Exhibit 4.1
WARRANT AGREEMENT
by and between
LEAR CORPORATION
and
Mellon Investor Services LLC,
as Warrant Agent
Dated as
of November 9, 2009
WARRANT AGREEMENT
This WARRANT AGREEMENT (as amended, supplemented, amended and restated or otherwise modified
from time to time, this
Warrant Agreement
), is
entered into as of November 9, 2009, by
and between LEAR CORPORATION, a Delaware corporation (the
Company
), and Mellon Investor
Services LLC, a New Jersey limited liability company, as warrant agent (together with any successor
appointed pursuant to Section 19 hereof, the
Warrant Agent
).
WHEREAS
, pursuant to the terms and conditions of the Joint Plan of Reorganization of Lear
Corporation and its debtor subsidiaries under chapter 11 of title 11 of the United States Code (the
Bankruptcy Code
) filed on August 14, 2009 in the United States Bankruptcy Court for the
Southern District of New York, Case No. 09-14326 (as may be amended, supplemented or otherwise
modified from time to time, the
Plan
), the Company proposes to issue Warrants (the
Warrants
) entitling the holders thereof to purchase up to 8,157,250 shares of common
stock, par value $0.01 per share, of the Company (
Common Stock
together with any other
securities, cash or other property that may be issuable upon exercise of a Warrant as shall result
from the adjustments specified in
Section 12
hereof) at an exercise price of $0.01 per
share of Common Stock, as may be adjusted pursuant to
Section 12
hereof (the
Exercise
Price
);
WHEREAS
, the Warrants are being issued pursuant to, and upon the terms and conditions set
forth in, the Plan in an offering in reliance on the exemption afforded by section 1145 of the
Bankruptcy Code from the registration requirements of the Securities Act of 1933, as amended (the
Securities Act
), and of any applicable state securities or blue sky laws;
WHEREAS
, the Company desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing so to act, in connection with the issuance of Warrants and other matters
as provided herein; and
WHEREAS
, for purposes of this Warrant Agreement, person shall be interpreted broadly to
include an individual, corporation, partnership, joint venture, association, joint stock company,
limited liability company, limited liability partnership, national banking association, trust,
trustee, unincorporated organization, government, governmental unit, agency, or political
subdivision thereof, or other entity.
NOW, THEREFORE
, in consideration of the premises and the mutual agreements herein set forth,
the parties hereto agree as follows:
SECTION 1
Appointment of Warrant Agent
.
The Company hereby appoints the Warrant Agent
to act as warrant agent for the Company in respect of the Warrants upon the express terms and
subject to the conditions herein set forth (and no implied terms), and the Warrant Agent hereby
accepts such appointment.
SECTION 2
Issuance of Warrants
.
In accordance with
Section 5
hereof and the
Plan and subject to the next sentence, the Company will cause to be issued to the Depository (as
defined below), one or more Global Warrant Certificates (as defined below) evidencing the Warrants.
At the election of a holder of Warrants and in lieu of holding Warrants through the
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Depository, such holder may elect to be issued Warrants by book-entry registration on the
books and records of the Warrant Agent (
Book-Entry Warrants
) and such Warrants shall be
evidenced by statements issued by the Warrant Agent from time to time to the registered holder of
book-entry Warrants reflecting such book-entry position (the
Warrant Statement
). Each
Warrant entitles the holder, upon proper exercise and payment of the applicable Exercise Price, to
receive from the Company, one share of Common Stock. The shares of Common Stock or (as provided
pursuant to
Section 12
hereof) other shares of capital stock deliverable upon proper
exercise of the Warrants are referred to herein as the
Warrant Shares
. The words
holder
or
holders
as used herein in respect of any Warrants or Warrant Shares,
shall mean the registered holder or registered holders thereof.
SECTION 3
Warrant Certificates
.
Subject to
Section 6
of this Agreement, the
Warrants shall be issued (1) via book-entry registration on the books and records of the Warrant
Agent and evidenced by a Warrant Statement, and/or (2) in the form of one or more global
certificates (the
Global Warrant Certificates
), in substantially the form set forth in
Exhibit A
attached hereto. The Warrant Statements and Global Warrant Certificates may bear
such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Warrant Agreement, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be required to comply with
any law or with any rules made pursuant thereto or with any rules of any securities exchange or as
may, consistently herewith, be determined by (i) in the case of Global Warrant Certificates, the
Appropriate Officers (as hereinafter defined) executing such Global Warrant Certificates, as
evidenced by their execution of the Global Warrant Certificates, or (ii) in the case of a Warrant
Statement, any Appropriate Officer, and all of which shall be reasonably acceptable to the Warrant
Agent. The Global Warrant Certificates shall be deposited on or after the date hereof with, or
with the Warrant Agent as custodian for, The Depository Trust Company (the
Depository
)
and registered in the name of Cede & Co., as the Depositorys nominee. Each Global Warrant
Certificate shall represent such number of the outstanding Warrants as specified therein, and each
shall provide that it shall represent the aggregate amount of outstanding Warrants from time to
time endorsed thereon and that the aggregate amount of outstanding Warrants represented thereby may
from time to time be reduced or increased, as appropriate, in accordance with the terms of this
Warrant Agreement.
SECTION 4
Execution of Warrant Certificates
.
Global Warrant Certificates shall be
signed on behalf of the Company by its Chairman of the Board, its Chief Executive Officer, or any
Vice President, and by the Secretary or any Assistant Secretary (each, an
Appropriate
Officer
). Each such signature upon the Global Warrant Certificates may be in the form of a
facsimile or other electronically transmitted signature (including, without limitation, electronic
transmission in portable document format (.pdf)) of any such Appropriate Officer and may be
imprinted or otherwise reproduced on the Global Warrant Certificates and for that purpose the
Company may adopt and use the facsimile or other electronically transmitted signature of any
Appropriate Officer who shall have been an Appropriate Officer at the time of entering into this
Warrant Agreement. If any Appropriate Officer who shall have signed any of the Global Warrant
Certificates shall cease to be such Appropriate Officer before the Global Warrant Certificates so
signed shall have been countersigned by the Warrant Agent or delivered by the Company, such Global
Warrant Certificates nevertheless may be countersigned and delivered as
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though such Appropriate Officer had not ceased to be such Appropriate Officer of the Company;
and any Global Warrant Certificate may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Global Warrant Certificate, shall be a proper Appropriate
Officer of the Company to sign such Global Warrant Certificate, although at the date of the
execution of this Warrant Agreement any such person was not such Appropriate Officer.
Global Warrant Certificates shall be dated the date of countersignature by the Warrant Agent
and shall represent one or more whole Warrants.
SECTION 5
Registration and Countersignature
.
Upon receipt of a written order of the
Company, the Warrant Agent, on behalf of the Company, shall (i) register in the Warrant Register
(as defined below) the Book-Entry Warrants as well as any Global Warrant Certificates and exchanges
and transfers of outstanding Warrants in accordance with the procedures set forth in this Warrant
Agreement and (ii) upon receipt of the Global Warrant Certificates duly executed on behalf of the
Company, countersign one or more Global Warrant Certificates evidencing Warrants and shall deliver
such Global Warrant Certificates to or upon the written order of the Company. Such written order
of the Company shall specifically state the number of Warrants that are to be issued as Book-Entry
Warrants and the number of Warrants that are to be issued as one or more Global Warrant
Certificates. A Global Warrant Certificate shall be, and shall remain, subject to the provisions
of this Warrant Agreement until such time as all of the Warrants evidenced thereby shall have been
duly exercised or shall have expired or been canceled in accordance with the terms hereof. Each
holder of Warrants shall be bound by all of the terms and provisions of this Warrant Agreement (a
copy of which is available on request to the Secretary of the Company) as fully and effectively as
if such holder had signed the same.
No Global Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby
shall be exercisable, until such Global Warrant Certificate has been countersigned by the manual or
facsimile signature of the Warrant Agent. Such signature by the Warrant Agent upon any Global
Warrant Certificate executed by the Company shall be conclusive evidence that such Global Warrant
Certificate so countersigned has been duly issued hereunder.
The Warrant Agent shall keep, at an office designated for such purpose, books (the
Warrant Register
) in which, subject to such reasonable regulations as it may prescribe,
it shall register the Book-Entry Warrants as well as any Global Warrant Certificates and exchanges
and transfers of outstanding Warrants in accordance with the procedures set forth in
Section
6
of this Warrant Agreement, all in form satisfactory to the Company and the Warrant Agent.
Prior to due presentment for registration of transfer or exchange of any Warrant in accordance
with the procedures set forth in this Warrant Agreement, the Warrant Agent and the Company may deem
and treat the person in whose name any Warrant is registered as the absolute owner of such Warrant
(notwithstanding any notation of ownership or other writing made in a Global Warrant Certificate by
anyone), for the purpose of any exercise thereof, any distribution to the holder of the Warrant
thereof and for all other purposes, and neither the Warrant Agent nor the Company shall be affected
by notice to the contrary.
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SECTION 6
Registration of Transfers and Exchanges
.
(a)
Transfer and Exchange of Global Warrant Certificates or Beneficial Interests
Therein
. The transfer and exchange of Global Warrant Certificates or beneficial interests
therein shall be effected through the Depository, in accordance with this Warrant Agreement and the
procedures of the Depository therefor.
(b)
Exchange of a Beneficial Interest in a Global Warrant Certificate for a Book Entry
Warrants
.
(i) Any holder of a beneficial interest in a Global Warrant Certificate may, upon request,
exchange such beneficial interest for a Book-Entry Warrant. Upon receipt by the Warrant Agent from
the Depository or its nominee of written instructions or such other form of instructions as is
customary for the Depository on behalf of any person having a beneficial interest in a Global
Warrant Certificate, the Warrant Agent shall cause, in accordance with the standing instructions
and procedures existing between the Depository and Warrant Agent, the number of Warrants
represented by the Global Warrant Certificate to be reduced by the number of Warrants to be
represented by the Book-Entry Warrants to be issued in exchange for the beneficial interest of such
person in the Global Warrant Certificate and, following such reduction, the Warrant Agent shall
register in the name of the holder a Book-Entry Warrant and deliver to said Warrant holder a
Warrant Statement.
(ii) Book-Entry Warrants issued in exchange for a beneficial interest in a Global Warrant
Certificate pursuant to this
Section 6(b)
shall be registered in such names as the
Depository, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Warrant Agent. The Warrant Agent shall deliver such Warrant Statements to the persons
in whose names such Warrants are so registered.
(c)
Transfer and Exchange of Book Entry Warrants
. Book-Entry Warrants surrendered for
exchange or for registration of transfer shall be cancelled by the Warrant Agent. Such cancelled
Book-Entry Warrants shall then be disposed of by or at the direction of the Company in accordance
with applicable law. When Book-Entry Warrants are presented to or deposited with the Warrant Agent
with a written request:
(i) to register the transfer of the Book-Entry Warrants; or
(ii) to exchange such Book-Entry Warrants for an equal number of Book-Entry Warrants of other
authorized denominations,
then in each case the Warrant Agent shall register the transfer or make the exchange as requested
if its requirements for such transactions are met;
provided
,
however
, that the Warrant Agent has
received a written instruction of transfer in form satisfactory to the Warrant Agent, duly executed
by the holder thereof or by his attorney, duly authorized in writing.
(d)
Exchange or Transfer of a Book-Entry Warrant for a Beneficial Interest in a Global
Warrant Certificate
. Upon receipt by the Warrant Agent of appropriate written instruments of
transfer with respect to a Book-Entry Warrant, in form satisfactory to the Warrant
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Agent, together with written instructions directing the Warrant Agent to make, or to direct
the Depository to make, an endorsement on the Global Warrant Certificate to reflect an increase in
the number of Warrants represented by the Global Warrant Certificate equal to the number of
Warrants represented by such Book-Entry Warrant (such instruments of transfer and instructions to
be duly executed by the holder thereof or the duly appointed legal representative thereof or by his
attorney, duly authorized in writing, such signatures to be guaranteed by an eligible guarantor
institution to the extent required by the Warrant Agent or the Depositary), then the Warrant Agent
shall cancel such Book-Entry Warrant on the Warrant Register and cause, or direct the Depository to
cause, in accordance with the standing instructions and procedures existing between the Depository
and the Warrant Agent, the number of Warrants represented by the Global Warrant Certificate to be
increased accordingly. If no Global Warrant Certificates are then outstanding, the Company shall
issue, and the Warrant Agent shall countersign, a new Global Warrant Certificate representing the
appropriate number of Warrants.
(e)
Restrictions on Transfer and Exchange of Global Warrant Certificates
.
Notwithstanding any other provisions of this Warrant Agreement (other than the provisions set forth
in
Section 6(f)
), unless and until it is exchanged in whole for a Book-Entry Warrant, a
Global Warrant Certificate may not be transferred as a whole except by the Depository to a nominee
of the Depository or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or a nominee of such
successor Depository.
(f)
Book-Entry Warrants
. If at any time:
(i) the Depository for the Global Warrant Certificates notifies the Company that the
Depository is unwilling or unable to continue as Depository for the Global Warrant Certificates and
a successor Depository for the Global Warrant Certificates is not appointed by the Company within
90 days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the Warrant Agent in writing that all
Warrants shall be exclusively in the form of Book-Entry Warrants, then the Warrant Agent, upon
written instructions signed by an Appropriate Officer of the Company and all other necessary
information, shall register Book-Entry Warrants, in an aggregate number equal to the number of
Warrants represented by the Global Warrant Certificates, in exchange for such Global Warrant
Certificates, in such names and in such amounts as directed by the Depository or, in the absence of
instructions from the Depository, the Company.
(g)
Cancellation of Global Warrant Certificate
. At such time as all beneficial
interests in Global Warrant Certificates have either been exchanged for Book-Entry Warrants,
redeemed, repurchased or cancelled, all Global Warrant Certificates shall be returned to, or
cancelled and retained pursuant to applicable law by, the Warrant Agent.
(h)
Obligations with Respect to Transfers and Exchanges of Warrants
.
(i) To permit registrations of transfers and exchanges, the Company shall execute and the
Warrant Agent is hereby authorized to countersign Global Warrant Certificates and the Warrant Agent
is hereby authorized to register Book-Entry Warrants, in
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accordance with the provisions of
Sections 3
and
4
hereof and this
Section 6
and for the purpose of any distribution of additional Global Warrant Certificates
contemplated by
Section 12
hereof.
(ii) All Book-Entry Warrants and Global Warrant Certificates issued upon any registration of
transfer or exchange of Book-Entry Warrants or Global Warrant Certificates shall be the valid
obligations of the Company, entitled to the same benefits under this Warrant Agreement as the
Book-Entry Warrants or Global Warrant Certificates surrendered upon such registration of transfer
or exchange.
(iii) No service charge shall be made to a holder of Warrants for any registration, transfer
or exchange but the Company may require payment of a sum sufficient to cover any stamp or other tax
or other charge that may be imposed on the holder in connection with any such exchange or
registration of transfer. The Warrant Agent shall have no obligation to effect an exchange or
register a transfer unless and until any payments required by the immediately preceding sentence
have been made.
(iv) So long as the Depository, or its nominee, is the registered owner of a Global Warrant
Certificate, the Depository or such nominee, as the case may be, may be treated by the Company, the
Warrant Agent and any agent of the Company or the Warrant Agent as the sole owner or holder of the
Warrants represented by such Global Warrant Certificate for all purposes under this Warrant
Agreement. Except as provided in
Sections 6(b) and 6(f)
hereof upon the exchange of a
beneficial interest in a Global Warrant Certificate for a Book-Entry Warrants, owners of beneficial
interests in a Global Warrant Certificate will not be entitled to have any Warrants registered in
their names, and will not receive or be entitled to receive physical delivery of any such Warrants
and will not be considered the owners or holders thereof under the Warrants or this Warrant
Agreement. Neither the Company nor the Warrant Agent, in its capacity as registrar for such
Warrants, will have any responsibility or liability for any aspect of the records relating to
beneficial interests in a Global Warrant Certificate or for maintaining, supervising or reviewing
any records relating to such beneficial interests. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Warrant Agent or any agent of the Company or the Warrant Agent from
giving effect to any written certification, proxy or other authorization furnished by the
Depository or impair the operation of customary practices of the Depository governing the exercise
of the rights of a holder of a beneficial interest in a Global Warrant Certificate.
(v) Subject to
Sections 6(b)
,
(c)
and
(d)
hereof and this
Section
6(h)
, the Warrant Agent shall, upon receipt of all information required to be delivered
hereunder, from time to time register the transfer of any Book-Entry Warrants in the Warrant
Register and the transfer of any Global Warrant Certificates in the Warrant Register, upon
surrender of the Global Warrant Certificates, representing such Warrants at the Warrant Agent
Office referred to in
Section 20
hereof (the
Warrant Agent Office
), duly
endorsed, and accompanied by a completed form of assignment (or with respect to a Book-Entry
Warrant, only such completed form of assignment), duly signed by the holder thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney, such signature to be
guaranteed by an eligible guarantor institution to the extent required by the Warrant Agent or the
Depositary.
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Upon any such registration of transfer, a new Global Warrant Certificate or a Warrant
Statement, as the case may be, shall be issued to the transferee.
SECTION 7
Acknowledgment; Securities Law Compliance
.
Each Warrant holder, by its
acceptance of any Warrant under this Warrant Agreement, acknowledges and agrees that the Warrants
were issued, and the Warrant Shares issuable upon exercise thereof shall be issued, pursuant to an
exemption from the registration requirement of Section 5 of the Securities Act provided by Section
1145 of the Bankruptcy Code, and to the extent that a Warrant holder (or holder of Warrant Shares)
is an underwriter as defined in Section 1145(b)(1) of the Bankruptcy Code, such holder may not be
able to sell or transfer any Warrants or Warrant Shares in the absence of an effective registration
statement under the Securities Act or an exemption from registration thereunder.
SECTION 8
Terms of Warrants; Exercise of Warrants
.
