borrower shall be bound by any notices, consents or other actions
furnished or taken by any of the Borrowers. At the request of the Term
Lenders, each Borrower shall confirm in writing any action taken or proposed
to be taken by any of the other Borrowers; provided, however, that the failure
by any Borrower to furnish such confirmation shall not affect such Borrower's
obligations under the preceding sentence or any other provision of this
Agreement. Each Borrower hereby agrees that it shall be jointly and severally
liable for all Obligations and that such liability shall be absolute and
unconditional irrespective of:
(i) any lack of validity or enforceability of any
provision of this Agreement, any other Term Loan Document or any other
agreement or instrument relating to this Agreement or any other Term Loan
Document, or avoidance or subordination of any of the Obligations, in any case
relating to any other Borrower;
(ii) any change in the time, manner or place of
payment of, or in any other term of, or any increase in the amount of, all or
any of the Obligations, or any other amendment or waiver of any term of, or
any consent to departure from any requirement of, this Agreement, any Term
Note or any of the other Term Loan Documents;
(iii) any exchange, release or non-perfection of any
Lien on any collateral for, or any release or amendment or waiver of any term
of any guaranty of, or any consent to departure from any requirement of any
guaranty of, all or any of the Obligations;
(iv) the absence of any attempt to collect any of the
Obligations from any other Borrower or from any other guarantor or any other
action to enforce the same or the election of any remedy by the Term Lenders;
(v) any waiver, consent, extension, forbearance or
granting of any indulgence to any other Borrower by the Term Lenders with
respect to any provision of this Agreement or any other Term Loan Document; or
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(vi) any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a borrower or a
guarantor.
2.05. Facility Fee
On the Closing Date, the Borrowers shall pay the Term Lenders a
facility fee in the aggregate amount of $500,000 (the "Facility Fee"). The
Facility Fee shall be for all purposes fully earned and non-refundable by the
Term Lenders on the Closing Date. The Facility Fee shall be funded out of the
proceeds of the Term Loan.
2.06. Funding Fee
On the Closing Date, the Borrowers shall pay the Term Lenders a
fee (the "Funding Fee") in an aggregate amount equal to $2,000,000. The
Funding Fee shall be for all purposes fully earned and non-refundable by the
Term Lenders on the Closing Date. The Funding Fee shall be funded out of the
proceeds of the Term Loan.
2.07. Interest Rate
The unpaid principal amount of the Term Loan shall bear interest
at a rate (the "Interest Rate") per annum equal to the greater of (i) the
highest per annum interest rate for "Term Loans" and "Revolving Credit Loans"
(as such terms are used in the Existing DIP Loan Agreement) in effect on any
day from time to time under the Existing DIP Loan Agreement plus 3% and (ii)
13%. Notwithstanding any other provision of this Agreement, the maximum rate
of interest payable on the Obligations shall not exceed the maximum rate
permitted by applicable law. If interest in excess of said maximum rate shall
be paid hereunder, the excess shall be returned to the Borrowers unless an
Event of Default (as defined in the Existing DIP Loan Agreement) shall have
occurred and is continuing under the Existing DIP Loan Agreement, in which
event such excess shall be disbursed as provided in the Intercreditor
Agreement or if the Intercreditor Agreement shall no longer be in effect, then
the excess shall be used to reduce the outstanding principal due under the
Term Loan.
2.08. Interest Payment Dates
The Borrowers shall pay interest on the unpaid principal amount of
the Term Loan from the Closing Date until such principal amount shall be paid
in full, which interest shall be payable monthly in arrears on the first
Business Day of each month, commencing on the first Business Day of the month
following the Closing Date.
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2.09. Payments
(a) Time, Place and Manner. All payments to be made in
respect of the Obligations or other amounts due hereunder, under the Term
Notes or any other Term Loan Document shall be payable at or before 1:00 P.M.,
New York City time, on the day when due without presentment, demand, protest
or notice of any kind, all of which are hereby expressly waived. Such payments
shall be made in Dollars by wire transfer in funds immediately available to
each Term Lender in its Percentage Interest of such payments according to the
wire instructions set forth on Schedule 2.09 hereto (or at any other address
at which such Term Lender shall notify the Borrowers in writing, provided such
Term Lender has given the Borrowers notice of such other address at least five
(5) days in advance of when such payment is due), without setoff, counterclaim
or other deduction or defense of any nature or kind whatsoever. Interest on
all Obligations and all fees that accrue on a per annum basis shall be
computed on the basis of the actual number of days elapsed in the period
during which interest or such fee accrues and a year of 360 days. In computing
interest on any Term Loan, the date of the making of such Term Loan shall be
included and the date of payment shall be excluded.
(b) Interest Upon Events of Default. To the extent permitted
by law, after there shall have occurred and so long as there is continuing an
Event of Default pursuant to Section 7.01, all principal, interest, fees,
indemnities or any other Obligations of the Borrowers hereunder, or under any
Term Note or any other Term Loan Document (and including, without limitation,
interest accrued under this subsection 2.09) shall bear interest both before
and after judgment, at a rate per annum of 2% above the otherwise applicable
Interest Rate for such day, compounded daily, and such interest shall be
payable on demand.
2.10. Use of Proceeds
The Borrowers hereby covenant, represent and warrant that the
proceeds of the Term Loan made to them less the Facility Fee, the Funding Fee
and the expenses set forth in Section 8.05(a) for which a statement is
presented on or before the Closing Date (which fees and expenses shall be paid
from the proceeds of the Term Loan) will, upon Borrowers' receipt of such
proceeds, be paid by Borrowers to the Existing DIP Agent to reduce the accrued
and unpaid interest on and the then outstanding principal balance of the
"Revolving Credit Loans," as such term is defined in the Existing DIP Loan
Agreement and to pay the amounts due under Section 12.2 of the Existing DIP
Loan Agreement for which a statement is presented on or before the Closing
Date.
2.11. Taxes
(a) Any and all payments by the Borrowers hereunder or under
the Term Notes shall be made free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, attributable thereto and all liabilities with respect thereto,
excluding taxes imposed on or measured by the gross or net
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income or revenues of the Term Lenders by the jurisdiction under the laws of
which any Term Lender is organized or any political subdivision thereof (all
such excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Excluded Taxes" and all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Indemnified Taxes"). If the
Borrowers shall be required by law to deduct any Indemnified Taxes from or in
respect of any sum payable hereunder or under the Term Notes to the Term
Lenders, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.11) each Term Lender receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrowers shall make such deductions, and (iii) the Borrowers
shall pay the full amount deducted to the relevant taxing or other authority
in accordance with applicable law.
(b) In addition, the Borrowers agree to pay any present or
future stamp or documentary taxes or any other sales, excise or other property
taxes, charges or similar levies that arise from any payment made hereunder or
under the Term Notes or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or the Term Notes (hereinafter
referred to as "Other Taxes").
(c) The Borrowers shall indemnify the Term Lenders for the
full amount of Indemnified Taxes, Excluded Taxes or Other Taxes (but in the
case of Excluded Taxes, only Excluded Taxes that are imposed by any
jurisdiction on any additional amounts payable under this Section 2.11) paid
by the Term Lenders and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such
Indemnified Taxes, Excluded Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made thirty (30) days from the date
any Term Lender makes written demand therefor.
(d) Prior to the Closing Date, each Term Lender that is not
organized under the laws of the United States of America, a state thereof or
the District of Columbia agrees that it will deliver to Harvard on behalf of
the Borrowers (i)(x) two duly completed copies of Internal Revenue Service
Form 1001 or 4224 or successor applicable form, as the case may be, or (y) in
the case of a Term Lender claiming exemption from United States withholding
taxes under Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest" (a "Registered Holder"), a certificate representing that
such Registered Holder is entitled to the benefits of such Section 871(h) or
881(c), as the case may be, and (ii) two duly completed copies of Internal
Revenue Service Form W-8 or successor applicable form.
Each such Term Lender also agrees to deliver to Harvard on behalf of the
Borrowers two further copies of the said Form 1001 or 4224 or applicable
certificate, and Form W-8, or successor applicable forms or other manner of
certification, as the case may be, on or before the date that any such form or
certificate expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form or certificate previously delivered
by it to Harvard on behalf of the Borrowers, and such extensions or renewals
thereof as may
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reasonably be requested by Harvard, unless in any such case an event
(including, without limitation, any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such form or certificate inapplicable or which
would prevent such Term Lender from duly completing and delivering any such
form or certificate with respect to it and such Term Lender so advises Harvard
on behalf of the Borrowers.