(a) Subject to the terms of this Warrant Agreement (including without limitation,
Section 12(d)
), each Warrant holder shall have the right, which may be exercised at any
time, and from time to time, in whole or in part, during the period (x) commencing on the business
day (as defined below) immediately following a period of 30 consecutive Trading Days ending prior
to, but not including, such business day during which the Closing Price of the Common Stock for at
least 20 of the Trading Days within such 30-day period is equal to or greater than $39.63 (as
adjusted from time to time in accordance with the terms hereof, the
Trigger Price
) and
(y) ending at 5:00 p.m. New York City Time, on
November
, 2014 (the
Expiration Date
),
to exercise each Warrant and receive from the Company the number of fully paid and nonassessable
Warrant Shares which the holder may at the time be entitled to receive on exercise of such Warrant
and payment of the aggregate Exercise Price then in effect for such Warrant Shares. In addition,
prior to the delivery of any Warrant Shares that the Company shall be obligated to deliver upon
proper exercise of the Warrants, the Company shall comply with all applicable federal and state
laws, rules and regulations which require action to be taken by the Company. Subject to the terms
and conditions set forth herein, the holder may exercise the Warrants by:
(i) providing written notice of such election (the
Warrant Exercise Notice
) to
exercise the Warrants to the Company and the Warrant Agent no later than 5:00 p.m. New York City
time, on the Expiration Date, which Warrant Exercise Notice shall be in the form of an election to
purchase Warrant Shares substantially set forth either (x) in
Exhibit B-1
hereto, properly
completed and executed by the holder; provided that such written notice may only be submitted by a
holder who holds Book-Entry Warrants or (y) in
Exhibit B-2
hereto, properly completed and
executed by the holder; provided that such written notice may only be submitted with respect to
Warrants held through the book-entry facilities of the Depository, by or through persons that are
direct participants in the Depository; and
(ii) delivering no later than 5:00 p.m. New York City time, on the business day immediately
prior to the applicable Settlement Date (as defined below), such Warrants to the Warrant Agent by
book-entry transfer through the facilities of the Depository, if such Warrants are represented by a
Global Warrant Certificate; and
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(iii) paying the applicable aggregate Exercise Price for all Warrants being exercised (the
Exercise Amount
), together with all applicable taxes and charges.
The date three business days after a Warrant Exercise Notice is delivered is referred to for all
purposes under this Warrant Agreement as the
Settlement Date
.
(b) For purposes of this
Section 8
, the following terms shall have the meanings set
forth below:
Closing Price
means on any particular date (a) if the Common Stock is then listed or
quoted on a Trading Market, (i) the closing price per share of Common Stock on such date on the
principal Trading Market (as reported by Bloomberg L.P. or a similar organization or agency
succeeding to its functions of reporting prices) or (ii) if there shall have been no sales of
Common Stock on such principal Trading Market on such day, the average of the reported closing bid
and asked prices per share of Common Stock on such principal Trading Market (as reported by
Bloomberg L.P. or a similar organization or agency succeeding to its functions of reporting
prices), (b) if the Common Stock is not then listed or quoted on a Trading Market and if prices for
the Common Stock are then reported in the pink sheets published by Pink OTC Markets, Inc. (or a
similar organization or agency succeeding to its functions of reporting prices), the average of the
reported closing bid and asked prices per share of Common Stock so reported or (c) if the shares of
Common Stock are not then publicly traded the fair market value as of such date of a share of
Common Stock as reasonably determined in good faith by the Board of Directors of the Company.
Trading Day
means (a) if the Common Stock is listed or quoted on a Trading Market, a
day on which the principal Trading Market is open for business or (b) if the Common Stock is not
listed or quoted on a Trading Market, a business day.
Trading Market
means any of the following markets or exchanges on which the Common
Stock is listed or quoted for trading on the date in question: the NYSE Amex Equities, the Nasdaq
Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange or the OTC Bulletin Board.
(c) To the extent a Warrant Exercise Notice is delivered in respect of a Warrant prior to 5:00
p.m., New York City time, on the Expiration Date, but the deliveries and payments specified in
Sections 8(a)(ii)
and
8(a)(iii)
above are effected thereafter but no later than
5:00 p.m., New York City time, on the Settlement Date, the Warrants shall be nonetheless deemed
exercised prior to the Expiration Date for the purposes of this Warrant Agreement.
(d) Subject to the adjustments set forth in
Section 12
hereof, each Warrant, when
exercised, will entitle the holder thereof to purchase one share of Common Stock at the Exercise
Price then in effect. Each Warrant not exercised pursuant to this Warrant Agreement prior to 5:00
p.m., New York City time, on the Expiration Date shall become void and all rights thereunder and
all rights in respect thereof under this Warrant Agreement shall cease as of such time.
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(e) Subject to
Section 8(f)
, the Exercise Amount shall be payable in lawful money of
the United States of America either (i) by certified or official bank check made payable to the
order of the Company or (ii) by wire transfer in immediately available funds to an account arranged
with the Company prior to exercise.
(f) In connection with the exercise of Warrants by the holder thereof, such holder shall have
the right, in lieu of paying the Exercise Amount for such Warrants in cash (a
Cashless
Exercise
), to instruct the Company to reduce the number of Warrant Shares issuable to such
holder upon exercise of such Warrants by delivering to such holder a number of Warrant Shares
determined in accordance with the following formula:
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Warrant Shares
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Issuable Following a
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where:
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P
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Cashless Exercise
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C
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For purposes this
Section 8(f)
, the above symbols shall have the following meanings
with respect to an exercise of Warrants by a holder thereof:
W means the aggregate number of Warrant Shares issuable to such holder upon exercise of such
Warrants prior to any reduction pursuant to this
Section 8(f)
;
N means the aggregate number of Warrant Shares to be subtracted from the aggregate number of
Warrant Shares issuable to such holder upon the exercise of such Warrants;
P means the Exercise Amount applicable to the exercise of such Warrants; and
C means the Closing Price on the date of exercise of such Warrants.
For purposes of Rule 144 under the Securities Act (17 CFR §230.144), the Company and the Warrant
Agent agree that the exercise of Warrants in accordance with the Cashless Exercise option shall be
deemed to be a conversion of such Warrants, pursuant to the terms hereof, into Warrant Shares.
(g) Any exercise of a Warrant pursuant to the terms of this Warrant Agreement shall be
irrevocable and shall constitute a binding agreement between the holder and the Company,
enforceable in accordance with its terms; provided that a holder may condition its exercise of a
Warrant on the consummation of a Reorganization Event (as defined below).
(h) The Warrant Agent shall:
(i) examine all Warrant Exercise Notices and all other documents delivered to it by or on
behalf of holders to ascertain whether, on their face, such Warrant Exercise Notices and any such
other documents have been executed and completed in accordance with their terms;
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(ii) where a Warrant Exercise Notice or other document appears on its face to have been
improperly completed or executed or some other irregularity in connection with the exercise of the
Warrant exists, the Warrant Agent shall endeavor to inform the appropriate parties (including the
person submitting such instrument) of the need for fulfillment of all requirements, specifying
those requirements which appear to be unfulfilled;
(iii) inform the Company of and cooperate with and assist the Company in resolving any
reconciliation problems relating to the Warrant Exercise Notices received and delivery of Warrants
to the Warrant Agents account;
(iv) advise the Company, no later than three business days after receipt of a Warrant Exercise
Notice, of (x) the receipt of such Warrant Exercise Notice and the number of Warrants exercised in
accordance with the terms and conditions of this Warrant Agreement, (y) the instructions with
respect to delivery of the Warrant Shares, subject to the timely receipt from the Depository of the
necessary information, and (z) such other information as the Company shall reasonably require; and
(v) subject to the Warrant Shares being made available to the Warrant Agent by or on behalf of
the Company for delivery to the Depository, liaise with the Depository and endeavor to effect such
delivery to the relevant accounts at the Depository in accordance with its requirements.
(i) All questions as to the validity, form and sufficiency (including time of receipt) of a
Warrant exercise shall be reasonably determined by the Company in good faith, which determination
shall be final and binding. The Warrant Agent shall incur no liability for or in respect of and,
except to the extent such liability arises from the Warrant Agents gross negligence, willful
misconduct or bad faith (each as determined by a final, non appealable order of a court of
competent jurisdiction), shall be indemnified and held harmless by the Company for acting or
refraining from acting upon, or as a result of such determination by the Company. The Company
reserves the right to reject any and all Warrant Exercise Notices not in proper form. Such
determination by the Company shall be final and binding on the holders, absent manifest error.
Moreover, the Company reserves the absolute right to waive any of the conditions to the exercise of
Warrants or defects in Warrant Exercise Notices with regard to any particular exercise of Warrants.
The Company shall be under no duty to give notice to the holders of the Warrants of any
irregularities in any exercise of Warrants, nor shall it incur any liability for the failure to
give such notice.
(j) As soon as reasonably practicable after the exercise of any Warrant, the Company shall
issue, or otherwise deliver, in authorized denominations to or upon the order of the holder of such
Warrant either:
(i) if such holder holds the Warrants being exercised through the Depositorys book-entry
transfer facilities, by same-day or next-day credit to the Depository for the account of such
holder or for the account of a participant in the Depository the number of Warrant Shares to which
such holder is entitled, in each case registered in such name and
10
delivered to such account as directed in the Warrant Exercise Notice by such holder or by the
direct participant in the Depository through which such holder is acting; or
(ii) if such holder holds the Warrants being exercised in the form of Book-Entry Warrants, a
book-entry interest in the Warrant Shares registered on the books of the Companys stock transfer
agent (the
Transfer Agent
) or, at the Companys option, by delivery to the address
designated by such holder in its Warrant Exercise Notice of a physical certificate or certificates
representing the number of Warrant Shares to which such holder is entitled, in fully registered
form, registered in such name or names as may be directed by such holder. Such Warrant Shares
shall be deemed to have been issued and any person so designated to be named therein shall be
deemed to have become a holder of record of such Warrant Shares as of the close of business on the
date of the delivery thereof.
Warrants shall be exercisable during the period provided for in
Section 8(a)
at the
election of the holder thereof, either as an entirety or from time to time for a portion of the
number of Warrant Shares issuable upon exercise of such Warrants. If less than all of the Warrants
evidenced by a Global Warrant Certificate surrendered upon the exercise of Warrants are exercised
at any time prior to 5:00 p.m., New York City time, on the Expiration Date, a new Global Warrant
Certificate or Certificates shall be issued for the remaining number of Warrants evidenced by the
Global Warrant Certificate so surrendered, and the Warrant Agent is hereby authorized to
countersign the new Global Warrant Certificate(s) pursuant to the provisions of
Section 5
hereof and this
Section 8
. The person in whose name any certificate or certificates for
the Warrant Shares are to be issued (or such Warrant Shares are to be registered, in the case of a
book-entry transfer) upon exercise of a Warrant shall be deemed to have become the holder of record
of such Warrant Shares on the date such Warrant Exercise Notice is delivered.
(k) For purposes of this Warrant Agreement, a
business day
means any day other than
a Saturday, Sunday or a day on which banking institutions in New York City are authorized or
obligated by law, regulation or executive order to close or remain closed. In accordance with
Section 14
hereof, no fractional shares shall be issued upon exercise of any Warrants.
(l) All Global Warrant Certificates surrendered upon exercise of Warrants shall be cancelled
by the Warrant Agent. Such cancelled Global Warrant Certificates shall then be disposed of by or
at the direction of the Company in accordance with applicable law. The Warrant Agent shall (x)
advise an authorized representative of the Company as directed by the Company by the end of each
day on which Warrants were exercised, of (i) the number of shares of Common Stock issued upon
exercise of a Warrant, (ii) the delivery of Global Warrant Certificates evidencing the balance, if
any, of the shares of Common Stock issuable after such exercise of the Warrant and (iii) such
other information as the Company shall reasonably require and (y) concurrently pay to the Company
all funds received by the Warrant Agent in payment of the aggregate Exercise Price. The Warrant
Agent shall confirm such information to the Company in writing.
(m) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or
received hereunder, and provide, at the Companys expense, copies thereof to
11
any registered holder of the Warrants requesting, in writing, such copy prior to 5:00 p.m.,
New York City time, on the Expiration Date. The Company shall supply the Warrant Agent from time
to time with such numbers of copies of this Warrant Agreement as the Warrant Agent may reasonably
request.
SECTION 9
Payment of Taxes
.
No service charge shall be made to any holder of a
Warrant for any exercise, exchange or registration of transfer of Warrants, and the Company will
pay all documentary stamp taxes attributable to the initial issuance of Warrant Shares upon the
exercise of Warrants;
provided
,
however
, that neither the Company nor the Warrant Agent shall be
required to pay any tax or taxes which may be payable in respect of any transfer involved in the
issuance of Warrant Shares or any certificates for Warrant Shares in a name other than that of the
registered holder of a Warrant surrendered upon the exercise of a Warrant, and the Company and the
Warrant Agent shall not be required to issue or deliver such Warrant Shares or the certificates
representing the Warrant Shares unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company and the Warrant Agent that such tax has been paid.
SECTION 10
Mutilated or Missing Warrant Certificates
.
The Company may issue and the
Warrant Agent shall countersign, upon evidence satisfactory to the Company and the Warrant Agent of
the loss, theft, mutilation or destruction of the Global Warrant Certificate in lieu of the Global
Warrant Certificate, a new warrant certificate of like tenor and amount in the place of any Global
Warrant Certificate theretofore issued by it, alleged to have been lost, stolen, mutilated or
destroyed, and the Company and the Warrant Agent may require the owner of the lost, stolen,
mutilated or destroyed certificate, or such owners legal representative, to give the Company and
the Warrant Agent a bond sufficient to indemnify them against any claim that may be made against it
on account of the alleged loss, theft or destruction of any such Global Warrant Certificate or the
issuance of such new certificate.
SECTION 11
Reservation of Shares of Common Stock
.
(a) The Company will at all times reserve and keep available out of the aggregate of its
authorized but unissued shares of Common Stock, for the purpose of enabling it to satisfy any
obligation to issue shares of Common Stock upon exercise of Warrants, the maximum number of shares
of Common Stock that may then be deliverable upon the exercise of all outstanding Warrants, and
the Transfer Agent is hereby irrevocably authorized and directed at all times to reserve such
number of authorized and unissued or treasury shares of Common Stock as shall be required for such
purpose. The Company will keep a copy of this Agreement on file with the Transfer Agent. The
Warrant Agent is hereby irrevocably authorized and directed to requisition from time to time from
the Transfer Agent stock certificates issuable upon exercise of outstanding Warrants. The Company
will supply the Transfer Agent with duly executed stock certificates for such purpose and will,
upon request, provide or otherwise make available any cash which may be payable as provided in
Section 14. The Company will furnish the Transfer Agent with a copy of all notices of adjustments
and certificates related thereto, transmitted by the Company to the Warrant Agent and each holder.
The Warrant Agent shall have no duty or obligation to investigate or confirm the accuracy of the
information or the genuineness of the signatures contained in such notices or certificates.
12
(b) The Company covenants that all shares of Common Stock that may be issued upon exercise of
Warrants will be, upon payment of the aggregate Exercise Price and issuance thereof, duly
authorized, validly issued, fully paid, nonassessable, free of preemptive rights and free from all
taxes, liens, charges and security interests with respect to the issue thereof (other than any
liens, charges and security interests created by the Warrant holder or the person to which the
shares of Common Stock are to be issued).
SECTION 12
Adjustments
.
The number of shares of Common Stock for which a Warrant is
exercisable and the Exercise Price and the Trigger Price shall be subject to adjustment from time
to time as set forth in this
Section 12
.
(a)
Stock Dividends, Subdivisions, Combinations, Recapitalizations and
Reclassification
.
(i) If at any time the Company shall: (A) pay a dividend on its Common Stock (or make some
other distribution on its Common Stock) consisting of shares of Common Stock, (B) subdivide its
outstanding shares of Common Stock into a larger number of shares of Common Stock, or (C) combine
its outstanding shares of Common Stock into a smaller number of shares of Common Stock, then the
number of shares of Common Stock or other shares of capital stock that a record holder of the same
number of shares of Common Stock or other shares of capital stock for which a Warrant is
exercisable immediately prior to any such dividend, distribution, subdivision or combination shall
be adjusted so that the holder of each Warrant shall be entitled upon exercise to receive the
number of shares of Common Stock or other shares of capital stock that such holder would have owned
or have been entitled to receive after the happening of any of the events described above, had such
Warrant been exercised immediately prior to the happening of such event (or, in the case of a
dividend or distribution of Common Stock, immediately prior to the record date therefor). An
adjustment made pursuant to this
Section 12(a)
shall become effective immediately upon and
contemporaneously with the effectiveness of such event.
(ii) Whenever the number of shares of Common Stock purchasable upon the exercise of any
Warrant is adjusted as herein provided in
Section 12(a)
, the Exercise Price and the Trigger
Price shall be adjusted to equal (A) the Exercise Price or the Trigger Price, as applicable,
immediately prior to such adjustment multiplied by the number of shares of Common Stock for which a
Warrant is exercisable immediately prior to such adjustment divided by (B) the number of shares of
Common Stock for which a Warrant is exercisable immediately after such adjustment.
(b)
Extraordinary Dividends or Distributions
. If the Company, at any time after the
date of this Agreement, pays a dividend or makes a distribution in cash, securities or other assets
to the holders of Common Stock (in their capacity as such) or other shares of capital stock into
which the Warrants are convertible, other than (i) a dividend or distribution described in
Section 12(a)(i)(A)
, (ii) regular quarterly or other periodic dividends declared and paid
pursuant to a dividend policy established by the Board not to exceed in any fiscal year of the
Company twenty percent (20%) of the consolidated net income of the Company and its consolidated
subsidiaries (determined in accordance with United States generally accepted
13
accounting principles) for the immediately preceding fiscal year, (iii) distributions made to
the holders of Common Stock upon the consummation of a Reorganization Event or (iv) dividends and
distributions made in connection with the Companys liquidation or dissolution (any such
non-excluded dividends or distributions, an
Extraordinary Dividend
), then the Trigger
Price shall be decreased, effective immediately after the effective date of such Extraordinary
Dividend, dollar-for-dollar by the amount of cash and/or the fair market value (as reasonably
determined in good faith by the Board of Directors of the Company, without regard to any
illiquidity or minority discounts) of any securities or other assets paid or distributed on each
share of Common Stock in respect of such Extraordinary Dividend.
(c)
Other Provisions Applicable to Adjustments under this Section
. The following
provisions shall be applicable to the making of adjustments of the number of shares of Common Stock
for which a Warrant is exercisable and the Exercise Price and the Trigger Price provided for in
this
Section 12
:
(i)
When Adjustments to Be Made
. The adjustments required by this
Section 12
shall be made whenever and as often as any specified event requiring an adjustment shall occur.
For the purpose of any adjustment, any specified event shall be deemed to have occurred at the
close of business on the date of its occurrence. All calculations shall be made to the nearest
cent and to the nearest one-thousandth of a share, as the case may be.
(ii)
Fractional Interests
. In computing adjustments pursuant to this
Section
12
(but subject to
Section 14
), fractional interests in Common Stock shall be taken
into account to the nearest 1/1000th of a share,
(d)
Reorganization, Reclassification, Merger or Consolidation of the Company
.
(i) If a Reorganization Event shall occur and pursuant to the terms of any such Reorganization
Event, the consideration to be paid or distributed to or otherwise received by the holders of
Common Stock consists of shares of common stock of the surviving corporation or acquiring or
resulting entity and/or any cash, shares of stock (not constituting common stock) or other
securities or property of any nature whatsoever (including warrants or other subscription or
purchase rights) (such non-common stock property hereinafter referred to as
Other
Property
), then each holder of a Warrant shall have the right to receive in connection with
the consummation of such Reorganization Event, upon exercise of a Warrant (if then exercisable at
the time of such consummation, determined in accordance with Section 12(d)(ii)), solely the number
of shares of common stock of the surviving corporation or acquiring or resulting entity and/or such
amount of Other Property receivable pursuant to such Reorganization Event by a holder of the number
of shares of Common Stock for which a Warrant is exercisable immediately prior to the effective
time of such Reorganization Event assuming such holder of Common Stock did not exercise its rights
of election, if any, as to the kind or amount of common stock or Other Property receivable upon
such Reorganization Event (provided that, if the kind or amount of common stock or Other Property
receivable upon such Reorganization Event is not the same for each share of Common Stock in respect
of which such rights of election shall not have been exercised (nonelecting share), then for the
purposes of this
Section 12(d)(i)
the kind
14
and amount of common stock or Other Property receivable upon such Reorganization Event for
each nonelecting share shall be deemed to be the kind and amount so receivable per share by a
plurality of the electing shares). The Company will not effect any Reorganization Event unless
prior to the consummation thereof the successor corporation or acquiring or resulting entity (if
other than the Company) shall assume by written instrument the obligation to deliver to each holder
of Warrants such shares of common stock or Other Property, in accordance with the foregoing
provisions, such holder may be entitled to purchase. The Company shall notify (i) in writing, the
Warrant Agent at least five (5) business days prior to the consummation of any Reorganization Event
of (A) the expected date of consummation of the Reorganization Event, (B) a reasonably detailed
description of the consideration to be paid per share of Common Stock in the Reorganization Event
to the holders of Common Stock and (C) a description of the procedures and method of payment in
respect of the consideration payable to the holders of Warrants, if any, upon exercise of a Warrant
and (ii) each holder of a Warrant at least twenty (20) business days prior to the consummation of
any Reorganization Event of (A) the expected date of consummation of the Reorganization Event and
(B) a reasonably detailed description of the consideration to be paid per share of Common Stock in
the Reorganization Event to the holders of Common Stock. No failure of the Company to provide the
notice provided for in the foregoing sentence shall affect the validity of the Reorganization Event
or the proceedings for the cancellation of the Warrants or limit the rights of the holders of
Warrants hereunder.
(ii) The Warrants shall be exercisable in connection with a Reorganization Event if (A) at the
date of consummation of such Reorganization Event, the Warrant is then exercisable in accordance
with
Section 8(a)
or (B) if the value of all consideration to be received by a holder of
Common Stock in respect of one share of Common Stock in the Reorganization Event, on a fully
diluted per share basis, is equal to or greater than the Trigger Price. In the event the Warrants
are exercisable pursuant to clause (B) above, a holder of Warrants shall have the option of
exercising the Warrants prior to the consummation of such Reorganization Event, provided that the
holder may condition the exercise of the Warrants on the consummation of such Reorganization Event.
As of the consummation of the Reorganization Event, all of the Warrants shall be deemed to be no
longer outstanding and not transferable on the books of the Company or the surviving corporation or
resulting entity, and shall represent solely the right to receive the consideration payable upon
exercise of the Warrants, without interest. Any Warrants that are not exercisable in connection
with a Reorganization Event shall expire and be cancelled.
(iii) For purposes hereof, a
Reorganization Event
shall mean any transaction which
the Company enters into constituting (i) a consolidation, merger, share exchange or similar
transaction of the Company with or into another person pursuant to which the Common Stock is
changed into, converted into or exchanged for cash, securities or other property (whether of the
Company or another person); (ii) a reorganization, recapitalization or reclassification or similar
transaction in which the Common Stock is exchanged for securities other than Common Stock (other
than in circumstances covered by
Section 12(a))
; or (iii) a statutory exchange of the
outstanding shares of Common Stock for securities of another person (other than in connection with
a consolidation, merger, share exchange or other similar transaction).
15
(iv) Notwithstanding anything to the contrary in
Section 12(d)(i)
, if the Company
enters into a transaction (a
Specified Transaction
) that would otherwise constitute a
Reorganization Event, in each case in which the shares of Common Stock are exchanged for cash,
securities or other property, as a result of which the holders of Common Stock immediately prior to
such Specified Transaction own or hold at least a majority of the voting equity securities of the
continuing or surviving entity immediately following such Specified Transaction, then Section
12(d)(i) shall not apply and as a condition to the consummation of such Specified Transaction
effective provisions shall be made in the certificate of incorporation or articles of incorporation
of the continuing or surviving entity, or in any contract or agreement providing for such Specified
Transaction, so that so long as any Warrant remains outstanding, each Warrant, upon the exercise
thereof at any time after the consummation of such Specified Transaction, shall be exercisable into
(at an initial Exercise Price equal to the Exercise Price in effect immediately prior to such
Specified Transaction), in lieu of the Common Stock issuable upon such exercise prior to such
consummation, solely the amount of cash, securities or other property (
Substituted
Property
) receivable pursuant to such Specified Transaction by a holder of the number of
shares of Common Stock for which a Warrant is exercisable immediately prior to the effective time
of such Specified Transaction assuming such holder of Common Stock did not exercise its rights of
election, if any, as to the kind or amount of Substituted Property receivable upon such Specified
Transaction (provided that, if the kind or amount of Substituted Property receivable upon such
Specified Transaction is not the same for each share of Common Stock in respect of which such
rights of election shall not have been exercised (
nonelecting share
), then for the
purposes of this
Section 12(d)(iv)
the kind and amount of Substituted Property receivable
upon such Specified Transaction for each nonelecting share shall be deemed to be the kind and
amount so receivable per share by a plurality of the electing shares); provided that, if the
Trigger Price has not been achieved in accordance with Section 8(a) at the time of consummation of
the Specified Transaction, then in lieu of the foregoing, any cash which would be part of the
Substituted Property shall not be included in the Substituted Property but instead shall be treated
as an Extraordinary Dividend in accordance with Section 12(b). The provisions set forth herein
providing for adjustments and otherwise for the protection of the holders of Warrants shall
thereafter continue to be applicable on an as nearly equivalent basis as may be practicable and any
such continuing or surviving entity shall expressly assume all of the obligations of the Company
set forth herein to the extent applicable. Without limiting the foregoing, in connection with any
such Specified Transaction, the Trigger Price shall be adjusted to the extent reasonably determined
by the board of directors (or other governing body) of the continuing or surviving entity to
maintain, to the extent practicable, an equivalent intrinsic value of the Warrants immediately
prior to such transaction.
(e)
Certain Limitations
. Notwithstanding anything herein to the contrary, the Company
agrees not to enter into any transaction which, by reason of any adjustment hereunder, would cause
the Exercise Price to be less than the par value per share of Common Stock (if any) unless the
Company shall take such corporate action in order that the Company may validly and legally issue
fully paid and nonassessable shares of such Common Stock at such adjusted Exercise Price.
SECTION 13
Priority Adjustments, Further Actions
.
If any single action would require
adjustment of the Exercise Price pursuant to more than one subsection of
Section 12
16
hereof, only one adjustment shall be made and such adjustment shall be the amount of
adjustment that has the highest, relative to the rights and interests of the holders of the
Warrants then outstanding, absolute value.
SECTION 14
Fractional Shares
.
The Company shall not be required to issue fractional
shares of Common Stock upon the exercise of the Warrants if it elects, if otherwise permitted, to
make a cash payment in respect of any final fraction of a share upon such exercise (after
aggregating all fractional shares of each holder). If more than one Warrant shall be presented for
exercise at the same time by the same holder, the number of full shares of Common Stock that shall
be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of
shares of Common Stock purchasable on exercise of all of the Warrants so presented. If any
fraction of a share of Common Stock would, except for the provisions of this
Section 14
,
be issuable on the exercise of any Warrants (or specified portion thereof), the Company shall
notify the Warrant Agent in writing of the amount to be paid in lieu of the fraction of a share of
Common Stock and concurrently pay or provide to the Warrant Agent for payment to the Warrant holder
an amount in cash equal to the product of (i) such fraction of a share of Common Stock and (ii)
the Closing Price of a share of Common Stock for the Trading Day immediately preceding the date
the Warrant was presented for exercise pursuant to
Section 8
hereof. The Warrant Agent
shall have no duty with respect to any payment for Warrant Shares under any Section of this Warrant
Agreement relating to the payment of fractional Warrant Shares unless and until the Warrant Agent
shall have received such notice and sufficient monies.
SECTION 15
Warrant Holders not Stockholders
.
Nothing contained in this Warrant
Agreement or in any of the Global Warrant Certificates shall be construed as conferring upon the
holders of any Warrant (solely in its capacity as a holder of a Warrant) (i) the right to vote or
to consent or to receive notice as stockholders in respect of the meetings of stockholders or the
election of directors of the Company or any other matter for which stockholders are entitled to
vote or to attend any such meetings or any other proceedings of the holders of Common Stock; (ii)
without limiting the provisions of Section 12 hereof, the right to receive any cash dividends,
stock dividends, allotments or rights or other distributions paid, allotted or distributed or
distributable to the holders of Common Stock prior to, or for which the relevant record date
precedes, the date of the exercise of such Warrant; or (iii) any other rights whatsoever as
stockholders of the Company. The Warrant Agent shall have no duty to monitor or enforce compliance
with this provision.
SECTION 16
Merger, Consolidation or Change of Name of Warrant Agent
.
Any person into
which the Warrant Agent may be merged or converted or with which it may be consolidated, or any
person resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a
party, or any person succeeding to all or substantially all of the corporate trust or agency
business of the Warrant Agent, shall be the successor to the Warrant Agent hereunder without the
execution or filing of any paper or any further act on the part of any of the parties hereto. If,
at the time such successor to the Warrant Agent by merger or consolidation succeeds to the agency
created by this Warrant Agreement, any of the Global Warrant Certificates shall have been
countersigned but not delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent; and if, at that time any of the Global Warrant
Certificates shall not have been countersigned, any such successor to
17
the Warrant Agent may countersign such Global Warrant Certificates either in the name of the
predecessor Warrant Agent or in the name of the successor Warrant Agent; and in all such cases such
Global Warrant Certificates shall have the full force and effect provided in the Global Warrant
Certificates in this Warrant Agreement. If at any time the name of the Warrant Agent shall be
changed and at such time any of the Global Warrant Certificates shall have been countersigned but
not delivered, the Warrant Agent whose name has changed may adopt the countersignature under its
prior name; and if at that time any of the Global Warrant Certificates shall not have been
countersigned, the Warrant Agent may countersign such Global Warrant Certificates either in its
prior name or in its changed name; and in all such cases such Global Warrant Certificates shall
have the full force provided in the Global Warrant Certificates and in this Warrant Agreement.
SECTION 17
Warrant Agent
.
The Warrant Agent undertakes only the duties and
obligations expressly imposed by this Warrant Agreement upon the following terms and conditions, by
all of which the Company and the holders of Warrants, by their acceptance thereof, shall be bound:
(a) The Warrant Agent may rely conclusively and shall be protected in acting upon any order,
judgment, instruction, notice, demand, certificate, opinion or advice of counsel (including counsel
chosen by or who may be an employee of the Warrant Agent or one of its affiliates), statement,
instrument, report or other paper or document (not only as to its due execution and the validity
and effectiveness of its provisions, but also as to the truth and acceptability and of information
therein contained) which is believed by the Warrant Agent, in good faith, to be genuine and to be
signed or presented by the proper person or persons as set forth in Section 17(d).
(b) The Warrant Agent shall have no duties, responsibilities or obligations as the Warrant
Agent except those which are expressly set forth herein, and in any modification or amendment
hereof to which the Warrant Agent has consented in writing, and no duties, responsibilities or
obligations shall be implied or inferred.
(c) The statements contained herein and in the Global Warrant Certificates shall be deemed to
be statements of the Company only. The Warrant Agent assumes no responsibility for the correctness
of any of the same and shall not be required to verify the same.
(d) Whenever in the performance of its duties under this Warrant Agreement the Warrant Agent
deems it necessary or desirable that any fact or matter be proved or established by the Company
prior to taking, suffering or omitting to take any action hereunder, such fact or matter may be
deemed to be conclusively proved and established by a certificate signed by the Companys Chairman
of the Board, Chief Executive Officer, President or any Vice President and delivered to the Warrant
Agent; and in reliance upon such certificate, the Warrant Agent shall take any action or omit to
take any action authorized under the provisions of this Warrant Agreement. In the event the
Warrant Agent reasonably believes any ambiguity or uncertainty exists hereunder or in any notice,
instruction, direction, request or other communication, paper or document received by the Warrant
Agent hereunder, or is uncertain of any action to take hereunder, the Warrant Agent, may, following
prior written notice to the
18
Company, refrain from taking any action, and shall be fully protected and shall not be liable
in any way to the Company or any other person or entity for refraining from taking such action,
unless the Warrant Agent receives written instructions signed by the Company which eliminates such
ambiguity or uncertainty to the reasonable satisfaction of the Warrant Agent.
(e) The Warrant Agent shall not be responsible for any failure of the Company to comply with
any of the covenants contained in this Warrant Agreement (including, without limitation, any
adjustment of the Exercise Price pursuant to
Section 12
hereof, the authorization or
reservation of shares of Common Stock pursuant to
Section 11
hereof, and the due execution
and delivery by the Company of this Warrant Agreement or any Global Warrant Certificate) or in the
Global Warrant Certificates to be complied with by the Company.
(f) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be
counsel for the Company or an employee of the Warrant Agent) and the Warrant Agent shall incur no
liability or responsibility to the Company or any holder of any Warrant in respect of any action
taken, suffered or omitted by it hereunder and in accordance with the opinion or the advice of such
counsel.
(g) The Warrant Agent shall incur no liability or responsibility for any action taken in
reliance on any Global Warrant Certificate, Warrant Statement, certificate representing shares of
Common Stock, notice, resolution, waiver, consent, order, certificate, or other paper, document or
instrument believed by it to be genuine and to have been signed, sent or presented by the proper
party or parties. The Warrant Agent shall not be bound by any notice or demand, or any waiver,
modification, termination or revision of this Warrant Agreement or any of the terms hereof, unless
evidenced by a writing between and signed by, the Company and the Warrant Agent. The Warrant Agent
shall not be required to take instructions or directions except those given in accordance with this
Warrant Agreement.
(h) The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it
or perform any duty hereunder either itself or by or through its attorneys, accountants, agents or
other experts, and the Warrant Agent will not be answerable or accountable for any act, default,
neglect or unintentional misconduct of any such attorneys or agents or for any loss to the Company
or the holders of the Warrants resulting from any such act, default, neglect or unintentional
misconduct, absent gross negligence, willful misconduct or bad faith (as each is determined by a
final non-appealable order of a court of competent jurisdiction) in the selection and continued
employment or engagement thereof.
(i) The Warrant Agent will not be under any duty or responsibility to insure compliance with
any applicable federal or state securities laws in connection with the issuance, transfer or
exchange of Global Warrant Certificates.
(j) The Warrant Agent shall not incur any liability for not performing any act, duty,
obligation or responsibility by reason of any occurrence beyond the control of the Warrant Agent
(including, without limitation, any act or provision of any present or future law or regulation or
governmental authority, any act of God, war, civil disorder or failure of any means of
communication).
19
(k) The Company agrees to pay to the Warrant Agent reasonable compensation for all services
rendered by the Warrant Agent in the preparation, delivery, administration and execution of this
Warrant Agreement and the exercise and performance of its duties hereunder, to reimburse the
Warrant Agent for all reasonable expenses (including reasonable counsel fees), taxes (including
withholding taxes) and governmental charges and other charges of any kind and nature actually
incurred by the Warrant Agent in the execution, delivery and performance of its responsibilities
under this Warrant Agreement and to indemnify the Warrant Agent and save it harmless against any
and all liabilities, including judgments, costs and counsel fees, for anything done or omitted by
the Warrant Agent, or any person acting on behalf of the Warrant Agent, in the execution, delivery
and performance of its responsibilities under this Warrant Agreement except as a result of its
gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable
order of a court of competent jurisdiction).
(l) The Warrant Agent, shall be under no obligation to institute any action, suit or legal
proceeding or to take any other action likely to involve expense unless the Company or one or more
holders of Global Warrant Certificates shall furnish the Warrant Agent with reasonable security and
indemnity for any costs and expenses which may be incurred, but this provision shall not affect the
power of the Warrant Agent to take such action as it may consider proper, whether with or without
any such security or indemnity. All rights of action under this Warrant Agreement or under any of
the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrants or
the production thereof at any trial or other proceeding relative thereto, and any such action, suit
or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent and any
recovery of judgment shall be for the ratable benefit of the holders of the Warrants, as their
respective rights or interests may appear.
(m) Except as otherwise prohibited by applicable law, the Warrant Agent, and any member,
stockholder, director, officer or employee of the Warrant Agent, may buy, sell or deal in any of
the Warrants or other securities of the Company or become pecuniarily interested in any transaction
in which the Company may be interested, or contract with or lend money to the Company or otherwise
act as fully and freely as though it were not Warrant Agent under this Warrant Agreement. Nothing
herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for
any other legal entity.
(n) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties
shall be determined solely by the express provisions hereof. The Warrant Agent shall not be liable
for anything which it may do or refrain from doing in connection with this Warrant Agreement,
except for its own gross negligence, bad faith or willful misconduct (each as determined by a
final, non-appealable order of a court of competent jurisdiction); provided that in no event shall
the Warrant Agent be liable for special, incidental, punitive, indirect or consequential loss or
damage of any kind whatsoever (including, without limitation, lost profits). Any liability of the
Warrant Agent under this Agreement, except for liability arising out of, or in connection with, the
gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable
order of a court of competent jurisdiction) of the Warrant Agent, will be limited to the amount of
aggregate fees paid by the Company to the Warrant Agent.
20
(o) The Warrant Agent shall not at any time be under any duty or responsibility to any holder
of any Warrant to make or cause to be made any adjustment of the Exercise Price or number of the
shares of Common Stock or other securities or property deliverable as provided in this Warrant
Agreement, or to determine whether any facts exist which may require any of such adjustments, or
with respect to the nature or extent of any such adjustments, when made, or with respect to the
method employed in making the same. The Warrant Agent shall not be accountable with respect to the
validity or value or the kind or amount of any shares of Common Stock or of any securities or
property which may at any time be issued or delivered upon the exercise of any Warrant or with
respect to whether any such shares of Common Stock or other securities will when issued be validly
issued and fully paid and nonassessable, and makes no representation with respect thereto. The
Warrant Agent shall not be accountable to confirm or verify the accuracy or necessity of any
calculation.
(p) The Company agrees to perform, execute and acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further and other acts, instruments, and
assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of
the provisions of this Agreement.
(q) The Warrant Agent shall have no responsibility or liability with respect to the validity
of this Agreement or with respect to the validity or execution of any Warrant (except its
countersignature thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Warrant; nor shall it be responsible to
make or be liable for any adjustments required under any provision hereof, including but not
limited to
Section 11
hereof, or responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that would require any such adjustment;
nor shall it by act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock to be issued pursuant to this Agreement
or any Warrant or as to whether any shares of Common Stock will, when issued, be valid and fully
paid and nonassessable.