Such Term Lender shall certify (i) in the case of (x) a Form 1001 or
4224, that it is entitled to receive payments under this Agreement and the
Term Notes without deduction or withholding of any United States federal
income taxes or (y) a Term Lender that is a Registered Holder, that it is
entitled to the benefits of Section 871(h) or 881(c) of the Code, as the case
may be, and (iii) in the case of a Form W-8, that it is entitled to an
exemption from United States backup withholding tax.
Notwithstanding the other provisions of this Section 2.11, the Borrowers
shall not be required to pay any increased amount on account of Indemnified
Taxes (or Other Taxes related thereto) pursuant to this Section 2.11 to any
Term Lender that fails to furnish any form, statement or certification that it
is required to furnish in accordance with this Section 2.11 and, to the extent
required by law, the Borrowers shall be entitled to deduct Indemnified Taxes
from the payments owed to such Term Lender.
(e) The foregoing provisions of this Section 2.11 are
subject to the provisions of Section 8.13(d).
ARTICLE III.
CONDITIONS PRECEDENT TO EFFECTIVENESS OF TERM LOAN
3.01. Conditions Precedent to Effectiveness.
This Agreement shall become effective as of the Business Day when
each of the following conditions precedent shall have been satisfied or waived
by the Term Lenders and the obligation of Term Lenders to make the Term Loan
hereunder shall be subject to the satisfaction or waiver by the Term Lenders
of the following conditions precedent:
(a) Payment of Expenses, Etc.
The Borrowers shall have paid all amounts then owing to the
Term Lenders by the Borrowers hereunder, or under any other Term Loan
Document, including, without limitation, those amounts due and payable on the
Closing Date pursuant to Sections
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2.05, 2.06 and, to the extent statements therefor have been furnished to the
Borrowers, 8.05(a) hereof.
(b) Representations and Warranties; No Event of Default
The representations and warranties contained in Article IV
of this Agreement and in each other Term Loan Document and certificate or
other writing delivered to the Term Lenders pursuant hereto or thereto or
prior to the Closing Date shall be correct in all material respects on and as
of the Closing Date as though made on and as of such date; and no Potential
Default or Event of Default shall have occurred and be continuing on the
Closing Date or would result from this Agreement becoming effective in
accordance with its terms or the making of the Term Loan on the Closing Date.
(c) Delivery of Documents
The Term Lenders shall have received on or before the
Closing Date the following, each in form and substance satisfactory to the
Term Lenders and their counsel and, unless indicated otherwise, dated the
Closing Date:
(i) the Intercreditor Agreement and the Existing DIP
Loan Amendment duly executed by the parties thereto, which documents shall be
in full force and effect.
(ii) a copy of the resolutions adopted by the Board
of Directors of each of the Borrowers, certified as of the Closing Date by
authorized officers thereof, authorizing (A) in the case of the Borrowers, the
borrowing hereunder and the transactions contemplated by the Term Loan
Documents to which each Borrower is or will be a party, and (B) the execution,
delivery and performance by such Borrower of each Term Loan Document and the
execution and delivery of the other documents to be delivered by such Borrower
in connection therewith;
(iii) a certificate of an authorized officer of each
Borrower, certifying the names and true signatures of the officers of such
Borrower authorized to sign each Term Loan Document to which such Borrower is
or will be a party and the other documents to be executed and delivered by
such Borrower in connection therewith, together with evidence of the
incumbency of such authorized officers;
(iv) a certificate of the Designated Financial
Officer of each of the Borrowers, certifying as to the matters set forth in
Section 3.01(b);
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(v) a certificate of an authorized officer of the
Borrowers certifying the names and true signatures of those officers of the
Borrowers that are authorized to provide all notices under this Agreement and
the Term Loan Documents; and
(vi) such other agreements, instruments, approvals,
and other documents as the Term Lenders may reasonably request.
(d) Lien Priority
The Liens in favor of the Term Lenders pursuant to the Term
Loan Documents shall be valid and perfected Liens on the Collateral, subject
only to the Permitted Liens.
(e) Legal Restraints/Litigation
Except as set forth in any public filings made by any
Borrower with the Securities and Exchange Commission and except for any
matters disclosed on Schedule 3.01(f) hereto, there shall be no (1)
litigation, investigation or proceeding (judicial or administrative) pending
or, to their knowledge, threatened against the Borrowers or their assets or
properties (other than the Case), by any Person relating in any way to the
transactions contemplated by this Agreement and the other Term Loan Documents,
(2) injunction, writ or restraining order restraining or prohibiting the
transactions contemplated by this Agreement and the other Term Loan Documents,
or (3) suit, action, investigation or proceeding (judicial or administrative)
pending or threatened against the Borrowers or their assets, which, in the
opinion of the Term Lenders, if adversely determined could have a Material
Adverse Effect.
(f) Indebtedness
The Borrowers shall have no Indebtedness or other
liabilities other than (1) Indebtedness to the Existing DIP Lenders under the
Existing DIP Debt Documents, (2) Indebtedness permitted under the Existing DIP
Debt Documents, and (3) Indebtedness permitted under the Term Loan Documents.
(g) Information. Debtors shall have furnished the Term
Lenders with all financial information, projections, budgets, business plans,
cash flows and such other information as the Term Lenders shall have
requested.
(h) Entry of Final Order. The Final Order shall have been
entered by the Court on or before January 31, 1998 and such Final Order shall
be in full force and effect and shall not have been vacated, reversed,
modified, amended or stayed in any respect and, in the event that such order
is the subject of any pending appeal, the performance of any obligation
hereunder of any party hereto shall not be the subject of a stay pending
appeal.
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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
To induce the Term Lenders to make the Term Loan, each Borrower (and
Harvard on behalf of itself and each Borrower) makes the following
representations and warranties to the Term Lenders, each and all of which
shall be true and correct as of the date of execution and delivery of this
Agreement, and shall survive the execution and delivery of this Agreement:
4.01. Corporate Existence; Compliance with Law.
Such Borrower (i) is a corporation duly organized, validly
existing and in good standing under the laws of the state of its
incorporation; (ii) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership or lease of
property or the conduct of its business requires such qualification (except
for jurisdictions in which such failure so to qualify or to be in good
standing would not have a Material Adverse Effect); (iii) has the requisite
corporate power and authority and the legal right to own, pledge, mortgage or
otherwise encumber and operate its properties, to lease the property it
operates under lease, and to conduct its business as now, heretofore and
proposed to be conducted; (iv) has all material licenses, permits, consents or
approvals from or by, and has made all material filings with, and has given
all material notices to, all governmental authorities having jurisdiction, to
the extent required for such ownership, operation and conduct; (v) is in
compliance with its certificate or articles of incorporation and by-laws; and
(vi) is in compliance with all applicable provisions of law where the failure
to comply would have a Material Adverse Effect.
4.02. Corporate Power Authorization; Enforceable Obligations.
The execution, delivery and performance by such Borrower of the
Term Loan Documents and all instruments and documents to be delivered by such
Borrower, to the extent it is party thereto, hereunder and the creation of all
Liens provided for herein and therein: (i) are within such Borrower's
corporate power; (ii) have been duly authorized by all necessary or proper
corporate action and by the Closing Date will be authorized by the Final
Order; (iii) are not in contravention of any provision of such Borrower's
certificates or articles of incorporation or by-laws; (iv) will not, upon the
entry of the Final Order by the Court, violate any law or regulation, or any
order or decree of any court or governmental instrumentality; (v) will not,
upon the entry of the Final Order by the Court and the execution and delivery
of the Existing DIP Loan Amendment, conflict with or result in the breach or
termination of, constitute a default under or accelerate any performance
required by, any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which such Borrower is a party or by which such Borrower or any
of its property is bound and the effect of which will not be
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subject to the automatic stay pursuant to section 362 of the Bankruptcy Code
upon the entry of the Final Order by the Court; (vi) will not result in the
creation or imposition of any Lien upon any of the property of such Borrower
other than those in favor of the Term Lenders, all pursuant to the Term Loan
Documents; and (vii) do not require the consent or approval of any
governmental body, agency, authority or any other Person other than the entry
by the Court of the Final Order and the execution and delivery of the Existing
DIP Loan Amendment. Each of the Term Loan Documents has been duly executed and
delivered for the benefit of or on behalf of the Borrowers and each
constitutes a legal, valid and binding obligation of the Borrowers,
enforceable against them in accordance with its terms.