(r) Notwithstanding anything to the contrary contained herein, the Company shall make all
determinations with respect to Cashless Exercises, and the Warrant Agent shall have no duty or
obligation to investigate or confirm whether the Company determination regarding the number of
Shares to be issued in the event of a Cashless Exercise is accurate or correct. Notwithstanding
anything to the contrary contained herein, the Warrant Agent shall also have no duty or obligation
to investigate or confirm whether any determination of the Exercise Amount under
Section 8
is correct or accurate.
(s) No provision of this Agreement shall require the Warrant Agent to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties hereunder
or in the exercise of its rights, except to the extent otherwise expressly set forth herein.
(t) Notwithstanding the foregoing, nothing in this
Section 17
shall relieve the
Warrant Agent from any liability arising from the Warrant Agents transfer of any Warrant without
obtaining confirmation from the Company as described in
Section 6
hereof.
21
(u) All rights and obligations contained in this
Section 17
and
Section 18
hereof shall survive the termination of this Warrant Agreement and the resignation, replacement or
removal of the Warrant Agent.
SECTION 18
Expenses
.
All expenses incident to the Companys performance of or
compliance with this Warrant Agreement will be borne by the Company, including, without limitation:
(i) all expenses of printing Global Warrant Certificates; (ii) messenger and delivery services and
telephone calls; (iii) all fees and disbursements of counsel for the Company; (iv) all fees and
disbursements of independent certified public accountants or knowledgeable experts selected by the
Company; and (v) the Companys internal expenses (including, without limitation, all salaries and
expenses of their officers and employees performing legal or accounting duties).
SECTION 19
Change of Warrant Agent
.
(a) If the Company terminates the Warrant Agent or the Warrant Agent shall become incapable of
acting as Warrant Agent or shall resign as provided below, the Company shall appoint a successor to
such Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days
after it has terminated the Warrant Agent or it has been notified in writing of a resignation or
incapacity by the Warrant Agent, then any holder of a Warrant may apply to any court of competent
jurisdiction for the appointment of a successor to the Warrant Agent. Pending appointment of a
successor to the Warrant Agent, either by the Company or by such a court, the duties of the Warrant
Agent shall be carried out by the Company. Any successor Warrant Agent, whether appointed by the
Company or by such a court, shall be a bank or trust company, in good standing, incorporated under
the laws of any state or of the United States of America. As soon as practicable after appointment
of the successor Warrant Agent, the Company shall cause written notice of the change in the Warrant
Agent to be given to each of the holders of the Warrants at such holders address appearing on the
Warrant Register. After appointment, the successor to the Warrant Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had been originally named as Warrant
Agent without further act or deed. The former Warrant Agent shall deliver and transfer to the
successor to the Warrant Agent any property at the time held by it hereunder and execute and
deliver any further assurance, conveyance, act or deed necessary for the purpose. Failure to give
any notice provided for in this
Section 19
, however, or any defect therein, shall not
affect the legality or validity of the appointment of a successor to the Warrant Agent.
(b) The Warrant Agent may resign at any time and be discharged from the obligations hereby
created by so notifying the Company in writing at least 30 days in advance of the proposed
effective date of its resignation. If no successor Warrant Agent accepts the engagement hereunder
by such time, the Company shall act as Warrant Agent.
SECTION 20
Notices to the Company and Warrant Agent
.
Any notice or demand authorized
or permitted by this Warrant Agreement to be given or made by the Warrant Agent or by any holder of
the Warrants to or on the Company to be effective shall be in writing (including by facsimile), and
shall be deemed to have been duly given or made when delivered by hand, or two (2) business days
after being delivered to a recognized courier (whose stated terms of
22
delivery are two (2) business days or less to the destination of such notice), or five (5)
days after being deposited in the mail, first class and postage prepaid or, in the case of
facsimile notice, when received, addressed as follows (until another address or facsimile number is
filed in writing by the Company with the Warrant Agent):
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Lear Corporation
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21557 Telegraph Drive
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Southfield, Michigan 48033
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Attn: General Counsel
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Telephone:
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(248) 447-5123
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Facsimile:
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(248) 447-5126
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with a copy to:
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Winston & Strawn LLP
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35 West Wacker Drive
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Chicago, Illinois 60601
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Attn: Bruce A. Toth
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Brian M. Schafer
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Telephone:
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(312) 558-5600
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Facsimile:
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(312) 558-5700
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Any notice or demand pursuant to this Warrant Agreement to be given by the Company or by any
holder(s) of the Warrants to the Warrant Agent shall be sufficiently given if sent in the same
manner as notices or demands are to be given or made to or on the Company (as set forth above) to
the Warrant Agent at the Warrant Agent Office as follows (until another address is filed in writing
by the Warrant Agent with the Company):
Mellon Investor Services LLC
Newport Office Center VII
480 Washington Boulevard
Jersey City, NJ 07310
Attn: Relationship Manager
SECTION 21
Supplements and Amendments
.
The Company and the Warrant Agent may from
time to time supplement or amend this Warrant Agreement (a) without the approval of any holders of
Warrants in order to cure any ambiguity or to correct or supplement any provision contained herein
that may be defective or inconsistent with any other provision herein, or to make any other
provisions in regard to matters or questions arising hereunder that the Company may deem necessary
or desirable and that shall not adversely affect the rights or interests of the holders of Warrants
or (b) with the prior written consent of holders of the Warrants exercisable for a majority of the
shares of Common Stock then issuable upon exercise of the Warrants then outstanding; provided,
however, that the consent of each holder of a Warrant affected shall be required for any amendment
of this Warrant Agreement that would (i) increase the Exercise Price or the Trigger Price or
decrease the number of shares of Common Stock purchasable upon exercise of the Warrants, except
that such consent shall not be required
23
for any adjustment to the Exercise Price or the Trigger Price or the number of shares of
Common Stock purchasable if made pursuant to the provisions of
Section 12
hereof, (ii)
alter the Companys obligation to issue Warrant Shares upon exercise of the underlying Warrant
(other than pursuant to adjustments otherwise provided for in this Agreement, including the
adjustments provided for in
Section 12
hereof), (iii) change the Expiration Date of the
Warrants to an earlier date, (iv) waive the application of the adjustment provisions contained in
Section 12
in connection with any events to which such provisions apply or otherwise modify
the adjustment provisions contained in
Section 12
in a manner that would have an adverse
economic impact on the holders of Warrants, or (v) treat such holder differently in an adverse way
from any other holder of Warrants. The Warrant Agent may, but shall not be obligated to, execute
any amendment or supplement which affects the rights or increases the duties or obligations of the
Warrant Agent.
SECTION 22
Successors
.
All the covenants and provisions of this Warrant Agreement by
or for the benefit of the Company, the holders of the Warrants or the Warrant Agent shall bind and
inure to the benefit of their respective successors and assigns hereunder.
SECTION 23
Termination
.
This Warrant Agreement shall terminate at 5:00 p.m., New York
City time, on the Expiration Date (or, at 5:00 p.m., New York City time, on the Settlement Date
with respect to any Warrant Exercise Notice delivered prior to 5:00 p.m., New York City time, on
the Expiration Date). Notwithstanding the foregoing, this Warrant Agreement will terminate on such
earlier date on which all outstanding Warrants have been exercised. Termination of this Warrant
Agreement shall not relieve the Company or the Warrant Agent of any of their obligations arising
prior to the date of such termination or in connection with the settlement of any Warrant exercised
prior to 5:00 p.m., New York City time, on the Expiration Date.
SECTION 24
Governing Law
.
This Warrant Agreement and each Warrant issued hereunder
shall be deemed to be a contract made under the laws of the State of New York and for all purposes
shall be governed by and construed in accordance with the laws of the State of New York without
giving effect to conflict of laws principles.
SECTION 25
Benefits of this Warrant Agreement
.
This Warrant Agreement shall be for
the sole and exclusive benefit of the Company, the Warrant Agent and the holders of the Warrants,
and nothing in this Warrant Agreement shall be construed to give to any person other than the
Company, the Warrant Agent and the holders of the Warrants any legal or equitable right, remedy or
claim under this Warrant Agreement. Each holder, by acceptance of a Warrant, agrees to all of the
terms and provisions of this Warrant Agreement applicable thereto.
SECTION 26
Counterparts
.
This Warrant Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to be an original, and
all such counterparts shall together constitute but one and the same instrument.
SECTION 27
Further Assurances
.
From time to time on and after the date hereof, the
Company shall deliver or cause to be delivered to the Warrant Agent such further documents and
instruments and shall do and cause to be done such further acts as the Warrant Agent shall
24
reasonably request (it being understood that the Warrant Agent shall have no obligation to
make such request) to carry out more effectively the provisions and purposes of this Warrant
Agreement, to evidence compliance herewith or to assure itself that it is protected hereunder.
SECTION 28
Entire Agreement
.
This Warrant Agreement and the Global Warrant
Certificates constitute the entire agreement of the Company, the Warrant Agent and the holders of
the Warrants with respect to the subject matter hereof and supersede all prior agreements and
undertakings, both written and oral, among the Company, the Warrant Agent and the holders of the
Warrants with respect to the subject matter hereof. Except as expressly made herein, the Company
makes no representation, warranty, covenant or agreement with respect to the Warrants.
SECTION 29
Severability
.
Wherever possible, each provision of this Warrant Agreement
shall be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Warrant Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Warrant Agreement;
provided, however, that if such excluded or added provision shall materially affect the rights,
immunities, duties or obligations of the Warrant Agent, the Warrant Agent shall be entitled to
resign immediately upon notification in writing to the Company.
SECTION 30
Force Majeure
.
In no event shall the Warrant Agent be responsible or
liable for any failure or delay in the performance of its obligations under this Agreement arising
out of or caused by, directly or indirectly, forces beyond its reasonable control, including
without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software or hardware) services.
25
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement to be duly executed,
as of the day and year first above written.
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LEAR CORPORATION
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By:
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/s/ Matthew J. Simoncini
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Name: Matthew J. Simoncini
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Title: Senior Vice
President
and
Chief Financial Officer
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MELLON INVESTOR SERVICES LLC,
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as Warrant Agent
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By:
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/s/ Lee Kowably
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Name: Lee Kowably
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Title: Vice President
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EXHIBIT A
FORM OF GLOBAL WARRANT CERTIFICATE
FORM OF FACE OF GLOBAL WARRANT CERTIFICATE
VOID
AFTER 5:00 P.M., NEW YORK CITY TIME, ON NOVEMBER 9, 2014
THE SALE, ASSIGNMENT, PLEDGE, ENCUMBRANCE, EXCHANGE OR OTHER TRANSFER OF THE SECURITIES REPRESENTED
BY THIS CERTIFICATE IS SUBJECT TO THE TERMS OF THE WARRANT AGREEMENT, DATED AS OF NOVEMBER __, 2009
(THE
WARRANT AGREEMENT
), BETWEEN THE ISSUER OF THIS CERTIFICATE AND THE WARRANT AGENT
NAMED THEREIN. BY ACCEPTING ANY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE, THE
RECIPIENT OF SUCH SECURITIES SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL OF THE
PROVISIONS OF THE WARRANT AGREEMENT. A COPY OF THE WARRANT AGREEMENT MAY BE OBTAINED UPON WRITTEN
REQUEST TO THE CORPORATE SECRETARY OF THE ISSUER OF THIS CERTIFICATE.
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NO. W-1
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WARRANT TO PURCHASE
___ SHARES OF COMMON
STOCK
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LEAR CORPORATION
WARRANT TO PURCHASE COMMON STOCK, PAR VALUE $0.01 PER SHARE
CUSIP # 521865 113
DISTRIBUTION DATE: NOVEMBER 9, 2009
This Global Warrant Certificate certifies that Cede & Co., or its registered assigns, is the
registered holder of a Warrant (this
Warrant
) of
LEAR CORPORATION
, a Delaware corporation
(the
Company
), to purchase the number of shares of common stock, par value $0.01 per
share (
Common Stock
), of the Company set forth above (as adjusted from time to time in
accordance with the terms of the Warrant Agreement). This Warrant expires at 5:00 p.m. New York
City time on November 9, 2014 (the
Expiration Date
) and entitles the holder to purchase
from the Company up to the number of fully paid and nonassessable shares of Common Stock set forth
above at an exercise price of $0.01 per share of Common Stock (as adjusted from time to time in
accordance with the terms of the Warrant Agreement, the
Exercise Price
). Subject to the
terms and conditions set forth in the Warrant Agreement, this Warrant may be exercised at any time,
and from time to time, in whole or in part, during the period (i) commencing on the business day
immediately following a period of 30 consecutive Trading Days ending prior to, but not including,
such business day during which the Closing Price of the Common Stock for at least 20 of the Trading
Days within such 30-day period is equal to or greater than $39.63 (as adjusted from time in
accordance with the terms of the Warrant Agreement, the
Trigger Price
) and (ii) ending at
5:00 p.m. New York City time on the Expiration Date. The Exercise Price, the Trigger Price and the
number of shares of Common Stock purchasable upon exercise of this Warrant are subject to
adjustment upon the occurrence of certain events as set forth in the Warrant Agreement.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS GLOBAL WARRANT CERTIFICATE SET
FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT
AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Global Warrant Certificate shall not be valid unless countersigned by the Warrant Agent.
All capitalized terms used herein and not defined herein shall have the meanings assigned to
them in the Warrant Agreement.
27
IN WITNESS WHEREOF
, the Company has caused this Global Warrant Certificate to be executed by
its duly authorized officers as of the date below set forth.
Dated:
, 2009
LEAR CORPORATION
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By:
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Name:
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Robert E. Rossiter
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Title:
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Chairman, Chief Executive Officer
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and President
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By:
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Name:
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Terrence B. Larkin
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Title:
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Senior Vice President, General
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Counsel and Corporate Secretary
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Countersigned:
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MELLON INVESTOR SERVICES LLC
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as Warrant Agent
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By:
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Name:
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Title:
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Address of Registered Holder for Notices (until changed in accordance with the Warrant Agreement):
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FORM OF REVERSE OF GLOBAL WARRANT CERTIFICATE
The Warrant evidenced by this Global Warrant Certificate is a part of a duly authorized issue
of Warrants to purchase up to
shares of Common Stock issued pursuant to the Warrant
Agreement. The Warrant Agreement is hereby incorporated by reference herein and made a part of
this instrument and is hereby referred to for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Warrant Agent, the Company and the registered
holders of the Warrants. All capitalized terms used but not defined herein shall have the meanings
assigned to them in the Warrant Agreement.
Upon due presentment for registration of transfer of the Warrant and surrender of this Global
Warrant Certificate at the office of the Warrant Agent designated for such purpose, a new Global
Warrant Certificate or Global Warrant Certificates of like tenor and evidencing in the aggregate a
like number of Warrants shall be issued to the transferee in exchange for this Global Warrant
Certificate, subject to the limitations set forth in the Warrant Agreement, without charge except
for any applicable tax or other charge.
Subject to Section 14 of the Warrant Agreement, the Company shall not be required to issue
fractional shares of Common Stock.
No Warrants may be sold, exchanged or otherwise transferred in violation of the Securities Act
state securities laws or other applicable law.
The Warrant does not entitle the registered holder thereof to any of the rights of a
stockholder of the Company.
The Company and Warrant Agent may deem and treat the registered holder hereof as the absolute
owner of this Global Warrant Certificate (notwithstanding any notation of ownership or other
writing hereon made by anyone other than the Company or the Warrant Agent) for the purpose of any
exercise hereof and for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
This Global Warrant Certificate is held by The Depository Trust Company (the
Depository
) or its nominee in custody for the benefit of the beneficial owners hereof,
and is not transferable to any Person under any circumstances except that (i) this Global Warrant
Certificate may be transferred in whole pursuant to Section 6(e) of the Warrant Agreement (as
hereinafter defined) and (ii) this Global Warrant Certificate may be delivered to the Warrant Agent
for cancellation pursuant to Sections 6(g) and 8(l) of the Warrant Agreement.
Unless this Global Warrant Certificate is presented by an authorized representative of the
Depository to the Company or the Warrant Agent for registration of transfer, exchange or payment
and any certificate issued is registered in the name of Cede & Co., or such other entity as is
requested by an authorized representative of the Depository (and any payment hereon is made to Cede
& Co. or to such other entity as is requested by an authorized representative of the Depository),
any transfer, pledge or other use hereof for value or otherwise by or to any Person is wrongful
because the registered owner hereof, Cede & Co., has an interest herein.
No registration or transfer of the securities issuable pursuant to the Warrant will be
recorded on the books and records of the Company or the Warrant Agent until the provisions set
forth in the Warrant Agreement have been complied with.
In the event of any conflict or inconsistency between this Global Warrant Certificate and the
Warrant Agreement, the Warrant Agreement shall control.
EXHIBIT B-1
EXERCISE FORM FOR HOLDERS
HOLDING BOOK-ENTRY WARRANTS
(To be executed upon exercise of the Warrant(s))
The undersigned hereby irrevocably elects to exercise the right, represented by the Book-Entry
Warrant(s), to purchase shares of Common Stock of Lear Corporation and (check one or both):
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herewith tenders in payment for
shares of Common
Stock an amount of $
by certified or official bank
check made payable to the order of Lear Corporation or by wire
transfer in immediately available funds to an account arranged with
Lear Corporation; and/or
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herewith tenders the Warrant(s) for
shares of
Common Stock pursuant to the cashless exercise provision of Section
8(f) of the Warrant Agreement.
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Please check below if this exercise is contingent upon the consummation of a Reorganization Event
as provided in Sections 8(g) and12(d) of the Warrant Agreement:
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This exercise is being made in connection with a Reorganization
Event;
provided
, that in the event the Reorganization Event
shall not be consummated, then this exercise shall be deemed to be
revoked.
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The undersigned requests that a statement representing the shares of Common Stock issued upon
exercise of the Warrant(s) be delivered in accordance with the instructions set forth below.
Dated:
, 20____
THIS EXERCISE NOTICE MUST BE DELIVERED TO THE WARRANT AGENT, PRIOR TO 5:00 P.M., NEW YORK CITY
TIME, ON THE EXPIRATION DATE.
ALL CAPITALIZED TERMS USED HEREIN BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS ASSIGNED TO THEM
IN THE WARRANT AGREEMENT.
30
THE UNDERSIGNED REQUESTS THAT A STATEMENT REPRESENTING THE SHARES OF COMMON STOCK BE DELIVERED AS
FOLLOWS:
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Name:
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(Please Print)
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Address:
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Telephone:
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Fax:
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Social Security Number or Other Taxpayer Identification Number (if applicable):
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IF SAID NUMBER OF SHARES SHALL NOT BE ALL THE SHARES PURCHASABLE UNDER THE WARRANT(S), THE
UNDERSIGNED REQUESTS THAT NEW BOOK-ENTRY WARRANT(S) REPRESENTING THE BALANCE OF SUCH WARRANT(S)
SHALL BE REGISTERED AS FOLLOWS:
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Name:
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(Please Print)
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Address:
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Telephone:
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Fax:
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Social Security Number or Other Taxpayer Identification Number (if applicable):
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Signature:
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Name:
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Capacity in which Signing:
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SIGNATURE GUARANTEED BY:
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Signatures must be guaranteed by a participant in the Securities Transfer Agent Medallion
Program, the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc. Medallion
Signature Program.
EXHIBIT B-2
EXERCISE FORM FOR HOLDERS
HOLDING WARRANTS THROUGH THE DEPOSITORY TRUST COMPANY
TO BE COMPLETED BY DIRECT PARTICIPANT
IN THE DEPOSITORY TRUST COMPANY
(To be executed upon exercise of the Warrant(s))
The undersigned hereby irrevocably elects to exercise the right, represented by Global Warrant
Certificate No. ___ held for its benefit through the book-entry facilities of The Depository Trust
Company (the Depository), to purchase
shares of Common Stock of Lear
Corporation and (check one or both):
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herewith tenders in payment for such shares an amount of
$
by certified or official bank check made
payable to the order of Lear Corporation or by wire transfer in
immediately available funds to an account arranged with Lear
Corporation; and/or
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herewith tenders the Warrant(s) for
shares of
Common Stock pursuant to the cashless exercise provision of Section
8(f) of the Warrant Agreement.
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Please check below if this exercise is contingent upon the consummation of a Reorganization Event
as provided in Sections 8(g) and 12(d) of the Warrant Agreement:
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This exercise is being made in connection with a Reorganization
Event;
provided
, that in the event the Reorganization Event
shall not be consummated, then this exercise shall be deemed to be
revoked.
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The undersigned requests that the shares of Common Stock issuable upon exercise of the Warrant(s)
be in registered form in the authorized denominations, registered in such names and delivered, all
as specified in accordance with the instructions set forth below;
provided
, that if the
shares of Common Stock are evidenced by global securities, the shares of Common Stock shall be
registered in the name of the Depository or its nominee.
Dated:
, 20___
THIS EXERCISE NOTICE MUST BE DELIVERED TO THE WARRANT AGENT, PRIOR TO 5:00 P.M., NEW YORK CITY
TIME, ON THE EXPIRATION DATE. THE WARRANT AGENT SHALL NOTIFY YOU (THROUGH THE CLEARING SYSTEM) OF
(1) THE WARRANT AGENTS ACCOUNT AT THE DEPOSITORY TO WHICH YOU MUST DELIVER YOUR WARRANT(S) ON THE
EXERCISE DATE AND (2) THE ADDRESS, PHONE NUMBER AND FACSIMILE NUMBER WHERE YOU CAN CONTACT THE
WARRANT AGENT AND TO WHICH WARRANT EXERCISE NOTICES ARE TO BE SUBMITTED.
ALL CAPITALIZED TERMS USED HEREIN BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS ASSIGNED TO THEM
IN THE WARRANT AGREEMENT.
33
NAME OF DIRECT PARTICIPANT IN THE DEPOSITORY:
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Account Name:
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(Please Print)
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Address:
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Contact Name:
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Telephone:
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Fax:
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Social Security Number or Other Taxpayer Identification Number (if applicable):
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Account from which Warrant(s) are Being Delivered:
Depository Account Number:
WARRANT HOLDER DELIVERING WARRANT(S), IF OTHER THAN THE DIRECT PARTICIPANT:
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Name:
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Contact Name:
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Address:
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Telephone:
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Fax:
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Account to which the Shares of Common Stock are to be Credited:
Depository Account Number:
FILL IN FOR DELIVERY OF THE COMMON STOCK, IF OTHER THAN TO THE PERSON DELIVERING THIS WARRANT
EXERCISE NOTICE:
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Name:
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(Please Print)
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Address:
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Contact Name:
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Telephone:
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Fax:
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Social Security Number or Other Taxpayer Identification Number (if applicable):
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Signature:
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Name:
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Capacity in which Signing:
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Signature Guaranteed By:
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Signatures must be guaranteed by a participant in the Securities Transfer Agent Medallion Program,
the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc. Medallion Signature
Program.
Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT
(this
Agreement
) is made as of the Effective Date
by and among Lear Corporation, a Delaware corporation (the
Company
), and each of the
other Persons who become parties to this Agreement in accordance with
Section 14
hereof.
Capitalized terms used but not otherwise defined herein are defined in
Section 9
hereof.
NOW, THEREFORE
, in consideration of the mutual promises made herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, agree as follows:
1.
Demand Registrations
.
(a)
Requests for Registration
. At any time after the Effective Date, the holders of
Registrable Securities may request registration under the Securities Act of all or a portion of
their Registrable Securities up to a total of four times (on Form S-3, or if Form S-3 is not then
available to the Company, Form S-1 or any successor form) (any registration under this
Section
1(a)
, a
Demand Registration
).
(b)
Demand Notices
. All requests for Demand Registrations shall be made by giving
written notice to the Company (the
Demand Notice
). Each Demand Notice shall specify the
number of Registrable Securities requested to be registered and whether a Shelf Registration is
being requested. Within five (5) days after receipt of any Demand Notice, the Company shall give
written notice of such requested registration to all other holders of Registrable Securities (the
Company Notice
) and, subject to the provisions of
Section 1(f)
below, shall
include in such registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt of the Company
Notice.
(c)
Demand Expenses
. The Company shall pay all Registration Expenses of all holders of
Registrable Securities in all Demand Registrations.
(d)
Demand Registrations
. A registration shall not count as one of the permitted
Demand Registrations until both (i) it has become effective (unless such Demand Registration has
not become effective due solely to the fault of the holders requesting such registration) and (ii)
the holders of Registrable Securities initially requesting such registration are able to register
and sell pursuant to such registration at least 90% of the Registrable Securities requested to be
included in such registration either at the time that the registration statement shall have become
effective or within 90 days thereafter;
provided
that the Company shall in any event pay
all Registration Expenses in connection with any registration initiated as a Demand Registration
whether or not it has become effective and whether or not such registration has counted as one of
the permitted Demand Registrations;
provided
further that any holder whose Registrable
Securities were to be included in any such registration pursuant to
Section 1(a)
, by
written notice to the Company, may withdraw such request, and on receipt of such notice of the
withdrawal from holders owning a percentage of the Registrable Securities such that holders that
have not elected to withdraw do not own in the aggregate the requisite percentage to initiate a
request under this
Section 1
, the Company shall not effect such registration (and such
Demand Registration will count as a request pursuant to
Section 1(a)
unless the Company is
reimbursed by such holder or holders for all reasonable out-of-pocket expenses incurred by the
Company in connection with such registration).
(e)
Shelf Registration
. The holders of a majority of the Registrable Securities
requested to be registered in connection with any Demand Registration may, in connection with such
Demand Registration requested by such holders, require the Company to file a shelf registration
statement with the Securities and Exchange Commission in accordance with and pursuant to Rule 415
promulgated under the Securities Act (or any successor rule then in effect) (a
Shelf
Registration
).
(f)
Priority on Demand Registrations
. The Company shall not include in any Demand
Registration any securities which are not Registrable Securities without the prior written consent
of the holders of a majority of the Registrable Securities included in such registration. If a
Demand Registration is an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if permitted hereunder,
other securities requested to be included in such offering exceeds the number of Registrable
Securities and other securities, if any, which can be sold in an orderly manner in such offering
within a price range acceptable to the holders of a majority of the Registrable Securities
initially requesting registration, the Company shall include in such registration the number which
can be so sold in the following order of priority: (i)
first
, the Registrable Securities
requested to be included in such registration, which in the opinion of such underwriter can be sold
in an orderly manner within the price range of such offering, pro rata among the respective holders
of such Registrable Securities on the basis of the number of shares of such Registrable Securities
owned by each such holder, and (ii)
second
, other securities, if any, requested to be
included in such registration to the extent permitted hereunder.
(g)
Restrictions on Demand Registrations
.
(i) The Company shall not be obligated to effect (A) any Demand Registration on Form S-1 (or
any similar long-form registration) unless the aggregate fair market value of the Registrable
Securities requested to be registered in such Demand Registration (including any Registrable
Securities requested to be included in such Demand Registration pursuant to
Section 1(b)
hereof by holders other than holders that instituted such Demand Registration) is at least
$100,000,000 (based on the Closing Price on the Trading Day prior to the day on which such request
for a Demand Registration is given), (B) any Demand Registration on Form S-3 (or any similar
short-form registration) unless the aggregate fair market value of the Registrable Securities
requested to be registered in such Demand Registration (including any Registrable Securities
requested to be included in such Demand Registration pursuant to
Section 1(b)
hereof by
holders other than holders that instituted such Demand Registration) is at least $40,000,000 (based
on the Closing Price on the Trading Day prior to the day on which such request for a Demand
Registration is given) or (C) any Demand Registration within 120 days (or 180 days if such Demand
Registration was on a Form S-1 or any successor form) after the effective date of a previous Demand
Registration or a previous registration in which the holders of Registrable Securities were given
piggyback rights pursuant to
Section 2
and, in each case, in which such holders were able
to register and sell at least 90% of the number of Registrable
2
Securities requested to be included therein. In addition, the Company shall not be obligated
to effect any Demand Registration during the period starting with the date that is sixty (60) days
prior to the Boards good faith estimate of the date of filing of, and ending on the date that is
ninety (90) days (provided that such 90-day period shall be reduced by the number of days in which
the 60-day period shall have been extended, if any) after the effective date of, a Company
initiated registration,
provided
that the Company is actively employing in good faith all
reasonable efforts to cause such registration to become effective, and
provided, further
that the aggregate number of days that any one or more Demand Registrations are suspended or
delayed by operation of this
Section 1(g)
shall not exceed 180 days in any twelve month
period.
(ii) The Company may postpone, for a reasonable period of time, the filing of, or suspend the
effectiveness of, any registration statement for a Demand Registration or amendment thereto, or
suspend the use of any prospectus and shall not be required to amend or supplement the registration
statement, any related prospectus or any document incorporated therein by reference if the Board,
in its reasonable good faith judgment, determines that it would reasonably be expected to have a
material adverse effect on any plan or proposal by the Company to engage in any acquisition or
disposition of assets (other than in the ordinary course of business) or any stock purchase,
merger, consolidation, tender offer, reorganization or similar transaction or would require the
disclosure of information that has not been disclosed to the public, the premature disclosure of
which would materially adversely affect the Company;
provided
that in such event, the
duration of the rights of the holders to require Demand Registrations pursuant to this
Section
1
and to participate in Piggyback Registrations pursuant to
Section 2
shall be extended
by the period of any such postponement; and
provided
,
further
that the Company may
delay a Demand Registration hereunder only once in any 12-month period and the duration of such
postponement or suspension may not exceed more than 90 consecutive days in any 12 month period.
(iii) In the event of any such suspension or delay, the holders of Registrable Securities
initially requesting a Demand Registration that is suspended or delayed by operation of this
Section 1(g)
shall be entitled to withdraw such request and, if such request is withdrawn,
such Demand Registration shall not count as one of the permitted Demand Registrations hereunder,
and the Company shall pay all Registration Expenses in connection with such registration.
(h)
Selection of Underwriters
. In the event of a Demand Registration pursuant to this
Section 1
, the Company shall select the underwriter(s) for each underwritten offering,
subject to the reasonable approval of the holders of a majority of the Registrable Securities to be
registered.
2.
Piggyback Registrations
.
(a)
Right to Piggyback
. Whenever the Company proposes to register any of its
securities under the Securities Act (other than pursuant to a Demand Registration) and the
registration form to be used may be used for the registration of Registrable Securities (a
Piggyback Registration
), the Company shall give prompt written notice to all holders of
Registrable Securities of its intention to effect such a registration and shall, subject to the
provisions of
Sections 2(c)
and
(d)
below, include in such registration all
Registrable Securities
3
with respect to which the Company has received written requests for inclusion therein within
15 days after the receipt of the Companys notice. Notwithstanding anything to the contrary
contained herein, in the event the registration statement is initiated by the Company, the Company
may determine not to proceed with a registration which is the subject of such notice.
(b)
Piggyback Expenses
. The Registration Expenses of the holders of Registrable
Securities shall be paid by the Company in all Piggyback Registrations.
(c)
Priority on Primary Registrations
. If a Piggyback Registration is an underwritten
primary registration on behalf of the Company, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such offering within a
price range acceptable to the Company, the Company shall include in such registration the number
which can be so sold in the following order of priority: (i)
first
, the securities the
Company proposes to sell, (ii)
second
, the Registrable Securities requested to be included
in such registration, which in the opinion of such underwriter can be sold in an orderly manner
within the price range of such offering, pro rata among the holders of such Registrable Securities
on the basis of the number of shares of such Registrable Securities owned by each such holder, and
(iii)
third
, other securities, if any, requested to be included in such registration, which
in the opinion of such underwriter can be sold in an orderly manner within the price range of such
offering.
(d)
Priority on Secondary Registrations
. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Companys securities (it being
understood that demand registrations on behalf of holders of Registrable Securities are addressed
in
Section 1
rather than this
Section 2
), and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such offering within a
price range acceptable to the holders initially requesting such registration, the Company shall
include in such registration the number which can be so sold in the following order of priority:
(i)
first
, the securities requested to be included therein by the holders requesting such
registration and the Registrable Securities requested to be included in such registration, which in
the opinion of such underwriter can be sold in an orderly manner within the price range of such
offering, pro rata among the holders of all such securities on the basis of the number of
securities owned by each such holder, and (ii)
second
, other securities, if any, requested
to be included in such registration, which in the opinion of such underwriter can be sold in an
orderly manner within the price range of such offering.
(e)
Selection of Underwriters
. In the event of a Piggyback Registration pursuant to
Section 2(c)
, the Company shall select a nationally recognized underwriter(s) for such
underwritten offering. In the event of a Piggyback Registration pursuant to
Section 2(d)
,
the Company shall select the underwriter(s) for each underwritten offering, subject to the
reasonable approval of the holders of a majority of the Registrable Securities to be registered.
(f)
Right to Terminate Registration
. The Company shall have the right to terminate or
withdraw any registration initiated by it under this
Section 2
whether or not any holder of
Registrable Securities has elected to include securities in such registration, without
4
prejudice to the rights of any holder to include Registrable Securities in any future
registration (or registrations) pursuant to this
Section 2
or, if applicable, to cause such
registration to be effected as a registration under
Section 1
hereof, as the case may be.
The Registration Expenses of such withdrawn registration shall be borne by the Company in
accordance with
Section 5
hereof.
(g)
Not Counted as a Demand Registration
. No registration effected under this Section
2 shall relieve the Company of its obligation to effect any registration upon request under Section
1(a) hereof and no registration effected pursuant to this Section 2 shall be deemed to have been
effected pursuant to Section 1(a) hereof.
3.
Holdback Agreements
.
(a)
Holders of Registrable Securities
. Each holder of Registrable Securities shall not
effect any public sale or distribution (including sales pursuant to Rule 144) of equity securities
of the Company, or any securities convertible into or exchangeable or exercisable for such
securities, during (i) with respect to any underwritten Demand Registration or any underwritten
Piggyback Registration in which Registrable Securities of such holder are included in such
registration, the seven days prior to and the 90 day period beginning on the effective date of such
registration, provided, however, that (x) the Company and the managing underwriter may not
discriminate among the holders with respect to any holdback arrangement pursuant to this
Section 3
and (y) all officers and directors of the Company are bound by and have entered
into similar agreements to the extent required by the managing underwriter(s), and (ii) upon notice
from the Company of the commencement of an underwritten distribution in connection with any Shelf
Registration in which Registrable Securities of such holder are included in such distribution, the
seven days prior to and the 90 day period beginning on the date of commencement of such
distribution, provided, however, that (x) the Company and the managing underwriter may not
discriminate among the holders with respect to any holdback arrangement pursuant to this
Section 3
and (y) all officers and directors of the Company are bound by and have entered
into similar agreements to the extent required by the managing underwriter(s), in each case except
as part of such underwritten registration or distribution, and in each case unless the underwriters
managing the public offering otherwise agree. Each holder of Registrable Securities whose
Registrable Securities are included as part of any such underwritten registration or distribution
agrees to execute a customary lock-up agreement in favor of the Companys underwriters to such
effect and, in any event, that the Companys underwriters in any relevant offering shall be third
party beneficiaries of this
Section 3(a)
.
(b)
The Company
. The Company shall not effect any public sale or distribution of its
equity securities, or any securities convertible into or exchangeable or exercisable for such
securities (except pursuant to registrations on Form S-8, Form S-4 or any successor forms), during
(i) with respect to any underwritten Demand Registration or any underwritten Piggyback Registration
in which the holders of Registrable Securities are participating, the seven days prior to and the
90 day period beginning on the effective date of such registration, and (ii) upon notice from any
holder(s) of Registrable Securities that such holder(s) intend to effect a distribution of
Registrable Securities pursuant to a Shelf Registration (upon receipt of which, the Company will
promptly notify all other holders of Registrable
5
Securities of the date of commencement of such distribution), the seven days prior to and the
90 day period beginning on the date of commencement of such distribution.
4.
Registration Procedures
.
Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this Agreement, the Company
shall use its commercially reasonable efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition thereof, and pursuant
thereto the Company shall as promptly as practicable:
(a) prepare and file with the Securities and Exchange Commission a registration statement with
respect to such Registrable Securities (and, in the case of a Demand Registration, the Company
shall use its commercially reasonable efforts to make such filing within 90 days of its receipt of
a Demand Notice) and use its commercially reasonable efforts to cause such registration statement
to become effective (and, in the case of a Demand Registration, use its commercially reasonable
efforts to cause such registration statement to become effective within 120 days of its receipt of
a Demand Notice); provided that a reasonable time before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company shall furnish to the counsel
selected by the holders of a majority of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed;
(b) notify each holder of Registrable Securities of the effectiveness of each registration
statement filed hereunder and prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for a period of not
less than 90 days (plus a number of days equal to the number of days, if any, that such
registration statement is not kept effective (including any days for which the registration
statement is suspended pursuant to
Section 1(g)(ii)
) (or, if sooner, until all Registrable
Securities have been sold under such Registration Statement) (or, in the case of a Shelf
Registration, a period ending on the earlier of (i) the date on which all Registrable Securities
have been sold pursuant to the Shelf Registration or have otherwise ceased to be Registrable
Securities, and (ii) the two year anniversary of the effective date of such Shelf Registration) and
comply with the provisions of the Securities Act with respect to the disposition of all securities
covered by such registration statement during such period in accordance with the intended methods
of disposition by the sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities and their representatives such number of
copies of such registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus and any summary
prospectus) and such other documents as such seller may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such seller;
(d) use its commercially reasonable efforts (i) to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as any seller
reasonably requests, (ii) to keep such registration or qualification in effect for so long as such
registration statement remains in effect, and (iii) to do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such seller (provided that
6
the Company shall not be required to (i) qualify generally to do business as a foreign
corporation in any jurisdiction where it would not otherwise be required to qualify but for this
subsection, (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction);
(e) notify each seller of such Registrable Securities (i) at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, (A) upon discovery that, or
upon the happening of any event as a result of which, the prospectus included in such registration
statement contains an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not misleading in light
of the circumstances under which they were made, in each case, that has not been corrected or
superseded, and, at the request of any such seller, the Company shall prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus, as supplemented, amended or superseded, shall not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the circumstances under which
they were made, (B) after the Company becomes aware of any request by the Securities and Exchange
Commission or any Federal or state governmental authority for amendments or supplements to a
registration statement or related prospectus covering Registrable Securities or for additional
information relating thereto, (C) after the Company becomes aware of the issuance or threatened
issuance by the Securities and Exchange Commission of any stop order suspending or threatening to
suspend the effectiveness of a registration statement covering the Registrable Securities or (D) of
the receipt by the Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any Registrable Security for sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose; and (ii) when each registration
statement or any amendment thereto has been filed with the Securities and Exchange Commission and
when each registration statement or any post-effective amendment thereto has become effective;
(f) cause all such Registrable Securities (i) if the Common Stock is then listed on a
securities exchange or included for quotation in a recognized trading market, to continue to be so
listed on such securities exchange or included for quotation in such recognized trading market or
if the Common Stock is not then listed on a securities exchange or included for quotation in a
recognized trading market, use its commercially reasonable efforts to list the Registrable
Securities on a national securities exchange, and (ii) to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the sellers thereof to
consummate the disposition of the Registrable Securities;
(g) provide and cause to be maintained a transfer agent and registrar for all such Registrable
Securities from and after the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting agreements in customary form)
and take all such other actions as the holders of a majority of the Registrable Securities being
sold or the underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities;
7
(i) make available for inspection by any seller of Registrable Securities, any underwriter
participating in any disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause the Companys
officers, directors, employees and independent accountants to supply all information, in each case,
as reasonably requested by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement;
(j) otherwise use its commercially reasonable efforts to comply with all applicable rules and
regulations of the Securities and Exchange Commission and any other governmental agency or
authority having jurisdiction over the offering, and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the period of at least twelve months
beginning with the first day of the Companys first full calendar quarter after the effective date
of the registration statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder;
(k) cause its officers to use their commercially reasonable efforts to support the marketing
of the Registrable Securities covered by the registration statement (including, without limitation,
participation in road shows);
(l) cooperate with each seller of Registrable Securities and each underwriter and agent
participating in the disposition of such Registrable Securities and their respective counsel in
connection with any required filings;
(m) use its commercially reasonable efforts to obtain and, if obtained, furnish to each seller
of Registrable Securities, and each such sellers underwriters, if any, a signed
(i) opinion of counsel for the Company, dated the effective date of such registration
statement (and, if such registration involves an underwritten offering, dated the date of
the closing under the underwriting agreement and addressed to the underwriters), reasonably
satisfactory (based on the customary form and substance of opinions of issuers counsel
customarily given in such an offering) in form and substance to such seller, and
(ii) cold comfort letter, dated the effective date of such registration statement
(and, if such registration involves an underwritten offering, dated the date of the closing
under the underwriting agreement and addressed to the underwriters) and signed by the
independent public accountants who have certified the Companys financial statements
included or incorporated by reference in such registration statement, reasonably
satisfactory (based on the customary form and substance of cold comfort letters of
issuers independent public accountant customarily given in such an offering) in form and
substance to such seller,
in each case, covering substantially the same matters with respect to such registration statement
(and the prospectus included therein) and, in the case of the accountants comfort letter, with
respect to events subsequent to the date of such financial statements, as are customarily covered
8
in opinions of issuers counsel and in accountants comfort letters delivered to underwriters in
such types of offerings of securities.
5.
Registration Expenses
.
(a)
Expenses
. All expenses incident to the Companys performance of or compliance with
this Agreement, including all registration, filing, listing, stock exchange and FINRA fees
(including, without limitation, all fees and expenses of any qualified independent underwriter
required by the rules of FINRA), fees and expenses of compliance with securities or blue sky laws,
rating agency fees, printing expenses, messenger and delivery expenses, fees and disbursements of
custodians, the reasonable fees, disbursements and other charges of one firm of counsel in each
applicable jurisdiction (per registration statement prepared) to the holders of Registrable
Securities making a request pursuant to
Section 1
or
Section 2
hereof (selected by
the holders of a majority of the Registrable Securities covered by such registration), and fees and
disbursements of counsel for the Company and all independent certified public accountants,
underwriters (excluding discounts and commissions) and other Persons retained by the Company (all
such expenses being herein called
Registration Expenses
), shall be borne by the Company.
The Company shall, in any event, pay its internal expenses (including all salaries and expenses of
its officers and employees performing legal or accounting duties), the expense of any annual audit
or quarterly review, the expense of any liability insurance and the expenses and fees for listing
the securities to be registered on each securities exchange on which securities issued by the
Company are listed. If the Company shall not register any securities with respect to which it had
given written notice of its intention to register to holders, notwithstanding anything to the
contrary, all reasonable out-of-pocket expenses incurred by such requesting holders in connection
with such registration (other than the reasonable fees, disbursements and other charges of counsel
other than the one firm of counsel referred to above) shall be deemed to be Registration Expenses.
(b)
Payment of Certain Expenses by Holders of Registrable Securities
. Underwriting
discounts and commissions and transfer taxes relating to the Registrable Securities included in any
registration hereunder, and all fees and expenses of counsel for any holder of Registrable
Securities (other than fees and expenses to be reimbursed by the Company as set forth in
Section 5(a)
) shall be borne and paid by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities to be so registered.
6.
Indemnification; Contribution
.
(a) The Company agrees to indemnify, to the extent permitted by law, each holder or seller of
Registrable Securities and each Person that controls (within the meaning of the Securities Act and
the Exchange Act) such holder or seller, and their respective stockholders, officers, directors,
partners, employees, agents and Affiliates against all losses, claims, damages, liabilities (or
actions or proceedings, whether commenced or threatened, in respect thereof and whether or not such
indemnified party is a party thereto), joint or several, and expenses, including attorneys fees
and disbursements and expenses of investigation (collectively,
Losses
), arising out of,
based upon, relating to or resulting from any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus or summary prospectus
related thereto or any amendment thereof or supplement
9
thereto (or any document incorporated by reference in any of the foregoing) (collectively,
Offering Documents
), any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading in light of the
circumstances in which they were made, or violation or alleged violation by the Company of any
applicable federal or state securities law or any rule or regulation promulgated thereunder, except
insofar as the same are caused by or contained in any information furnished in writing to the
Company by such holder expressly for use therein. In connection with an underwritten offering, the
Company shall indemnify such underwriters, their stockholders, officers, directors, partners,
employees, agents and Affiliates and each Person who controls (within the meaning of the Securities
Act and the Exchange Act) such underwriters to the same extent as provided above with respect to
the indemnification of the holders or sellers of Registrable Securities.
(b) In connection with any registration statement filed by the Company pursuant to
Section
1
or
Section 2
hereof in which a holder of Registrable Securities is participating,
each such holder shall furnish to the Company in writing such information and affidavits as the
Company reasonably requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall, on a several and not joint basis, indemnify
the Company, its stockholders, directors, officers, partners, employees, agents and Affiliates and
each Person who controls (within the meaning of the Securities Act and the Exchange Act) the
Company against any Losses arising out of, based upon, relating to or resulting from any untrue or
alleged untrue statement of material fact contained in any Offering Documents or any omission or
alleged omission of a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they were made, but
only to the extent that such untrue statement or omission is contained in any writing furnished by
such holder expressly for use therein;
provided
however
that such liability shall
be limited to the net amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks indemnification (provided that
the failure to give prompt notice shall not impair any Persons right to indemnification hereunder
to the extent such failure has not actually prejudiced the indemnifying party) and (ii) unless in
such indemnified partys reasonable judgment (x) a conflict of interest between such indemnified
and indemnifying parties may exist with respect to such claim or (y) such indemnified party has one
or more defenses to such claim that are not available to the indemnifying party, permit such
indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party at such indemnifying partys own expense. If such defense is assumed, the
indemnifying party shall not settle such claim unless the indemnified party is released and
discharged of any and all liability. Whether or not such defense is assumed, the indemnifying
party shall not be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent shall not be unreasonably withheld). An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to
pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying
party with respect to such claim.
(d) The indemnification provided for under this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
10
party or any stockholder, officer, director, employee, partner, agent or Affiliate or
controlling (within the meaning of the Securities Act and the Exchange Act) Person of such
indemnified party and shall survive the transfer of securities.
(e) If the indemnification required by this
Section 6
from the indemnifying party is
unavailable to an indemnified party hereunder in respect of any Losses referred to in this
Section 6
:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result of such
Losses in such proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified parties in connection with the actions which resulted in
such Losses, as well as any other relevant equitable considerations. If the allocation
provided by clause (i) is not permitted by applicable law, then the allocation shall be in
such proportion as shall be appropriate to reflect the relative benefits received by the
Company, on the one hand, and such prospective sellers, on the other hand, from their sale
of Registrable Securities;
provided
that the relative benefits received by the
prospective sellers shall be deemed not to exceed the net proceeds received by such sellers.
The relative fault of such indemnifying party and indemnified parties shall be determined
by reference to, among other things, whether any violation has been committed by, or relates
to information supplied by, such indemnifying party or indemnified parties, and the parties
relative intent, knowledge, access to information and opportunity to correct or prevent such
violation. The amount paid or payable by a party as a result of Losses shall be deemed to
include, subject to the limitations set forth in
Section 6(a)
and
Section
6(b)
, any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding. The obligations, if any, of the selling
holders to contribute as provided in this
Section 6(e)
are several in proportion to
the relative value of their respective Registrable Securities covered by such registration
statement and not joint. In addition, no Person shall be obligated to contribute hereunder
any amounts in payment for any settlement of any action or Loss effected without such
Persons consent, which shall not be unreasonably withheld.
(ii) The parties hereto agree that it would not be just and equitable if contribution
pursuant to this
Section 6(e)
were determined solely by pro rata allocation or by
any other method of allocation which does not take into account the equitable considerations
referred to in
Section 6(e)(i)
; provided, however, that with respect to any pro rata
allocation, the holders of Registrable Securities included in any such registration shall be
deemed to have only received the net proceeds from such holders sales of Registrable
Securities in such registration. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
7.
Participation in Underwritten Registrations
.
(a) No Person may participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Persons securities on the basis provided
11
in any underwriting arrangements approved by the Person or Persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the terms of such
underwriting arrangements. Each holder of Registrable Securities agrees to execute and deliver
such other agreements as may be reasonably requested by the Company and the lead managing
underwriter(s) that are consistent with such holders obligations under Section 3 or that are
necessary to give further effect thereto. No such holder shall be required to make any
representations or warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such holder and such holders Registrable
Securities.
(b) Each Person that is participating in any registration hereunder agrees that, upon receipt
of any notice from the Company of the happening of any event of the kind described in
Section
4(e)(i)
, such Person will forthwith discontinue the disposition of its Registrable Securities
pursuant to the applicable registration statement until such Persons receipt of the copies of a
supplemented or amended prospectus as contemplated by
Section 4(e)(i)
. In the event the
Company shall give any such notice, the applicable time period mentioned in
Section 4(b)
during which a Registration Statement is to remain effective shall, to the extent possible, be
extended by the number of days during the period from and including the date of the giving of such
notice pursuant to
Section 4(e)(i)
to and including the date when each seller of a
Registrable Security covered by such registration statement shall have received the copies of the
supplemented or amended prospectus contemplated by
Section 4(e)(i)
.
(c) In connection with the preparation and filing of each registration statement under the
Securities Act pursuant to this Agreement, the Company shall (i) give representatives (designated
to the Company in writing) of each holder of Registrable Securities or group of holders, the
underwriters, if any, and one firm of counsel, one firm of accountants and one firm of other agents
retained on behalf of all underwriters and one firm of counsel, one firm of accountants and one
firm of other agents retained by holders of a majority of Registrable Securities covered by such
registration statement on behalf of all holders of Registrable Securities registered under such
registration statement, the reasonable opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the Securities and Exchange
Commission, and each amendment thereof or supplement thereto, (ii) upon reasonable advance notice
to the Company, give each of them such reasonable access to all financial and other records,
corporate documents and properties of the Company and its Subsidiaries, as shall be necessary, in
the reasonable opinion of such holders and such underwriters counsel, to conduct a reasonable due
diligence investigation for purposes of the Securities Act, and (iii) upon reasonable advance
notice to the Company, provide such reasonable opportunities to discuss the business of the Company
with its officers, directors, employees and the independent public accountants who have certified
its financial statements as shall be necessary, in the reasonable opinion of such holders and such
underwriters counsel, to conduct a reasonable due diligence investigation for purposes of the
Securities Act.
8.
Effective Time
. This Agreement shall be effective in accordance with the terms and
conditions set forth in the Plan and the confirmation order related thereto.
12
9.
Definitions
.
Affiliate
of any particular Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person.
Agreement
has the meaning specified in the first paragraph hereof.
Board
means the board of directors of the Company.
Closing Price
means on any particular date (a) if the Common Stock is then listed or
quoted on a Trading Market, (i) the closing price per share of Common Stock on such date on the
principal Trading Market (as reported by Bloomberg L.P. or a similar organization or agency
succeeding to its functions of reporting prices) or (ii) if there shall have been no sales of
Common Stock on such principal Trading Market on such day, the average of the reported closing bid
and asked prices per share of Common Stock on such principal Trading Market (as reported by
Bloomberg L.P. or a similar organization or agency succeeding to its functions of reporting
prices), (b) if the Common Stock is not then listed or quoted on a Trading Market and if prices for
the Common Stock are then reported in the pink sheets published by Pink OTC Markets, Inc. (or a
similar organization or agency succeeding to its functions of reporting prices), the average of the
reported closing bid and asked prices per share of Common Stock so reported or (c) if the shares of
Common Stock are not then publicly traded the fair market value as of such date of a share of
Common Stock as reasonably determined in good faith by the Board of Directors of the Company.
Common Stock
means the shares of common stock of the Company, par value $0.01 per
share.
Company
has the meaning specified in the preamble hereto.
Company Notice
has the meaning specified in
Section 1(b)
.
control
(including the terms controlling, controlled by and under common
control with) means the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person, whether through the ownership of voting
shares, by contract, or otherwise.
Demand Notice
has the meaning specified in
Section 1(b)
.
Demand Registration
has the meaning specified in
Section 1(a)
.
Effective Date
has the meaning assigned to such term in the Plan.
Exchange Act
means the Securities Exchange Act of 1934, as amended from time to
time.
FINRA
shall mean the Financial Industry Regulatory Authority.
13
Person
means an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political subdivision thereof.
Piggyback Registration
has the meaning specified in
Section 2(a)
.
Plan
means the Joint Plan of Reorganization under chapter 11 of title 11 of the
United States Code of Lear Corporation, et al., Case No. 09-14326, as confirmed on November 5,
2009 by order of the United States Bankruptcy Court for the Southern District of New York.
Registrable Securities
means (i) any shares of Common Stock issued on or after the
Effective Date to or otherwise acquired by Persons who are parties hereto (including, without limitation, any shares of
Common Stock issued pursuant to the Plan) and any shares of Common Stock issued upon the conversion
or exercise of any other securities of the Company (together with any securities issued or issuable
with respect to any of the foregoing securities by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation or other
reorganization, or upon conversion or exercise of any such securities) and (ii) any Warrants issued
to or otherwise acquired by Persons who are parties hereto;
provided
, that such securities shall cease to be
Registrable Securities when they have been (A) effectively registered under the Securities Act and
disposed of in accordance with the registration statement covering them or (B) distributed to the
public through a broker, dealer or market maker pursuant to Rule 144 under the Securities Act (or
any similar rule promulgated by the Securities and Exchange Commission then in force).
Registration Expenses
has the meaning specified in
Section 5(a)
.
Securities Act
means the Securities Act of 1933, as amended from time to time.
Securities and Exchange Commission
means the United States Securities and Exchange
Commission or any successor governmental agency.
Shelf Registration
has the meaning specified in
Section 1(e)
.
Subsidiary
means, with respect to any Person, any corporation, limited liability
company, partnership, association or other business entity of which (i) if a corporation, a
majority of the total voting power of shares of stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity, a majority of the membership, partnership or
other similar ownership interest thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more of the other Subsidiaries of that Person or a combination
thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a limited liability company, partnership, association or other business entity if such
Person or Persons shall be allocated a majority of the gains or losses of such limited liability
company, partnership, association or other business entity or shall be or control (or have the
power to
14
control) a managing director, manager or general partner of such limited liability company,
partnership, association or other business entity.
Trading Day
means (a) if the Common Stock is listed or quoted on a Trading Market, a
day on which the principal Trading Market is open for business or (b) if the Common Stock is not
listed or quoted on a Trading Market, a business day.
Trading Market
means any of the following markets or exchanges on which the Common
Stock is listed or quoted for trading on the date in question: the NYSE Amex Equities, the Nasdaq
Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange or the OTC Bulletin Board.
Warrants
means the warrants to purchase Common Stock issued on the Effective Date
pursuant to the Plan.
10.
Amendment, Modification and Waivers; Further Assurances
.
(a)
Amendment
. This Agreement may be amended with the consent of the Company, and the
Company may take any action herein prohibited, or omit to perform any act herein required to be
performed by it, in each case only if the Company shall have obtained the prior written consent of
the holders of at least a majority of the Registrable Securities then outstanding to such
amendment, action or omission to act;
provided
that if any such amendment or waiver is to a
provision in this Agreement that requires a specific vote to take an action thereunder or to take
an action with respect to the matters described therein, such amendment or waiver shall not be
effective unless such specific vote is obtained with respect to such amendment or waiver.
Notwithstanding the foregoing, additional Persons may from time to time become parties to this
Agreement in accordance with
Section 14
.
(b)
Effect of Waiver
. No waiver of any terms or conditions of this Agreement shall
operate as a waiver of any other breach of such terms and conditions or any other term or
condition, nor shall any failure to enforce any provision hereof operate as a waiver of such
provision or of any other provision hereof. No written waiver hereunder, unless it by its own terms
explicitly provides to the contrary, shall be construed to effect a continuing waiver of the
provisions being waived and no such waiver in any instance shall constitute a waiver in any other
instance or for any other purpose or impair the right of the party against whom such waiver is
claimed in all other instances or for all other purposes to require full compliance with such
provision.
(c)
Further Assurances
. Each of the parties hereto shall execute all such further
instruments and documents and take all such further action as any other party hereto may reasonably
require in order to effectuate the terms and purposes of this Agreement.
11.