4.03. Ownership of Property Liens
(a) Each Borrower owns good and marketable fee simple title
to all of the Real Estate described on Schedule 4.03(a)(i) hereto under the
name of such Borrower and each Borrower has good, valid and marketable
leasehold interests in the Leases described in Schedule 4.03(a)(ii) hereto
under the name of such Borrower, and good and marketable title to, or valid
leasehold interests in, all of its other properties and assets and none of the
properties and assets of such Borrower, including, without limitation, the
Real Estate and Leases, is subject to any Liens, except Permitted Liens; and
each Borrower has received all deeds, assignments, waivers, consents,
non-disturbance and recognition or similar agreements, bills of sale and other
documents, and duly effected all recordings, filings and other actions
necessary to establish, protect and perfect such Borrower's right, title and
interest in and to all such property except where the failure to have received
such documents or effected such actions will not, in the aggregate, have a
Material Adverse Effect.
(b) All real property owned or leased by the Borrowers is
set forth on Schedule 4.03(b). No Borrower owns any other Real Estate or is
lessee or lessor under any leases other than as set forth therein. Schedule
4.03(b) is true and correct in all material respects. Part one of Schedule
4.03(b) hereto sets forth all leases of real property held by the Borrowers as
lessee and part two of Schedule 4.03(b) sets forth all leases of real property
held by the Borrowers as lessor together with information regarding the
commencement date, termination date, renewal options (if any) and annual base
rents for the fiscal years 1995 and 1996. Each of such leases is valid and
enforceable in accordance with its terms and is in full force and effect
except as the same may be affected by the commencement of the Case and the
transactions contemplated thereby.
4.04. Labor Relations; Collective Bargaining Agreements.
None of the Borrowers is engaged in any unfair labor practice that is
reasonably likely to have a Material Adverse Effect. Except as set forth in
Schedule 4.04, there is (i) no significant unfair labor practice complaint
pending against any of the Borrowers or, to the best knowledge of any of the
Borrowers, threatened against any of them, before the National Labor Relations
Board, and no significant grievance or significant arbitration proceeding
arising out
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of or under any Collective Bargaining Agreement is now pending against any of
the Borrowers or, to the best knowledge of any of the Borrowers, threatened
against any of them, (ii) no significant strike, labor dispute, slowdown or
stoppage pending against any of Borrowers or, to the best knowledge of any of
the Borrowers, threatened against any of Borrowers, and (iii) to the best
knowledge of any of the Borrowers, no union representation question existing
with respect to the employees of any of the Borrowers, except (with respect to
any matter specified in clause (i), (ii) or (iii) above, either individually
or in the aggregate) such as would have no Material Adverse Effect.
4.05. Other Ventures
Except as set forth in Schedule 4.05, no Borrower is engaged in
any joint venture or partnership with any other Person.
4.06. Investment Company Act
None of the Borrowers is an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended. The making of the Term Loan, the application of the proceeds and
repayment thereof by the Borrowers and the consummation of the transactions
contemplated by this Agreement and the other Term Loan Documents will not
violate any provision of such Act or any rule, regulation or order issued by
the Securities and Exchange Commission thereunder.
4.07. Margin Regulations
None of the Borrowers owns any "margin security," as that term is
defined in Regulations G and U of the Board, and the proceeds of the Term Loan
will be used only for the purposes contemplated hereunder. The Term Loan will
not be used, directly or indirectly, for the purpose of purchasing or carrying
any margin security, for the purpose of reducing or retiring any indebtedness
which was originally incurred to purchase or carry any margin security or for
any other purpose which might cause any of the loans under this Agreement to
be considered a "purpose credit" within the meaning of Regulations G, T, U or
X of the Board. None of the Borrowers will take or permit any agent acting on
its behalf to take any action which might cause this Agreement or any document
or instrument delivered pursuant hereto to violate any regulation of the
Board.
4.08. Taxes
All federal, state, local and foreign tax returns, reports and
statements required to be filed by the Borrowers after the Petition Date have
been filed with the appropriate governmental agencies and all Charges and
other impositions shown thereon to be due and payable have been paid prior to
the date on which any fine, penalty, interest or late charge
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may be added thereto for nonpayment thereof, or any such fine, penalty,
interest, late charge or loss has been paid. Each Borrower has paid when due
and payable all Charges required to be paid by it. Proper and accurate amounts
have been withheld by the Borrowers from their respective employees for all
periods in full and complete compliance with the tax, social security and
unemployment withholding provisions of applicable federal, state, local and
foreign law and such withholdings have been timely paid to the respective
governmental agencies. Schedule 4.08 sets forth for each Borrower those
taxable years for which its tax returns are currently being audited by the IRS
or any other applicable Governmental Authority. No Borrower has executed or
filed with the IRS or any other Governmental Authority any agreement or other
document extending, or having the effect of extending, the period for
assessment or collection of any Charges. No Borrower has filed a consent
pursuant to Code Section 341(f) or agreed to have Code Section 341(f)(2) apply
to any dispositions of subsection (f) assets (as such term is defined in Code
Section 341(f)(4)). None of the property owned by the Borrowers is property
which such Borrower is required to treat as being owned by any other Person
pursuant to the provisions of Code Section 168(f)(8) of the Internal Revenue
Code of 1954, as amended, and in effect immediately prior to the enactment of
the Tax Reform Act of 1986 or is "tax-exempt use property" within the meaning
of Code Section 168(h). No Borrower has agreed or has been requested to make
any adjustment under Code Section 481(a) by reason of a change in accounting
method or otherwise. No Borrower is a party to any written tax sharing
agreement with a Person other than a Borrower or a Subsidiary.
4.09. ERISA
(a) Schedule 4.09(a) separately identifies all Qualified
Plans, all Title IV Plans, all Multiemployer Plans, all unfunded Pension Plans
and all Welfare Benefit Plans that provide retiree benefits (other than
continuation coverage provided pursuant to Section 4980B of the Code).
(b) Each Qualified Plan has been determined by the IRS to
qualify under Section 401 of the Code, and the trusts created thereunder have
been determined to be exempt from tax under the provisions of Section 501 of
the Code, and to the best knowledge of the Borrowers nothing has occurred
which would cause the loss of such qualification or tax-exempt status.
(c) Except as set forth on Schedule 4.09(c), each Plan is in
compliance in all material respects with applicable provisions of ERISA and
the Code, including, without limitation, the filing of reports required under
ERISA or the Code which are true and correct in all material respects as of
the date filed, and with respect to each Plan, other than a Qualified Plan,
all required contributions and benefits have been paid in accordance with the
provisions of each such Plan.
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(d) None of the Borrowers or any ERISA Affiliate, with
respect to any Qualified Plan, has failed to make any contribution or pay any
amount due as required by Section 412 of the Code or Section 302 of ERISA or
the terms of any such Qualified Plan.
(e) With respect to all Welfare Benefit Plans, the present
value of future anticipated expenses for benefits pursuant to the latest
actuarial projections of liabilities does not exceed $110,000,000, and copies
of such latest projections have been made available to the Term Lenders.
(f) With respect to Pension Plans, other than Qualified
Plans, the present value of the liabilities for current participants
thereunder using PBGC interest assumptions does not exceed $2,500,000. The
Unfunded Pension Liability, in the aggregate, for all Title IV Plans does not
exceed the amount reflected in the Borrowers' financial statements delivered
to the Term Lenders.
(g) Except as set forth on Schedule 4.09(g), there has been
no, nor is there reasonably expected to occur, any ERISA Event or event
described in Section 4068 of ERISA with respect to any Title IV Plan.
(h) Except as set forth on Schedule 4.09(h), there are no
pending or, to the knowledge of the Borrowers, threatened claims, actions or
lawsuits (other than claims for benefits in the normal course), asserted or
instituted against (i) any Plan or any Qualified Plan or the assets of any
such Plan, (ii) any fiduciary with respect to any Plan or Qualified Plan or
(iii) the Borrowers with respect to any Plan or Qualified Plan.
(i) None of the Borrowers or any ERISA Affiliate has
incurred or has any reasonable likelihood of incurring any Withdrawal
Liability under Section 4201 of ERISA as a result of a complete or partial
withdrawal from a Multiemployer Plan (and no event has occurred which, with
the giving of notice under Section 4219 of ERISA, would result in any such
liability).
(j) Within the last five years none of the Borrowers or any
ERISA Affiliate has engaged in a transaction which resulted in a Title IV Plan
with Unfunded Pension Liabilities being transferred outside of the "controlled
group" (within the meaning of Section 4001(a)(14) of ERISA) of any such
entity.