Calculation of Percentage or Number of Shares of Registrable Securities
. For
purposes of this Agreement, all references to a percentage or number of shares of Common Stock or
Common Stock underlying such Registrable Securities shall be calculated based upon the number of
shares of Common Stock or Common Stock underlying such Registrable Securities, as the case may be,
outstanding at the time such calculation is made and shall exclude any
15
Common Stock or Common Stock underlying such Registrable Securities, as the case may be,
beneficially owned by the Company or any Subsidiary of the Company. For the purposes of
calculating any percentage or number of shares of Common Stock or Common Stock underlying such
Registrable Securities as contemplated by the previous sentence, the term holder shall include
all Affiliates thereof (other than the Company and its Subsidiaries) beneficially owning any shares
of Common Stock or Common Stock underlying such Registrable Securities.
12.
Rule 144
. If the Company has a class of equity securities registered under the
Exchange Act, the Company shall take such actions reasonably necessary to enable the holders to
sell Registrable Securities without registration under the Securities Act to the maximum extent
permitted by the exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may be
amended from time to time or (b) any similar rules or regulations hereafter adopted by the
Securities and Exchange Commission, including, without limiting the generality of the foregoing,
filing on a timely basis all reports required to be filed under the Exchange Act.
13.
Assignment
. Any holder of Registrable Securities may transfer to any permitted
transferee (as permitted under applicable law) its Registrable Securities and its rights and
obligations under this Agreement;
provided
that such permitted transferee shall not be
deemed to be a holder of Registrable Securities or have any rights or obligations under this
Agreement unless and until such permitted transferee elects to become a party to this Agreement
within the time period and in accordance with the other requirements set forth in
Section
14
. Upon satisfaction of all requirements under
Section 14
, such permitted transferee
shall for all purposes be deemed to be a holder of Registrable Securities and shall be bound by
this Agreement as if it were an original party hereto.
14.
Parties to Agreement
. Any Person who receives Common Stock or Warrants on the
Effective Date pursuant to the terms of the Plan or is a permitted transferee of Registrable
Securities pursuant to
Section 13
shall have the right to elect to become a party to this
Agreement by (i) providing written notice of such election to the Company in accordance with
Section 16(h)
within 30 days after the Effective Date or the date of any transfer pursuant
to
Section 13
, as applicable, and (ii) promptly executing and returning to the Company a
counterpart signature page to this Agreement. The Company shall furnish, without charge, to each
Person referred to in the immediately preceding sentence a copy of this Agreement upon written
request to the Company in accordance with
Section 16(h)
. In addition, this Agreement shall
be filed with the Securities and Exchange Commission, and any Person may obtain a copy thereof for
execution from the Securities and Exchange Commissions internet site at http://www.sec.gov.
15.
Termination
. This Agreement and all rights and obligations of the parties
hereunder shall terminate automatically on November [___], 2012; provided, however, that the
parties respective obligations under
Sections 5, 6
and
16(g)
shall survive any
termination of this Agreement.
16.
Miscellaneous
.
16
(a)
No Inconsistent Agreements
. The Company shall not hereafter enter into any
agreement with respect to its securities which is inconsistent with or violates the rights granted
to the holders of Registrable Securities in this Agreement.
(b)
Remedies; Specific Performance
. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically, to recover damages caused by
reason of any breach of any provision of this Agreement and to exercise all other rights existing
in their favor. The parties hereto agree and acknowledge that money damages would not be an
adequate remedy for any breach of the provisions of this Agreement and that any party may in its
sole discretion apply to any court of law or equity of competent jurisdiction for specific
performance and/or injunctive relief (without posting any bond or other security) in order to
enforce or prevent violation of the provisions of this Agreement and shall not be required to prove
irreparable injury to such party or that such party does not have an adequate remedy at law with
respect to any breach of this Agreement (each of which elements the parties admit). The parties
hereto further agree and acknowledge that each and every obligation applicable to it and contained
in this Agreement shall be specifically enforceable against it and hereby waives and agrees not to
assert any defenses against an action for specific performance of their respective obligations
hereunder.
(c)
Successors and Assigns
. All covenants and agreements in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto (including any trustee in bankruptcy) whether so
expressed or not. In addition, whether or not any express assignment has been made, the provisions
of this Agreement which are for the benefit of purchasers or holders of Registrable Securities are
also for the benefit of, and enforceable by, any subsequent holder of Registrable Securities,
subject to all of the agreements and obligations hereunder.
(d)
Severability
. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall
be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
(e)
Counterparts
. This Agreement may be executed simultaneously in two or more
counterparts, any one of which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Agreement.
(f)
Descriptive Headings; Interpretation; No Strict Construction
. The descriptive
headings of this Agreement are inserted for convenience only and do not constitute a substantive
part of this Agreement. Whenever required by the context, any pronoun used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns,
pronouns, and verbs shall include the plural and vice versa. References to sections are to sections
of this Agreement unless otherwise stated. Reference to any agreement, document, or instrument
means such agreement, document, or instrument as amended or otherwise modified from time to time in
accordance with the terms thereof, and, if applicable, hereof. The words include, includes or
including in this Agreement shall be deemed to be followed by without limitation. The use of
the words or, either or any shall not be
17
exclusive. The parties hereto have participated jointly in the negotiation and drafting of
this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement
shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement.
(g)
Governing Law
. All issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without giving effect to any choice of law or conflict of
law rules or provisions (whether of the State of New York or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of New York.
(h)
Notices
. All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given when (a) delivered personally to the recipient, (b) telecopied to the recipient
(with hard copy sent to the recipient by reputable overnight courier service (charges prepaid) that
same day) if telecopied before 5:00 p.m. New York, New York time on a business day, and otherwise
on the next business day, or (c) one business day after being sent to the recipient by reputable
overnight courier service (charges prepaid). Such notices, demands and other communications shall
be sent to the Company at the address or facsimile number set forth below and to any holder of
Registrable Securities at such address or facsimile number as indicated by the Companys records,
or at such address or facsimile number or to the attention of such other person as the recipient
party has specified by prior written notice to the sending party. The Companys address is:
Lear Corporation
21557 Telegraph Drive
Southfield, Michigan 48033
Attn: General Counsel
Telephone: (248) 447-1500
Facsimile: (248) 447-1677
with a copy to:
Winston & Strawn LLP
35 West Wacker Drive
Chicago, Illinois 60601
Attn: Bruce A. Toth
Brian M. Schafer
Telephone: (312) 558-5600
Facsimile: (312) 558-5700
If any time period for giving notice or taking action hereunder expires on a day which is a
Saturday, Sunday or legal holiday in the State of New York or the jurisdiction in which the
Companys principal office is located, the time period shall automatically be extended to the
business day immediately following such Saturday, Sunday or legal holiday. The term legal
18
holiday shall mean any day on which commercial banks in New York City or the jurisdiction in
which the Companys principal office is located are authorized or required by law to be closed.
(i)
Delivery by Facsimile
. This Agreement, the agreements referred to herein, and each
other agreement or instrument entered into in connection herewith or therewith or contemplated
hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by
means of a facsimile machine, shall be treated in all manner and respects as an original agreement
or instrument and shall be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. At the request of any party hereto or to any
such agreement or instrument, each other party hereto or thereto shall reexecute original forms
thereof and deliver them to all other parties. No party hereto or to any such agreement or
instrument shall raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the use of a facsimile
machine as a defense to the formation or enforceability of a contract and each such party forever
waives any such defense.
(j)
Waiver of Jury Trial
. Each of the parties to this Agreement hereby agrees to waive
its respective rights to a jury trial of any claim or cause of action based upon or arising out of
this Agreement. The scope of this waiver is intended to be all-encompassing of any and all disputes
that may be filed in any court and that relate to the subject matter of this Agreement, including
contract claims, tort claims and all other common law and statutory claims. Each party hereto
acknowledges that this waiver is a material inducement to enter into this Agreement, that each has
already relied on this waiver in entering into this Agreement, and that each will continue to rely
on this waiver in their related future dealings. Each party hereto further warrants and represents
that it has reviewed this waiver with its legal counsel and that it knowingly and voluntarily
waives its jury trial rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SECTION 16(J) AND EXECUTED BY EACH OF THE PARTIES HERETO),
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT. In the event of litigation, this Agreement may be filed as a written consent to a
trial by the court.
(k)
Third Party Beneficiaries
. This Agreement is solely for the benefit of the parties hereto and no provision of this
Agreement, including any representations, warranties or covenants set forth herein, shall be deemed
to confer upon any third party any rights, remedies, claims, or causes of action, except that (i)
underwriters shall be third party beneficiaries to the extent provided in
Section 3(a)
hereof and (ii) Persons entitled to indemnification or contribution under
Section 6
shall
be third party beneficiaries of
Section 6
hereof.
(l)
Arms Length Agreement
. Each of the parties to this Agreement agrees and
acknowledges that this Agreement has been negotiated in good faith, at arms length, and not by any
means prohibited by law.
19
(m)
Sophisticated Parties; Advice of Counsel
. Each of the parties to this Agreement
specifically acknowledges that (a) it is a knowledgeable, informed, sophisticated Person capable of
understanding and evaluating the provisions set forth in this Agreement and (b) it has been fully
advised and represented by, or has had the opportunity to retain, legal counsel of its own
independent selection and has relied wholly upon its independent judgment and the advice of such
counsel in negotiating and entering into this Agreement.
(n)
Entire Agreement
. This Agreement constitutes the entire agreement and
understanding of the parties hereto in respect of the subject matter contained herein, and there
are no restrictions, promises, representations, warranties, covenants, or undertakings with respect
to the subject matter hereof, other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between the parties hereto with
respect to the subject matter hereof.
[signature page follows]
20
IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of
the date first written above.
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LEAR CORPORATION
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/s/ Matthew J. Simoncini
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By:
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Matthew J. Simoncini
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Its:
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Senior Vice President
and
Chief Financial Officer
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Exhibit 10.1
EXECUTION VERSION
$550,000,000
SECOND LIEN CREDIT AGREEMENT
among
LEAR CORPORATION
(as reorganized pursuant to and under the Plan of Reorganization)
The Several Lenders from Time to Time Parties Hereto,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent
Dated as of November 9, 2009
J. P. MORGAN SECURITIES INC.,
as Sole Lead Arranger and Sole Bookrunner
TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS
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1
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1.1. Defined Terms
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1
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1.2. Other Definitional Provisions
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23
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SECTION 2. AMOUNT AND TERMS OF LOANS
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23
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2.1. Loans
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2.2. [Reserved]
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24
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2.3. [Reserved]
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24
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2.4. Maturity and Repayment of Loans
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24
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2.5. [Reserved]
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24
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2.6. Prepayment Premium; Fees
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24
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2.7. [Reserved]
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24
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2.8. Optional Prepayments
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24
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2.9. Mandatory Prepayments
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24
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2.10. Conversion and Continuation Options
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25
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2.11. Limitations on Eurodollar Tranches
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26
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2.12. Interest Rates and Payment Dates
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26
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2.13. Computation of Interest and Fees
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27
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2.14. Inability to Determine Interest Rate
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27
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2.15. Pro Rata Treatment and Payments
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27
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2.16. Requirements of Law
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28
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2.17. Taxes
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29
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2.18. Indemnity
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31
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2.19. Change of Lending Office
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32
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2.20. Intercreditor Agreement
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32
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2.21. No Requirement of Lender Signatures
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SECTION 3. [RESERVED]
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32
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SECTION 4. REPRESENTATIONS AND WARRANTIES
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32
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4.1. No Change
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4.2. Existence; Compliance with Law
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4.3. Power; Authorization; Enforceable Obligations
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4.4. No Legal Bar
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4.5. Litigation
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4.6. No Default
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4.7. Ownership of Property; Liens
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4.8. Intellectual Property
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4.9. Taxes
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34
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4.10. Federal Regulations
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34
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4.11. Labor Matters
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34
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4.12. ERISA
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34
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4.13. Investment Company Act; Other Regulations
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4.14. Subsidiaries
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4.15. [Reserved]
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Page
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4.16. Environmental Matters
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35
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4.17. Accuracy of Information, etc.
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36
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4.18. Financial Statements
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36
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4.19. Insurance
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36
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4.20. Security Documents
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4.21. Solvency
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4.22. Regulation H
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37
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SECTION 5. CONDITIONS PRECEDENT
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38
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SECTION 6. AFFIRMATIVE COVENANTS
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41
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6.1. Financial Statements
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41
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6.2. Certificates; Other Information
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42
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6.3. Payment of Obligations
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6.4. Maintenance of Existence; Compliance
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6.5. Maintenance of Property; Insurance
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6.6. Inspection of Property; Books and Records; Discussions
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6.7. Notices
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6.8. Environmental Laws
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6.9. Additional Collateral, etc.
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6.10. Post-Closing Matters
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SECTION 7. NEGATIVE COVENANTS
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7.1. Financial Covenants
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48
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7.2. Indebtedness
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49
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7.3. Liens
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52
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7.4. Fundamental Changes
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55
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7.5. Disposition of Property
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55
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7.6. Restricted Payments
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56
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7.7. Investments
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57
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7.8. Transactions with Affiliates
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58
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7.9. Swap Agreements
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7.10. Changes in Fiscal Periods
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58
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7.11. Negative Pledge Clauses
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7.12. Clauses Restricting Subsidiary Distributions
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7.13. Lines of Business
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7.14. [Reserved]
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7.15. Optional Payments in respect of Certain Debt Instruments
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7.16. Sale and Leasebacks
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60
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SECTION 8. EVENTS OF DEFAULT
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8.1. Events of Default
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60
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SECTION 9. THE AGENTS
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9.1. Appointment
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9.2. Delegation of Duties
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9.3. Exculpatory Provisions
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9.4. Reliance by Agents
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9.5. Notice of Default
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9.6. Non-Reliance on Agents and Other Lenders
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9.7. Indemnification
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Page
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9.8. Agent in Its Individual Capacity
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9.9. Successor Administrative Agent
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9.10. Execution of Loan Documents
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9.11. Collateral Agent
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SECTION 10. MISCELLANEOUS
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10.1. Amendments and Waivers
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65
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10.2. Notices
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10.3. No Waiver; Cumulative Remedies
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10.4. Survival of Representations and Warranties
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10.5. Payment of Expenses and Taxes
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10.6. Successors and Assigns; Participations and Assignments
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10.7. Adjustments; Set-off
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10.8. Counterparts
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10.9. Severability
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10.10. Integration
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10.11. GOVERNING LAW
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10.12. Submission To Jurisdiction; Waivers
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10.13. Acknowledgements
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10.14. Releases of Guarantees and Liens
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10.15. Confidentiality
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10.16. WAIVERS OF JURY TRIAL
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10.17. USA Patriot Act
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iii
SCHEDULES:
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1.1A
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Loan Amounts
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1.1B
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Mortgaged Property
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4.3
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Consents, Authorizations, Filings and Notices
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4.14
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Subsidiaries
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4.20(a)
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UCC Filing Jurisdictions
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4.20(b)
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Mortgage Filing Jurisdictions
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6.10
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Post-Closing Matters
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7.2(d)
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Existing Indebtedness
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7.3(f)
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Existing Liens
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EXHIBITS
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A
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Form of Intercompany Subordinated Note
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B
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Form of Assignment and Assumption
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C
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Form of Compliance Certificate
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D
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Form of Second Lien Guarantee and Collateral Agreement
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E
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Form of Intercreditor Agreement
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F
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Form of Exemption Certificate
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G
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Form of Closing Certificate
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iv
SECOND LIEN CREDIT AGREEMENT (this
Agreement
), dated as of November 9, 2009, among
(i) LEAR CORPORATION, a Delaware corporation, as reorganized pursuant to and under the Plan of
Reorganization (as defined below) (the
Borrower
), (ii) the several banks and other
financial institutions or entities from time to time parties to this Agreement (consisting
initially of the holders of Prepetition Credit Agreement Secured Claims (as defined below)) (the
Lenders
), and (iii) JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity,
the
Administrative Agent
) and as collateral agent for the Lenders (in such capacity, the
Collateral Agent
).
INTRODUCTORY STATEMENT:
WHEREAS, on July 7, 2009 (the
Petition Date
), the Borrower and certain of its
subsidiaries (the
Debtors
) filed voluntary petitions for relief under Chapter 11 of Title
11 of the United States Code (as amended, the
Bankruptcy Code
) in the United States
Bankruptcy Court for the Southern District of New York (the
Bankruptcy Court
) and
continued in the possession of their property and in the management of their businesses pursuant to
Sections 1107 and 1108 of the Bankruptcy Code;
WHEREAS, it is expected that on or about November 5, 2009, the Bankruptcy Court will enter the
Confirmation Order confirming the Debtors First Amended Joint Plan of Reorganization Under Chapter
11 of the Bankruptcy Code, dated September 18, 2009 (as in effect on the date of confirmation
thereof and as thereafter may be amended, the
Plan of Reorganization
); and
WHEREAS, in connection with the confirmation and implementation of the Plan of Reorganization,
the reorganized Debtors shall issue to the holders of Prepetition Credit Agreement Secured Claims,
certain second lien term loans, and in partial satisfaction of the Prepetition Credit Agreement
Secured Claims, the holders of the Prepetition Credit Agreement Secured Claims shall automatically
become parties to this Agreement on the Effective Date.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1.
Defined Terms
. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective
meanings set forth in this Section 1.1.
ABR
: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds
Effective Rate in effect on such day plus
1
/
2
of 1% and (c) the Eurodollar Rate with a one-month
Interest Period commencing on such day plus 1.0%;
provided
, that in no event shall ABR be
less than 4.50% per annum. Any change in the ABR due to a change in the Prime Rate, the Federal
Funds Effective Rate or such Eurodollar Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate, the Federal Funds Effective Rate or such
Eurodollar Rate, respectively.
ABR Loans
: Loans the rate of interest applicable to which is based upon the ABR.
Acquisition
: any transaction or series of related transactions for the purpose of
or resulting, directly or indirectly, in (a) the acquisition of all or a substantial portion of the
assets of a Person, or of all or a substantial portion of any business or division of a Person,
(b) the acquisition of in excess of 50% of the capital stock, partnership interests, membership
interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or any
other combination with another Person (other than a Person that is already a Subsidiary).
Administrative Agent
: JPMorgan Chase Bank, N.A., together with its affiliates, as
the arranger of the Loans and as the administrative agent for the Lenders under this Agreement and
the other Loan Documents, together with any of its successors.
Affiliate
: as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person. For purposes of this
definition, control of a Person means the power, directly or indirectly, either to (a) vote 10%
or more of the securities having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
Agent Indemnitees
: as defined in Section 9.7.
Agents
: the collective reference to the Administrative Agent and the Collateral
Agent.
Agreement
: as defined in the preamble hereto.
Applicable Margin
: a percentage per annum equal to (a) for ABR Loans, (i) prior to
the date which is 18 calendar months after the Closing Date, 4.50%, (ii) for the next 12 months
thereafter, 5.50% and (iii) thereafter, 6.50% and (b) for Eurodollar Loans, (i) prior to the date
which is 18 calendar months after the Closing Date, 5.50%, (ii) for the next 12 months thereafter,
6.50% and (iii) thereafter, 7.50%;
provided
that, for any Interest Period in which the
Borrower makes a PIK Election with respect to any Loans, the Applicable Margin for such Loans shall
be increased by 1.0% per annum for such Interest Period.