(k) Except as set forth on Schedule 4.09(k), no Welfare
Benefit Plan provides for continuing benefits or coverage for any participant
or any beneficiary of a participant after such participant's termination of
employment (except as may be required by Section 4980B of the Code and at the
sole expense of the participant or the beneficiary of the participant) which
would result in a liability in an amount which would have a Material Adverse
Effect. Each Borrower and each ERISA Affiliate has complied with the notice
and continuation coverage requirements of Section 4980B of the Code and the
regulations
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thereunder, except for non-compliances which in the aggregate would have no
Material Adverse Effect.
(l) None of the Borrowers has engaged in a prohibited
transaction, as defined in Section 4975 of the Code or Section 406 of ERISA,
in connection with any Plan, which would subject or has any reasonable
likelihood of subjecting the Borrowers (after giving effect to any exemption)
to a material tax on prohibited transactions imposed by Section 4975 of the
Code or any other material liability.
(m) No liability under any Plan or Qualified Plan (whether
terminated or on-going) has been funded or satisfied through the purchase of a
contract from an insurance company that is not rated AA or better by Standard
& Poor's Corporation or any equivalent or higher rating by another nationally
recognized rating agency.
(n) None of the Borrowers and no ERISA Affiliate has any
liability under any terminated "employee benefit plan", as defined in Section
3(3) of ERISA, of any related or unrelated entity.
(o) The present value of the liability, if any, with respect
to all unfunded Pension Plans of the Borrowers is reflected on the most recent
audited financial statements delivered to the Term Lenders pursuant to this
Agreement.
4.10. Brokers
No broker or finder acting on behalf of the Borrowers brought
about the obtaining, making or closing of the loans contemplated by this
Agreement and the Borrowers have no obligation to any Person in respect of any
finder's or brokerage fees in connection with the loans or other transactions
contemplated by this Agreement.
4.11. Intellectual Property
The Borrowers own or license or otherwise have the right to use
all material licenses, permits, Patents, Patent applications, Trademarks,
Trademark applications, Service Marks, trade names, copyrights, copyright
applications, franchises, authorizations and other intellectual property
rights that are necessary for the operations of their respective businesses,
without infringement upon or conflict with the rights of any other Person with
respect thereto, including, without limitation, all trade names associated
with products of any of the Borrowers. To the best knowledge of the Borrowers,
no slogan or other advertising device, product, process, method, substance,
part or component, or other material now employed, or now contemplated to be
employed, by the Borrowers or any of their respective subsidiaries infringes
upon or conflicts with any rights owned by any other Person, and no claim or
litigation regarding any of the foregoing is pending or threatened.
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4.12. Full Disclosure
No representation or warranty made by the Borrowers in this
Agreement or any other Term Loan Document is inaccurate or misleading in any
material respect and none contains any material misstatement of fact or omits
to state a material fact or any fact necessary to make the statements
contained herein or therein not misleading. To the extent the Borrowers
furnish any projections of the financial position and results of operations of
the Borrowers for, or as at the end of, certain future periods, such
projections were believed at the time furnished to be reasonable, have been or
will have been prepared on a reasonable basis and in good faith by the
Borrowers, and have been or will be based on assumptions believed by the
Borrowers to be reasonable at the time made and upon the best information then
reasonably available to the Borrowers. There is no fact materially adversely
affecting the condition or operations, financial or otherwise, of the business
or prospects of any of the Borrowers which has not been set forth in a
footnote included in the financial statements previously delivered to the Term
Lenders, in a Schedule hereto or in any other written information previously
delivered to the Term Lenders.
4.13. Environmental Matters
Except as disclosed in Schedule 4.13, (i) none of the operations
of the Borrowers are the subject of any federal, state or local investigation
to determine whether any Remedial Action is needed to address the presence or
disposal of a Hazardous Material or a Release or threatened Release, (ii) to
the best of the Borrowers' knowledge, information and belief, the Borrowers do
not have any contingent liability in connection with any Release, which could
reasonably be expected to result in material Environmental Liabilities and
Costs, (iii) the operations of the Borrowers are in compliance in all material
respects with all Environmental Laws; (iv) there has been no Release at any of
the properties owned or operated by the Borrowers or, to the best of the
Borrowers' knowledge, information and belief, any predecessor in interest or
title, or to the best of the Borrowers' knowledge, information and belief and
except as disclosed in writing to the Term Lenders, at any disposal or
treatment facility which received Hazardous Materials generated by the
Borrowers or, to the best of the Borrowers' knowledge, information and belief,
any predecessor in interest or title, which is reasonably likely to result in
the Borrowers' incurring material Environmental Liabilities and Costs; (v) no
Environmental Actions are pending or, to the best of the Borrowers' knowledge,
information and belief, threatened against the Borrowers or, to the best of
the Borrowers' knowledge, information and belief, any predecessor in interest
or title which, if adversely determined, could reasonably be expected to
result in the Borrowers incurring material Environmental Liabilities and
Costs; (vi) the Borrowers have obtained all permits, approvals, authorizations
and licenses required by Environmental Laws necessary for their operations,
and all such permits, approvals, authorizations and licenses are in effect and
the Borrowers are in compliance with all terms and conditions of such permits,
approvals, authorizations and licenses except where failure to obtain or
comply could not result in material Environmental Liabilities and Costs; and
(vii) to the best of the Borrowers' knowledge, information and
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belief, and except as disclosed in writing to the Term Lenders, no
Environmental Actions have been asserted against any facilities that may have
received Hazardous Materials generated by the Borrowers or any predecessor in
interest or title which, if adversely determined, are reasonably likely to
result in material Environmental Liabilities and Costs to the Borrowers.
4.14. Capital Stock
Set forth on Schedule 4.14 is a complete and accurate list
showing, as of the date hereof, all Subsidiaries of the Borrowers and, as to
each such Subsidiary, the jurisdiction of its incorporation, the number of
shares of each class of stock authorized, the number outstanding on the date
hereof and the percentage of the outstanding shares of each such class owned
(directly or indirectly) by the Borrowers. No stock of any Subsidiary of the
Borrowers is subject to any outstanding option, warrant, right of conversion
or purchase or any similar right. All of the outstanding capital stock of each
such Subsidiary has been validly issued, is fully paid and non-assessable and
is owned by the Borrowers, free and clear of all Liens other than Permitted
Liens.
4.15. Holding Company and Investment Company Acts
None of the Borrowers is a (i) a "holding company" or a
"subsidiary company" of a "holding company" or an "affiliate" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act
of 1935, as amended, or (ii) an "investment company" or an "affiliated person"
or "promoter" of, or "principal underwriter" of or for, an "investment
company", as such terms are defined in the Investment Company Act of 1940, as
amended.
4.16. Permits, Etc.
The Borrowers have all material permits, material licenses,
authorizations and material approvals required for them lawfully to own and
operate their business.
4.17. Schedules
All of the information which is required to be scheduled to this
Agreement is set forth on the Schedules attached hereto, is correct and
accurate and does not omit to state any information material thereto.
4.18. Insurance
The Borrowers keep their properties adequately insured and
maintain (i) insurance to such extent and against such risks, including fire,
as is customary with companies in the same or similar businesses, (ii)
workmen's compensation insurance in the amount required by applicable law,
(iii) public liability insurance in the amount customary with
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companies in the same or similar business against claims for personal injury
or death on properties owned, occupied or controlled by it, and (iv) such
other insurance as may be required by law or by the Existing DIP Debt
Documents. Schedule 4.18 hereto sets forth a list of all insurance maintained
by the Borrowers on the Closing Date.
4.19. Financial Accounting Practices, Etc.
The Borrowers make and keep books, records and accounts which, in
reasonable detail, accurately and fairly reflect their respective transactions
and dispositions of their respective assets and maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorization, and (ii) transactions are recorded as necessary (A) to permit
preparation of financial statements in conformity with GAAP except as
previously disclosed to the Term Lenders and (B) to maintain accountability
for assets.
4.20. Location of Bank Accounts
Schedule 4.20 sets forth a complete and accurate list of all
deposit and other accounts maintained by the Borrowers together with a
description thereof (i.e. the bank at which such deposit or other account is
maintained and the account number and the purpose thereof).
4.21. Lien Priority
The Liens on the Collateral granted hereby shall be valid and
perfected Liens (subject only to the Permitted Liens) to the extent provided
in the Final Order.
4.22. Court Orders.
The Final Order is in full force and effect, and has not been
reversed, stayed, modified or amended absent the joinder and consent of the
Term Lenders.
4.23. Registration of Transfer of Term Notes.
(a) The Borrowers shall cause to be kept at the principal
office of Harvard a register (the register maintained in such office being
herein referred to as the "Note Register") in which the Borrowers shall
provide for the registration of the Term Notes and the transfer thereof. The
name and address of each registered holder of a Term Note, each transfer
thereof made pursuant to paragraph (b) of this Section 4.23, and the name and
address of each transferee of the Term Notes shall be registered in the Note
Register. The Note Register shall be in written form or any other form capable
of being converted into written form within a reasonable time. The Borrowers
hereby appoint Harvard as security registrar (the "Note
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Registrar") for the purpose of registering Term Notes and transfers of Term
Notes as herein provided.
(b) Upon surrender for registration of transfer of any Term
Note at the office of Harvard as set forth above, the Borrowers shall execute
and deliver, in the name of the designated transferee or transferees, one or
more new Term Notes of denominations of a like aggregate principal amount. All
Term Notes issued upon any registration of transfer of Term Notes shall be the
valid obligations of the Borrowers evidencing the same debt and entitled to
the same benefits under this Agreement and the other Term Loan Documents, as
the Term Notes surrendered upon such registration of transfer. Every Term Note
presented or surrendered for registration of transfer shall (if so required by
the Borrowers) be duly endorsed, or be accompanied by a written instrument of
transfer, in form reasonably satisfactory to the Borrowers duly executed by
the registered holder thereof or his attorney duly authorized in writing. No
service charge shall be made for any registration of transfer of Term Notes.
No transfer or registration of transfer of any Term Note shall be permitted or
effected unless and until the proposed designated transferee or transferees
become party to the Intercreditor Agreement.
ARTICLE V.
COLLATERAL
5.01. Grant of Security Interest
(a) As collateral security for all of the Obligations and
subject in all respects only to the Permitted Liens, each Borrower hereby
pledges and assigns to the Term Lenders, their successors and assigns, and
hereby grants to the Term Lenders an undivided continuing security interest in
and to all of such Borrower's right, title and interest in and to the
following, whether acquired prior to, on or after the Petition Date (the
"Collateral"):
(i) all Accounts of each of the Borrowers;
(ii) all Chattel Paper of each of the Borrowers;
(iii) all Contracts of each of the Borrowers;
(iv) all Documents of each of the Borrowers;
(v) all Equipment of each of the Borrowers;
(vi) all General Intangibles of each of the Borrowers;
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(vii) all Instruments of each of the Borrowers;
(viii) all Inventory of each of the Borrowers;
(ix) all Leases to which any of the Borrowers are a
party;
(x) all Real Estate owned by any of the Borrowers;
(xi) all Trademarks of each of the Borrowers;
(xii) all Service Marks of each of the Borrowers;
(xiii) all Pledged Collateral;
(xiv) all causes of action of each of the Borrowers;
(xv) each Local Account, the Concentration Account,
the Operating Account and the Cash Collateral
Account;
(xvi) all other goods, real and personal property of
each of the Borrowers, whether tangible or
intangible and whether now owned or hereafter
acquired and wherever located;
(xvii) to the extent not otherwise included, all monies
and other property of any kind which, after the
Petition Date, is received by any of the
Borrowers in connection with refunds with respect
to taxes, assessments and governmental charges
imposed on the Borrowers or any of their property
or income;
(xviii)to the extent not otherwise included, all monies
and other property of any kind and nature
recovered by any of the Borrowers in accordance
with the provisions of the Bankruptcy Code,
including, without limitation, sections 542, 553,
544, 547 and 548 thereof, or other applicable
law;
(xix) any such other property not included under
paragraphs (i) through (xviii) above that would
otherwise be deemed to constitute "Collateral" as
defined in the Existing DIP Loan Agreement, as
such agreement may be amended, modified or
replaced from time to time, or in any other
Existing DIP Debt Document (including, without
limitation, the Existing DIP Financing Order);
and
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(xx) to the extent not otherwise included, all
Proceeds of each of the foregoing and all
accessions to, substitutions and replacements
for, and rents, profits and products of each of
the foregoing;
in each case howsoever any Borrowers' interest therein may arise or appear
(whether by ownership, security interest, claim or otherwise).
(b) In addition, as collateral security for the prompt and
complete payment when due of the Obligations and in order to induce the Term
Lenders, as aforesaid, each Borrower hereby further grants to the Term Lenders
a Lien (subject in all respects to the Permitted Liens) on all property of
such Borrower held by the Term Lenders, including, without limitation, all
property of every description, now or hereafter in the possession or custody
of or in transit to the Term Lenders for any purpose, including safekeeping,
collection or pledge, for the account of such Borrower or as to which such
Borrower may have any right or power.
5.02. Administrative Priority.
After the entry of the Final Order, the Obligations shall
constitute, in accordance with section 364(c)(1) of the Bankruptcy Code,
claims against each of the Borrowers in its Case which are administrative
expense claims having priority over any and all administrative expenses of the
kind specified in sections 503(b) or 507(b) of the Bankruptcy Code, except
that the Obligations shall be subject and subordinate to (i) the Post-Petition
Obligations (as such term is defined in the Existing DIP Financing Order);
(ii) the Permitted Expenses; and (iii) the Carve-Out (as such term is defined
in the Existing DIP Financing Order).
5.03. Grants, Rights and Remedies Cumulative.
This Agreement, the Final Order and the Term Loan Documents supplement
each other, and the grants, priorities, rights and remedies of the Term
Lenders hereunder and thereunder are cumulative.
5.04. No Filings Required
The Liens and security interests referred to in Section 5.01
hereof and in the other Term Loan Documents shall be deemed valid and
perfected upon entry of the Final Order which shall have occurred on or before
the Closing Date. The Term Lenders shall not be required to file any financing
statements, notices of lien or similar instruments in any jurisdiction or
filing office or to take any other action in order to validate or perfect the
Liens and security interests granted by or pursuant to this Agreement, the
Final Order or any other Term Loan Document.
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5.05. Survival
The Liens, lien priority, administrative priority, other rights
and remedies granted to the Term Lenders pursuant to this Agreement, the Final
Order and the other Term Loan Documents (specifically including, but not
limited to, the existence, perfection and priority of the Liens and security
interests provided herein and therein, and the administrative priority
provided herein and therein) shall not be modified, altered or impaired in any
manner by any other financing or extension of credit or incurrence of debt by
any Borrower (pursuant to section 364 of the Bankruptcy Code or otherwise), or
by any dismissal or conversion of the Case, or by any other act or omission
whatever, except in accordance with the Final Order.
ARTICLE VI.
AFFIRMATIVE AND NEGATIVE COVENANTS
6.01. Covenants Under Existing DIP Loan Agreement.
All the provisions of sections 8 and 9 (other than sections 8.7,
9.1, 9.2, 9.3 and 9.9) of the Existing DIP Loan Agreement and any definitions
of any capitalized terms set forth in such sections which are set forth in the
Existing DIP Loan Agreement (in each case as in effect on the date of this
Agreement after giving effect to the terms and provisions of the Existing DIP
Loan Amendment) shall be incorporated by reference in this Agreement (without
regard to any further amendment, supplement, modification or waiver relating
thereto other than as permitted under the Intercreditor Agreement, or the
termination or expiration thereof) to the same extent as if set forth at
length herein, except that (i) all references to the terms "Lender" or "Agent"
contained therein, other than those contained in Sections 8.3 and 8.13
therein, shall mean the Term Lenders, (ii) the word "first" contained in the
first sentence of Section 8.2(b) therein shall not apply herein, (iii) from
and after the time that all "Post-Petition Obligations" (as defined in the
Existing DIP Financing Order) have been fully satisfied, all references to the
terms "Agent" or "Lender" contained in Section 8.3 therein shall mean Term
Lenders, (iv) all references to the term "Agent" contained in Section 8.13
therein shall mean the Required Term Lenders, and (v) all references to the
term "Required Lenders" contained therein shall mean the Required Term
Lenders, and the Borrowers jointly and severally agree to cause the Borrowers
to perform and observe their covenants, agreements and obligations under the
foregoing provisions of Sections 8 and 9 as so modified, so long as the
Obligations (whether or not due) remain unpaid in full in cash, including
without limitation all principal of and accrued and unpaid interest on the
Term Loans. Consistent with the foregoing, the Term Lenders shall be deemed to
have consented to any asset sale or disposition which is consented to by the
Existing DIP Lenders.
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6.02. Liens
No Borrower shall create, incur, assume or suffer to exist any
Lien on any of its assets or properties including, without limitation, the
Collateral, except the Permitted Liens.
6.03. Indebtedness
(a) No Borrower shall incur, create, assume, become or be
liable in any manner with respect to, or permit to exist any Indebtedness,
except (a) Indebtedness to the Existing DIP Lenders under the Existing DIP
Debt Documents, (b) Indebtedness permitted under the Existing DIP Debt
Documents, and (c) Indebtedness permitted under the Term Loan Documents.
(b) Notwithstanding anything to the contrary contained in
this Term Loan Agreement or the Existing DIP Debt Documents, no Borrower shall
borrow any money or incur any obligation under the Existing DIP Debt Documents
for the purpose of funding any costs or expenses incurred in connection with
the closing of the manufacturing facilities and/or premises of XX Xxxxxx in
Toledo, Ohio, unless such Borrower has been or will be reimbursed for all of
such costs and expenses under and in accordance with the terms and provisions
of the Customer Transition Agreements.
6.04. Overadvances
Without the prior written consent of the Required Term Lenders, no
Borrower shall request, incur, create, assume, become or be liable in any
manner with respect to, or permit to exist, any advance under the Existing DIP
Debt Documents such that the aggregate amount of Revolving Credit Loans (as
such term is defined in the Existing DIP Loan Agreement), including all
outstanding Letters of Credit (as such term is defined in the Existing DIP
Loan Agreement), shall exceed at any time the Aggregate Net Availability (as
such term is defined in the Existing DIP Loan Agreement) plus the sum of (i)
$4,000,000 and (ii) the maximum amount of Permitted Overadvances (as such term
is defined in the Existing DIP Loan Agreement) which are permitted from time
to time under the Existing DIP Loan Agreement.
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ARTICLE VII.
DEFAULTS
7.01. Events of Default.
An Event of Default shall mean the occurrence or existence of one
or more of the following events or conditions (whatever the reason for such
Event of Default and whether voluntary, involuntary or effected by operation
of law):
(a) The Borrowers shall (i) fail to make any payment of
principal or interest required herein to be made with respect to the
Obligations when due and payable or declared due and payable or (ii) fail to
make any payment of any other amount owing in respect of the Term Loan or any
of the other Obligations owing under this Agreement or any of the other Term
Loan Documents within five (5) days after such amount is due and payable; or
(b) Any representation or warranty herein or in any Term
Loan Document or in any written statement pursuant thereto or hereto, report,
financial statement or certificate made or delivered to the Term Lenders by
any Borrower or on behalf of any Borrower shall be untrue or incorrect in any
material respect, as of the date when made or deemed made; or
(c) Any "Event of Default" (as defined in the Existing DIP
Loan Agreement) shall have occurred and be continuing under the Existing DIP
Loan Agreement; or
(d) Any material provision of any Term Loan Document shall,
for any reason, cease to be valid and binding on any Borrower, or any Borrower
shall so state in writing; or
(e) Any Term Loan Document or the Final Order shall, for any
reason, cease to create a valid Lien in any of the Collateral purported to be
covered thereby or such Lien shall cease to be a perfected Lien having the
priority provided for herein (and in the Intercreditor Agreement) pursuant to
section 364(c) of the Bankruptcy Code against each Borrower or any Borrower
shall so allege in any pleading filed in any court; or
(f) The Final Order shall cease to be in full force and
effect, or any Borrower shall fail to comply with the terms of the Final Order
in any material respect, or the Final Order shall be amended, supplemented,
stayed, reversed, vacated or otherwise modified (or any of the Borrowers shall
apply for authority to do so) without the consent of the Required Term
Lenders; or
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(g) An application shall be filed by any of the Borrowers
for the approval of, or there shall arise, (i) any other Claim having priority
senior to or pari passu with the claims of the Term Lenders under the Term
Loan Documents or any other claim having priority over any or all
administrative expenses of the kind specified in sections 503(b) or 507(b) of
the Bankruptcy Code, except as expressly provided herein or in the
Intercreditor Agreement; or (ii) any Lien on the Collateral having a priority
senior to or pari passu with the liens and security interests granted or
confirmed herein, except as expressly provided herein or in the Intercreditor
Agreement; or
(h) Any Existing DIP Debt Document shall be amended, waived,
modified or supplemented subsequent to the date hereof in a manner expressly
prohibited by the Intercreditor Agreement; or
(i) Xxxxx Xxxxxxxx shall cease to be the Chief Executive
Officer or Chief Operating Officer of Harvard or the employment of either Xxx
Xxxxxxx or Xxxxx Xxxxxxx shall be terminated for any reason, other than by
reason of such employee's death or disability.
Notwithstanding anything in this Section 7.01 to the contrary, no Event of
Default shall be deemed to have occurred solely as a result of an amendment or
modification to or waiver given under any Existing DIP Debt Document, after
giving effect to the Existing DIP Loan Amendment, not prohibited under the
Intercreditor Agreement.
7.02. Consequences of an Event of Default.
If an Event of Default shall occur and be continuing or shall
exist, the Term Lenders may by notice to the Borrowers,
(a) declare all Obligations, including, without limitation
the Term Loans, all interest thereon and all other amounts, to be immediately
due and payable without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrowers, and an action
therefor shall immediately accrue; or
(b) give notice to the Borrowers of the occurrence and
continuance of an Event of Default.
7.03. Certain Remedies.
If an Event of Default occurs, the Term Lenders may (subject to the
terms and provisions of the Intercreditor Agreement) exercise all rights and
remedies which they may have hereunder or under any other Term Loan Document
or at law or in equity or otherwise. All such remedies shall be cumulative and
not exclusive.
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ARTICLE VIII.
MISCELLANEOUS
8.01. Holidays.
Except as otherwise provided herein, whenever any payment or
action to be made or taken hereunder or under the Term Notes, or the other
Term Loan Documents shall be stated to be due on a day which is not a Business
Day, such payment or action shall be made or taken on the next following
Business Day and such extension of time shall be included in computing
interest or fees, if any, in connection with such payment or action.
8.02. Amendments and Waivers.
No amendment or waiver of any provision of this Agreement or of
any of the other Term Loan Documents, nor consent to any departure by any
Borrower therefrom, shall in any event be effective unless the same shall be
consented to in writing by the Required Term Lenders, and then any such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which it was given; provided, however, that no amendment,
waiver or consent shall, unless consented to by all the Term Lenders in
writing, do any of the following: (a) amend the Agreement to (i) increase the
aggregate principal amount of the Term Loan; (ii) reduce the Interest Rate;
(iii) reduce or waive (A) any fees in which the Term Lenders share hereunder
or (B) the repayment of any Obligations due the Term Lenders; or (iv) extend
the maturity of the Obligations; (b) alter or amend this Section 8.02 or the
definition of "Collateral" or "Required Term Lenders;" or (c) release
Collateral in bulk, other than in connection with a release approved under the
Existing DIP Loan Agreement, without a corresponding reduction in the
Obligations to the Term Lenders. In all other respects, the Required Term
Lenders are authorized to take such actions or fail to take such actions if
the Required Term Lenders, in their discretion, deem such to be advisable and
in the best interests of the Term Lenders, including, but not limited to, the
termination of the Agreement upon the occurrence of an Event of Default. No
notice to or demand on the Borrowers in any case shall entitle the Borrowers
to any other or further notice or demand in similar or other circumstances.
8.03. No Implied Waiver; Cumulative Remedies
No course of dealing and no delay or failure of the Term Lenders
in exercising any right, power or privilege under this Agreement, the Term
Notes or any other Term Loan Document shall affect any other or future
exercise thereof or exercise of any other right, power or privilege; nor shall
any single or partial exercise of any such right, power or privilege or any
abandonment or discontinuance of steps to enforce such a right, power or
privilege preclude any further exercise thereof or of any other right, power
or privilege. The
37-
rights and remedies of the Term Lenders under this Agreement, the Term Notes
and the other Term Loan Documents are cumulative and not exclusive of any
rights or remedies which the Term Lenders have hereunder or thereunder or at
law or in equity or otherwise. The Term Lenders may exercise their rights and
remedies against the Borrowers and the Collateral as the Term Lenders may
elect, and regardless of the existence or adequacy of any other right or
remedy.
8.04. Notices.
(a) Unless otherwise provided herein, all notices, requests,
demands, directions and other communications (collectively "notices") under
the provisions of this Agreement, the Term Notes or any other Term Loan
Document shall be in writing and shall be mailed (by certified mail, postage
prepaid and return receipt requested), telecopied, or delivered and shall be
effective (i) if mailed, three days after being deposited in the mails, (ii)
if telecopied, when sent, confirmation received and (iii) if delivered, upon
delivery. All notices shall be sent to the applicable party at the address
stated on the signature page hereof or in accordance with the last unrevoked
written direction from such party to the other parties hereto.
(b) Without limiting Section 8.04 or any other provision of
this Agreement, the Term Lenders may rely, and shall be fully protected in
relying, on any notice purportedly made by or on behalf of the Borrowers and
the Term Lenders shall have no duty to verify the identity or authority of any
Person giving such notice. The preceding sentence shall apply to all notices
whether or not made in a manner authorized or required by this Agreement or
any other Term Loan Document.
8.05. Expenses; Taxes; Attorneys' Fees; Indemnification.
The Borrowers agree to pay or cause to be paid, on demand, and to
save the Term Lenders harmless against liability for the payment of, all
reasonable out-of-pocket expenses, regardless of whether the transactions
contemplated hereby are consummated, including but not limited to reasonable
fees and expenses of counsel for the Term Lenders incurred by the Term Lenders
in their capacity as such from time to time arising from or relating to: (a)
the negotiation, preparation, execution and delivery of this Agreement and the
other Term Loan Documents, (b) any requested amendments, waivers or consents
to this Agreement or the other Term Loan Documents whether or not such
documents become effective or are given, (c) the preservation and protection
of any of the Term Lenders' rights under this Agreement or the other Term Loan
Documents (other than the Intercreditor Agreement unless the Borrowers consent
thereto or the Borrowers reimburse the Agent or Existing DIP Lenders or their
representatives for costs in connection therewith, (d) the defense of any
claim or action asserted or brought against any Term Lender by any Person that
arises from or relates to this Agreement, any other Term Loan Document (other
than the Intercreditor Agreement unless the Borrowers consent thereto or the
Borrowers reimburse the
38-
Agent or Existing DIP Lenders or their representatives for costs in connection
therewith), such Term Lender's claims against the Borrowers, or any and all
matters in connection therewith, (e) the commencement or defense of, or
intervention in, any court proceeding arising from or related to this
Agreement or any other Term Loan Document (other than the Intercreditor
Agreement unless the Borrowers consent thereto or the Borrowers reimburse the
Agent or Existing DIP Lenders or their representatives for costs in connection
therewith), (f) the filing of any petition, complaint, answer, motion or other
pleading by any Term Lender, or the taking of any action in respect of the
Collateral or other security, in connection with this Agreement or any other
Term Loan Document, (g) the protection, collection, lease, sale, taking
possession of or liquidation of, any Collateral or other security in
connection with this Agreement or any other Term Loan Document, (h) any
attempt to enforce any lien or security interest in any Collateral or other
security in connection with this Agreement or any other Term Loan Document,
(i) any attempt to collect from the Borrowers, (j) the receipt of any advice
with respect to any of the foregoing, (k) all Environmental Liabilities and
Costs arising from or in connection with the past, present or future
operations of any of the Borrowers involving any damage to real or personal
property or natural resources or harm or injury alleged to have resulted from
any Release of Hazardous Materials on, upon or into such property, (l) any
costs or liabilities incurred in connection with the investigation, removal,
cleanup and/or remediation of any Hazardous Materials present or arising out
of the operations of any facility of the Borrowers, or their Subsidiaries, or
(m) any costs or liabilities incurred in connection with any Environmental
Lien. Without limitation of the foregoing or any other provision of any Term
Loan Document: if the Borrowers fail to perform any covenant or agreement
contained herein or in any other Term Loan Document, any Term Lender may
itself perform or cause performance of such covenant or agreement, and the
expenses of such Term Lender incurred in connection therewith shall be
reimbursed on demand by the Borrowers. The Borrowers agree to indemnify and
defend the Term Lenders and their directors, officers, employees, partners,
counsel and agents and any affiliate of any of the foregoing (collectively,
the "Indemnified Parties") from, and hold each of them harmless against, any
and all losses, liabilities, claims, damages, costs or expenses of any nature
whatsoever (including, without limitation, fees, expenses and disbursements of
counsel and amounts paid in settlement) incurred by, imposed upon or asserted
against any of them arising out of or by reason of any investigation,
litigation or other proceeding brought or threatened relating to, or otherwise
arising out of or relating to, the execution of this Agreement or any other
Term Loan Document (other than the Intercreditor Agreement), the transactions
contemplated hereby or thereby or the Term Loan hereunder (including, but
without limitation, any use made or proposed to be made by the Borrowers of
the proceeds thereof) but excluding any such losses, liabilities, claims,
damages, costs or expenses to the extent finally judicially determined, by a
final and non-appealable order of a court of competent jurisdiction, to have
directly resulted from the gross negligence or willful misconduct of the
Indemnified Party or of any other Indemnified Party of which such Indemnified
Party is a director, officer, employee, partner, counsel, agent or affiliate.
39-
8.06. Several and Not Joint; Limited Liability
(a) Notwithstanding anything herein or in any other Term
Loan Document to the contrary, the parties hereto agree that the obligations,
liabilities and indemnities of each Term Lender hereunder shall be several and
not joint, and no Term Lender shall have any liability hereunder for any
breach by any other Term Lender of any obligation of such Term Lender set
forth herein or in any other Term Loan Document.
(b) The Borrowers hereby acknowledge and agree that neither
this Agreement nor any other Term Loan Document is being executed on behalf of
the partners of any Term Lender that is a limited partnership as individuals
and the obligations of this Agreement are not binding upon any of the
partners, officers, employees or beneficiaries of such Term Lender
individually but are binding only upon the assets and property of such Term
Lender, and the Borrowers agree that no beneficiary, partner, employee or
officer of such Term Lender may be held personally liable or responsible for
any obligations of such Term Lender arising out of this Agreement or any other
Term Loan Document. With respect to obligations of each Term Lender arising
out of this Agreement or any other Term Loan Document, the Borrowers shall
look for payment or satisfaction of any claim solely to the assets and
property of such Term Lender.
(c) Magten represents and warrants to the Borrowers that it
has full power and authority to execute and deliver this Agreement and each
other Term Loan Document as agent or as general partner, as applicable, for
the Term Lenders on whose behalf Magten is executing this Agreement as set
forth on the signature pages hereto. Except for the foregoing representations
and warranties, the Borrowers hereby acknowledge and agree that Magten shall
not have any personal obligation or liability to the Borrowers under this
Agreement or any other Term Loan Document but that it is acting solely for and
on behalf of the aforementioned Term Lenders, and without limiting the
generality of the foregoing, the Borrowers shall have no recourse against
Magten for the performance or satisfaction of any obligation under this
Agreement or any other Term Loan Document, but shall look for payment or
satisfaction of any claim arising under this Agreement or any other Term Loan
Document solely to the assets and properties of the Term Lenders.
8.07. Application
Except to the extent, if any, expressly set forth in this
Agreement or in the Term Loan Documents, each Term Lender shall have the right
to apply any payment received or applied by it in connection with the
Obligations to such of the Obligations then due and payable as it may elect.
40-
8.08. Sharing of Proceeds of Collateral
If any Term Lender sells or otherwise disposes of Collateral or
otherwise receives any payment in excess of its Percentage Interest in the
Term Loan, the proceeds of such sale or other disposition or such excess
payment shall be distributed by such Term Lender to each Term Lender based
upon each Term Lender's Percentage Interest.
8.09. Severability
The provisions of this Agreement are intended to be severable. If
any provision of this Agreement shall be held invalid or unenforceable in
whole or in part in any jurisdiction such provision shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
8.10. Governing Law
This Agreement and the Term Notes shall be deemed to be contracts
under the laws of the State of New York, without regard to choice of law
principles, and for all purposes shall be governed by and construed and
enforced in accordance with the laws of said State.
8.11. Prior Understandings
This Agreement supersedes all prior understandings and agreements,
whether written or oral, among the parties hereto relating to the transactions
provided for herein, other than the Final Order.
8.12. Duration; Survival.
All representations and warranties of the Borrowers contained
herein or made in connection herewith shall survive the making of the Term
Loan and shall not be waived by the execution and delivery of this Agreement,
the Term Notes or any other Term Loan Document, any investigation by or
knowledge of the Term Lenders, the making of any Term Loan hereunder, or any
other event whatsoever. All covenants and agreements of the Borrowers
contained herein shall continue in full force and effect from and after the
date hereof until the Obligations have been paid in full in cash. Without
limitation, it is understood that all obligations of the Borrowers to make
payments to or indemnify the Term Lenders (including, without limitation,
obligations arising under Section 8.05 hereof) shall survive the payment in
full of the Term Notes and all Obligations, the termination of this Agreement
and all other events whatsoever and whether or not any Term Loans are made
hereunder.
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8.13. Participations
(a) The Borrowers acknowledge that the Term Lenders may sell
participations in the loans and extensions of credit made to the Borrowers
hereunder provided that any such sale does not increase the Borrowers'
obligations under Section 2.11 hereof.
(b) The Borrowers authorize each Term Lender to disclose to
any participant or permitted assignee (each, a "Transferee") and any
prospective Transferee who agrees in writing for the benefit of the Borrowers
to be bound by the provisions of Section 8.13(c) any and all financial
information in such Term Lender's possession concerning the Borrowers and
their affiliates which has been delivered to such Term Lender by or on behalf
of the Borrowers pursuant to this Agreement or which has been delivered to
such Term Lender by or on behalf of the Borrowers in connection with such Term
Lender's credit evaluation of the Borrowers and their affiliates prior to
entering into this Agreement.
(c) Each Term Lender agrees to keep information obtained by
it pursuant hereto confidential in accordance with such Term Lender's, as the
case may be, customary practices and agrees that it will only use such
information in connection with the transactions contemplated by this Agreement
and not disclose any of such information other than (i) to such Term Lender's,
as the case may be, employees, representatives, agents and affiliates who are
or are expected to be involved in the evaluation of such information in
connection with the transactions contemplated by this Agreement and who are
advised of the confidential nature of such information, (ii) to the extent
such information presently is or hereafter becomes available to such Term
Lender, as the case may be, on a non-confidential basis from a source other
than the Borrowers, (iii) to the extent disclosure is required by law,
regulation or judicial order or requested or required by bank regulators or
auditors, or (iv) to Transferees or any prospective Transferee as provided in
Section 8.13(b).
(d) No Transferee shall have any rights under Section 2.11.
8.14. Counterparts
This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts each of which, when
so executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
8.15. Successors and Assigns
This Agreement and the other Term Loan Documents shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
8.16. Waiver of Jury Trial
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BY ITS EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
BORROWERS AND THE TERM LENDERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT,
THE TERM NOTES OR ANY OTHER TERM LOAN DOCUMENT, ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE TERM LENDERS OR ANY
BORROWER IN CONNECTION HEREWITH OR THEREWITH. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR EACH PARTY HERETO TO ENTER INTO THIS AGREEMENT.
8.17. Right of Setoff
Upon the occurrence and during the continuance of any Event of
Default, each Term Lender may, and is hereby authorized to, at any time from
time to time, without notice to the Borrowers (any such notice being expressly
waived by the Borrowers) and to the fullest extent permitted by law, set off
and apply any and all deposits (general or special, time or demand, provision
or final) at any time held and other indebtedness at any time owing by such
Term Lender to or for the credit or the account of the Borrowers against any
and all Obligations of the Borrowers now or hereafter existing under the Term
Loan Documents, irrespective of whether or not such Term Lender shall have
made any demand hereunder or thereunder and although such Obligations may be
contingent or unmatured. Each Term Lender agrees promptly to notify the
Borrowers after any such setoff and application made by such Term Lender;
provided, however, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of the Term Lenders under
this Section 8.17 are in addition to the other rights and remedies (including,
without limitation, other rights of setoff under applicable law or otherwise)
which the Term Lenders may have.
8.18. Headings
Section headings herein are included for convenience of reference
only and shall not constitute a part of this Agreement for any other purpose.
43-
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed and delivered this Agreement as of the date first
above written.
BORROWERS:
HARVARD INDUSTRIES, INC.,
as a Debtor and Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
THE XXXXXXXX-XXXXXX CORPORATION,
as Debtor and Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
XXXXXX AUTOMOTIVE, INC.,
as a Debtor and Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
XXXXX-ALBION CORPORATION
as a Debtor and Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
44-
XXXXXXX-XXXXXX, INC.,
as a Debtor and Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
XXXXXXX-XXXXXX GREENEVILLE, INC.,
as a Debtor and Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
XXXXXXX-XXXXXX POTTSTOWN, INC.,
as a Debtor and Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
XXXXXXX-XXXXXX TECHNOLOGIES, INC.,
as a Debtor and Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
XXXXXXX-XXXXXX TOLEDO, INC., as a Debtor
and Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
45-
Address for Notices:
0000 Xxxxx Xxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxx
With a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx
LENDERS
MELLON BANK, N.A., solely in its capacity Percentage Interest: 27.08%
as Trustee for GENERAL MOTORS EMPLOYEES
DOMESTIC GROUP PENSION TRUST (as directed by
Magten Asset Management Corp. and not in its
individual capacity)
As Lender
By: /s/ Xxxxxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxxxxx X. Xxxx
Title: Authorized Signatory
DEPARTMENT OF PENSIONS-CITY OF LOS ANGELES Percentage Interest: 17.24%
as Lender
By: MAGTEN ASSET MANAGEMENT
CORP., as attorney-in-fact
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Magten Asset Management
The decision to participate in this investment, any representations made herein
by the participant, and any actions taken hereunder by the participant has/
have been made solely at the direction of the investment fiduciary who has
sole investment discretion with respect to this investment.
46-
XXXXXX MASTER RETIREMENT TRUST Percentage Interest: 10.44%
as Lender
By: MAGTEN ASSET MANAGEMENT
CORP., as attorney-in-fact
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Magten Asset Management
SATURN FUND, LTD. Percentage Interest: 2.52%
as Lender
By: MAGTEN ASSET MANAGEMENT
CORP., as attorney-in-fact
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Magten Asset Management
MAGTEN OFFSHORE FUND LTD. Percentage Interest: 3.36%
as Lender
By: MAGTEN ASSET MANAGEMENT CORP.,
as attorney-in-fact
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Magten Asset Management
MAGTEN PARTNERS, L.P. Percentage Interest: 2.52%
as Lender
By: MAGTEN ASSET MANAGEMENT
CORP., its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Magten Asset Management
47-
MAGTEN GROUP TRUST Percentage Interest: 0.84%
as Lender
By: MAGTEN ASSET MANAGEMENT
CORP., as its attorney-in-fact
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Magten Asset Management
MUTUAL BEACON FUND, a series of Percentage Interest: 12.00%
FRANKLIN MUTUAL SERIES FUND, INC.
as Lender
By: FRANKLIN MUTUAL ADVISERS, INC.,
its Advisor
By: /s/
---------------------------------
Name: XXXXX X. XXXXXXXXX
Title: CHIEF OPERATING OFFICER
& SENIOR VICE PRESIDENT
MUTUAL QUALIFIED FUND, a series of Percentage Interest: 6.8%
FRANKLIN MUTUAL SERIES FUND, INC.
as Lender
By: FRANKLIN MUTUAL ADVISERS, INC.,
its Advisor
By: /s/
---------------------------------
Name: XXXXX X. XXXXXXXXX
Title: CHIEF OPERATING OFFICER
& SENIOR VICE PRESIDENT
48-
FRANKLIN MUTUAL BEACON FUND, a subfund of Percentage Interest: 0.7%
TEMPLETON GLOBAL STRATEGY FUNDS
as Lender
By: FRANKLIN MUTUAL ADVISERS, INC.,
its Advisor
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: XXXXX X. XXXXXXXXX
Title: CHIEF OPERATING OFFICER
& SENIOR VICE PRESIDENT
MUTUAL BEACON FUND, Percentage Interest 0.5%
as Lender
By: FRANKLIN MUTUAL ADVISERS, INC.,
its Advisor
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: XXXXX X. XXXXXXXXX
Title: CHIEF OPERATING OFFICER
& SENIOR VICE PRESIDENT
PACHOLDER VALUE OPPORTUNITY FUND, L.P. Percentage Interest: 6.0%
as Lender
By: /s/ Xxxxx X. Xxxxxxxx Xx.
-----------------------------------
Name: Xxxxx X. Xxxxxxxx Xx.
Title: Manager of General Partner
PACHOLDER HERON, L.P. Percentage Interest: 2.0%
as Lender
By: /s/ Xxxxx X. Xxxxxxxx Xx.
-----------------------------------
Name: Xxxxx X. Xxxxxxxx Xx.
Title: Manager of General Partner
49-
USF&G PACHOLDER FUND, INC. Percentage Interest: 8.0%
as Lender
By: /s/ Xxxxx X. Xxxxxxxx Xx.
-----------------------------------
Name: Xxxxx X. Xxxxxxxx Xx.
Title: Manager of General Partner
Addresses for Notices:
Magten Asset Management Corp.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx
Pacholder Associates, Inc.
0000 Xxxxxxxxxx Xxxx
Bank Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxxx
50-