Approved Fund
: any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary
course and that is administered or managed by (a) a Lender, (b) an affiliate of a Lender or (c) an
entity or an affiliate of an entity that administers or manages a Lender.
Asset Sale
: any Disposition of property or series of related Dispositions of
property excluding any such Disposition permitted by Section 7.5(a) through (l).
Assignee
: as defined in Section 10.6(b).
Assignment and Assumption
: an Assignment and Assumption, substantially in the form
of Exhibit B.
Bankruptcy Code
: as defined in the recitals hereto.
Bankruptcy Court
: as defined in the recitals hereto.
Benefited Lender
: as defined in Section 10.7(a).
Board
: the Board of Governors of the Federal Reserve System of the United States
(or any successor).
Borrower
: as defined in the preamble hereto.
Business
: as defined in Section 4.16(b).
2
Business Day
: a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close,
provided
, that with
respect to notices and determinations in connection with, and payments of principal and interest
on, Eurodollar Loans, such day is also a day for trading by and between banks in Dollar deposits in
the interbank eurodollar market.
Call Premium
: as defined in Section 2.6(a).
Canadian Court
: the Ontario Superior Court of Justice, Commercial List.
Canadian Debtors
: the Borrowers Canadian Subsidiaries that are Debtors.
Capital Expenditures
: for any period, with respect to any Person, the aggregate of
all expenditures by such Person and its Subsidiaries for the acquisition or leasing (pursuant to a
capital lease) of fixed or capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period) that should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries, but excluding (i) such expenditures
that are made in connection with the purchase, replacement, substitution or restoration of assets
to the extent of (A) insurance proceeds (or other similar recoveries) paid (or reasonably expected
to be paid) on account of the loss of or damage to assets or (b) cash awards of compensation
arising from (or reasonably expected to arise from) the taking by eminent domain or condemnation of
assets, (ii) such expenditures that are made with all or any portion of a Reinvestment Deferred
Amount, (iii) capitalized interest, (iv) such expenditures for which such Person is or reasonably
expects to be reimbursed in cash by a third party (other than any Group Member), (v) such
expenditures that are made with the proceeds of an Excluded Issuance and (vi) such expenditures
that are made to fund the purchase price for assets acquired in Permitted Acquisitions.
Capital Lease Obligations
: as to any Person, the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes
of this Agreement, the amount of such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with GAAP.
Capital Stock
: any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants, rights or options to purchase any
of the foregoing.
Cases
: the cases of the Debtors before the Bankruptcy Court.
Cash Election
: as defined in Section 2.12(c).
Cash Equivalents
: (a) securities issued or unconditionally guaranteed or insured by
the United States Government, the Canadian Government, Japan or any member of the European Union or
any other government approved by the Administrative Agent (which approval shall not be unreasonably
withheld), (b) securities issued or unconditionally guaranteed or insured by any state of the
United States of America or province of Canada or any agency or instrumentality thereof having
maturities of not more than twelve months from the date of acquisition and having one of the two
highest ratings obtainable from either S&P or Moodys, (c) time deposits, certificates of deposit
and bankers acceptances having maturities of not more than twelve months from the date of
acquisition, in each case with any Lender (or
any affiliate of any thereof) or with any commercial bank organized under the laws of the
United States of America or any state thereof or the District of Columbia, Japan, Canada or any
member of the European
3
Union or any U.S. branch of a foreign bank having at the date of acquisition
capital and surplus of not less than $100,000,000, (d) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clauses (a), (b) and (c)
entered into with any bank meeting the qualifications specified in clause (c) above, (e) commercial
paper issued by the parent corporation of any Lender and commercial paper rated, at the time of
acquisition, at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by
Moodys and in either case maturing within twelve months after the date of acquisition, (e)
deposits maintained with money market funds having total assets in excess of $300,000,000, (f)
demand deposit accounts maintained in the ordinary course of business with banks or trust
companies, (g) temporary deposits, of amounts received in the ordinary course of business pending
disbursement of such amounts, in demand deposit accounts in banks outside the United States, (h)
deposits in mutual funds which invest substantially all of their assets in preferred equities
issued by U.S. corporations rated at least AA (or the equivalent thereof) by S&P;
provided
, that notwithstanding the foregoing, Cash Equivalents shall, in any event, include
all cash and cash equivalents as set forth in the Borrowers balance sheet prepared in accordance
with GAAP, and (i) other investments requested by the Borrower and approved by the Administrative
Agent.
CCAA Cases
: the cases commenced by the Canadian Debtors in the Canadian Court under
Section 18.6 of the Companies Creditors Arrangement Act.
Change of Control
: after the occurrence of the Effective Date, (a) the acquisition
of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof), of Capital Stock representing more than 35%
of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of
the Borrower; or (b) occupation of a majority of the seats (other than vacant seats) on the board
of directors of the Borrower by Persons who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed by directors so nominated.
Chinese Acceptance Notes
: acceptance notes issued by Chinese banks in the ordinary
course of business for the account of any direct or indirect Chinese Subsidiary of the Borrower or
customers thereof to effect the current payment of goods and services in accordance with customary
trade terms in China.
Closing Date
: the date on which the conditions precedent set forth in Section 5
shall have been satisfied or waived and the issuance of the Loans occurs.
Code
: the Internal Revenue Code of 1986, as amended from time to time.
Collateral
: all property of the Loan Parties (other than Excluded Property), now
owned or hereafter acquired upon which a Lien is purported to be created by any Security Document.
Collateral Agent
: as defined in the preamble hereto.
Commonly Controlled Entity
: an entity, whether or not incorporated, that is under
common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group
that includes the Borrower and that is treated as a single employer under Section 414 of the Code.
Compliance Certificate
: a certificate of the Borrower duly executed by a
Responsible Officer, on behalf of the Borrower, substantially in the form of Exhibit C.
4
Conduit Lender
: any special purpose corporation organized and administered by any
Lender for the purpose of making or receiving Loans otherwise required to be made or received by
such Lender and designated by such Lender in a written instrument;
provided
, that the
designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of
its obligations to fund a Loan under this Agreement if, for any reason, its Conduit Lender fails to
fund any such Loan, and the designating Lender (and not the Conduit Lender) shall have the sole
right and responsibility to deliver all consents and waivers required or requested under this
Agreement with respect to its Conduit Lender, and
provided
,
further
, that no
Conduit Lender shall (a) be entitled to receive any greater amount pursuant to Section 2.16, 2.17,
2.18 or 10.5 than the designating Lender would have been entitled to receive in respect of the
extensions of credit made by such Conduit Lender or (b) be deemed to have any Loan Amount.
Confirmation Order
: as defined in Section 5(h).
Consolidated Assets
: at a particular date, all amounts which would be included
under total assets on a consolidated balance sheet of the Borrower and its Subsidiaries as at such
date, determined in accordance with GAAP.
Consolidated Current Assets
: at any date, all amounts (other than cash and Cash
Equivalents) that would, in conformity with GAAP, be set forth opposite the caption total current
assets (or any like caption) on a consolidated balance sheet of Borrower and its Subsidiaries at
such date.
Consolidated Current Liabilities
: at any date, all amounts that would, in
conformity with GAAP, be set forth opposite the caption total current liabilities (or any like
caption) on a consolidated balance sheet of the Borrower and its Subsidiaries at such date, but
excluding the current portion of any Funded Debt of the Borrower and its Subsidiaries.
Consolidated EBITDA
: for any period (and calculated without duplication),
Consolidated Net Income for such period excluding (a) any extraordinary and non-recurring non-cash
expenses, losses, income or gains as determined in accordance with GAAP, (b) charges, premiums,
expenses and any gains associated with the discharge of Indebtedness, (c) charges relating to
FAS 106, (d) any non-cash income included, and any non-cash deductions made, in determining
Consolidated Net Income for such period (other than any deductions which represent the accrual of
or a reserve for the payment of cash charges in any future period),
provided
that cash
payments made in any subsequent period in respect of any item for which any such non-cash deduction
was excluded in a prior period shall be deemed to reduce Consolidated Net Income by such amount in
such subsequent period, (e) stock compensation expense and non-cash equity linked expense,
(f) deferred financing fees (and any write-offs thereof), (g) write-offs of goodwill, (h) an
aggregate amount of up to (i) $200,000,000 for fiscal year 2009, and (ii) $150,000,000 for each
fiscal year thereafter (
provided
that up to $25,000,000 of such amount may be carried
forward to the following fiscal year or carried back to the preceding fiscal year) in respect of
restructuring, restructuring-related or other similar charges, (i) fees, costs, charges,
commissions and expenses or other charges incurred during such period in connection with this
Agreement, the DIP Credit Agreement, the Cases, the Plan of Reorganization and the transactions
contemplated by the foregoing, including the write-off of receivables of Chrysler, GM and their
affiliates as a result of their respective bankruptcy filings, the termination or settlement of
executory contracts, professional and accounting costs fees and expenses, management incentive,
employee retention or similar plans (in each case to the extent such plan is approved by the
Bankruptcy Court to the extent required), litigation costs and settlements, asset write-downs,
income and gains recorded in connection with the corporate reorganization effected in connection
with the winding up the Debtors prior to emergence, (j) foreign exchange gains and losses and (k)
any state or local taxes, plus, to the extent deducted in determining Consolidated Net Income, the
sum of (A) Consolidated Interest Expense, (B) any expenses for taxes, (C) depreciation and
amortization expense, (D) minority interests in income (or
5
losses) of Subsidiaries and (E) net equity earnings (and losses) in Affiliates (excluding
Subsidiaries). For purposes of calculating the ratios set forth in Section 7.1(a) and (b),
Consolidated EBITDA for any fiscal period shall in any event include the Consolidated EBITDA for
such fiscal period of any entity acquired by the Borrower or any of its Subsidiaries in a Permitted
Acquisition during such period. Notwithstanding the foregoing, for purposes of calculating
Consolidated EBITDA for each of the four fiscal quarter periods ending December 31, 2009, March 31,
2010 and June 30, 2010, Consolidated EBITDA for such four fiscal quarter periods shall equal
Consolidated EBITDA for the period commencing on October 1, 2009 and ending on December 31, 2009,
April 3, 2010 and July 3, 2010, as applicable, multiplied by 4, 2 and 4/3, respectively.
Consolidated Interest Expense
: for any period, the amount which would, in
conformity with GAAP, be set forth opposite the caption interest expense (or any like caption) on
a consolidated income statement of the Borrower and its Subsidiaries for such period and, to the
extent not otherwise included in interest expense, any other discounts and expenses comparable to
or in the nature of interest under any Receivable Financing Transaction;
provided
, that
Consolidated Interest Expense for any period shall (a) exclude (i) fees payable in respect of such
period under Section 2.6, (ii) any amortization or write-off of deferred financing fees during such
period, (iii) premiums paid in connection with the discharge of Indebtedness, (iv) any non-cash
expense, and (v) interest payments made by the Debtors during the pendency of the Cases on
pre-petition Indebtedness, and (b) include any interest income during such period.
Consolidated Leverage Ratio
: as at the last day of any period of four consecutive
fiscal quarters, the ratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA
for such period.
Consolidated Net Income
: for any period, the consolidated net income (or deficit)
of the Borrower and its Subsidiaries for such period (taken as a cumulative whole), determined in
accordance with GAAP;
provided
that any provision for post-retirement medical benefits, to
the extent such provision calculated under FAS 106 exceeds actual cash outlays calculated on the
pay as you go basis, shall not to be taken into account.
Consolidated Revenues
: for any fiscal period, the consolidated revenues of the
Borrower and its Subsidiaries for such period, determined in accordance with GAAP.
Consolidated Total Tangible Assets
: as of any date of determination thereof, the
aggregate consolidated book value of the assets of the Borrower and its Subsidiaries (other than
patents, patent rights, trademarks, trade names, franchises, copyrights, licenses, permits,
goodwill and other similar intangible assets properly classified as such in accordance with GAAP)
after all appropriate adjustments (including, without limitation, reserves for doubtful
receivables, obsolescence, depreciation and amortization), all as set forth in the most recent
consolidated balance sheet of the Borrower delivered pursuant to Section 6.1 on such date of
determination, determined on a consolidated basis in accordance with GAAP.
Consolidated Total Debt
: at any date, the aggregate principal amount of all
Indebtedness of the Borrower and its Subsidiaries at such date, determined on a consolidated basis,
that would be required to be shown as debt on a balance sheet of the Borrower prepared in
accordance with GAAP, but excluding Chinese Acceptance Notes and Earn-outs;
provided
that
solely with respect to the definition of ECF Percentage, Consolidated Total Debt shall be
determined as set forth above, but net of cash and Cash Equivalents of the Borrower and its
Subsidiaries in excess of $650,000,000 on the date of determination.
6
Consolidated Working Capital
: at any date, the excess of Consolidated Current
Assets on such date
over
Consolidated Current Liabilities on such date.
Consummation Date
: the date of substantial consummation (as defined in Section 1101
of the Bankruptcy Code) of the Plan of Reorganization.
Contractual Obligation
: as to any Person, any provision of any security issued by
such Person or of any agreement, instrument or other undertaking to which such Person is a party or
by which it or any of its property is bound.
Debtors
: as defined in the preamble.
Default
: any of the events specified in Section 8.1, whether or not any requirement
for the giving of notice, the lapse of time, or both, has been satisfied.
Defaulting Lender
any Lender that (a) has failed to pay over to the Administrative
Agent or any other Lender any amount required to be paid by it hereunder within one (1) Business
Day of the date when due, unless such failure is the subject of a good faith dispute or
subsequently cured (in which case such Lender shall cease to be a Defaulting Lender as of the date
of such cure), or (b) has been deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.
DIP Agent
: JPMorgan Chase Bank, N.A. in its capacity as administrative agent for the
lenders under the DIP Credit Agreement.
DIP Credit Agreement
: the Credit and Guarantee Agreement, dated as of July 6, 2009
among the Borrower and certain of its Subsidiaries, the lenders from time to time party thereto,
the DIP Agent and the other parties thereto, as amended, supplemented or otherwise modified prior
to the date hereof.
DIP Facility
: the term loan facility made available under the DIP Credit Agreement.
Disclosure Statement
: the disclosure statement in respect of the Plan of
Reorganization, in form and substance reasonably satisfactory to the Administrative Agent,
distributed to certain holders of claims (as defined in Section 101(5) of the Bankruptcy Code)
against the Debtors.
Disposition
: with respect to any property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof, excluding any such transaction that
yields Net Cash Proceeds to any Group Member (valued at the initial principal amount thereof in the
case of non-cash proceeds consisting of notes or other debt securities and valued at fair market
value in the case of other non-cash proceeds) of $1,000,000 or less. The terms
Dispose
and
Disposed of
shall have correlative meanings.
Dollars
and
$
: dollars in lawful currency of the United States.
Domestic Subsidiary
: any Subsidiary of the Borrower organized under the laws of any
jurisdiction within the United States.
Earn-outs
: with respect to any Person, obligations of such Person arising from a
Permitted Acquisition which are payable to the seller based on the achievement of specified
financial results over time. The amount of any Earn-outs at any time for the purpose of this
Agreement shall be the amount earned and due to be paid at such time.
7
ECF Percentage
: for any fiscal year (or, in the case of the first period, the
portion of the fiscal year following the first anniversary of the Closing Date), (a) 50% if the
Consolidated Leverage Ratio exceeds 1.75 to 1.00 as of the last day of such fiscal year, (b) 25% if
the Consolidated Leverage Ratio is equal to or less than 1.75 to 1.00 but exceeds 0.50 to 1.00 as
of the last day of such fiscal year and (c) 0% if the Consolidated Leverage Ratio is equal to or
less than 0.50 to 1.00 as of the last day of such fiscal year.
Effective Date
: the effective date of the Plan of Reorganization.
Eligible Assignee
: (a) a commercial bank, financial institution, financial company,
fund or insurance company that is engaged in making, purchasing, holding or investing in bank loans
and similar extensions of credit in the ordinary course or (b) any other Person that is not a
competitor of the Borrower or any of its Subsidiaries or an affiliate of any such competitor.
Environmental Laws
: any and all foreign, Federal, state, local or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental
Authority or other Requirements of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the environment, as now
or may at any time hereafter be in effect.
Equity Sweep Percentage
: at any time, (a) 50% if the Consolidated Leverage Ratio
exceeds 1.75 to 1.00 as of the last day of the most recent period of four consecutive fiscal
quarters of the Borrower, (b) 25% if the Consolidated Leverage Ratio is equal to or less than 1.75
to 1.00 but exceeds 1.00 to 1.00 as of the last day of the most recent period of four consecutive
fiscal quarters of the Borrower and (c) 0% if the Consolidated Leverage Ratio is equal to or less
than 1.00 to 1.00 as of the last day of the most recent period of four consecutive fiscal quarters
of the Borrower.
ERISA
: the Employee Retirement Income Security Act of 1974, as amended from time to
time.
ERISA Affiliate
: any trade or business (whether or not incorporated) that, together
with any Loan Party, is treated as a single employer under Section 414(b) or (c) of the Code or,
solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
ERISA Event
: (a) any Reportable Event; (b) the existence with respect to any Plan of
a non-exempt Prohibited Transaction; (c) any failure by any Single Employer Plan to satisfy the
minimum funding standards (within the meaning of Sections 412 or 430 of the Code or Section 302 of
ERISA) applicable to such Single Employer Plan, whether or not waived; (d) a determination that any
Single Employer Plan is in at risk status (within the meaning of Section 430 of the Code or Title
IV of ERISA); (e) the incurrence by any Loan Party or any of its ERISA Affiliates of any liability
under Title IV of ERISA with respect to the termination of any Single Employer Plan, including but
not limited to the imposition of any Lien in favor of the PBGC or any Single Employer Plan; (f) the
incurrence by any Loan Party or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by any
Loan Party or any of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan
from a Loan Party or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to be, Insolvent, in
Reorganization, or in endangered or critical status (within the meaning of Section 432 of the Code
or Section 305 or Title IV of ERISA.
8
Eurocurrency Reserve Requirements
: for any day as applied to a Eurodollar Loan, the
aggregate (without duplication) of the maximum rates (expressed as a decimal) of reserve
requirements in effect on such day (including basic, supplemental, marginal and emergency reserves)
under any regulations of the Board or other Governmental Authority having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred
to as Eurocurrency Liabilities in Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.
Eurodollar Base Rate
: with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, the rate per annum determined on the basis of the rate for
deposits in Dollars for a period equal to such Interest Period commencing on the first day of such
Interest Period appearing on Reuters Screen LIBOR01 page as of 11:00 A.M., London time, two
Business Days prior to the beginning of such Interest Period. In the event that such rate does not
appear on Reuters Screen LIBOR01 page (or otherwise on such screen), the
Eurodollar Base
Rate
shall be determined by reference to such other comparable publicly available service for
displaying eurodollar rates as may be reasonably selected by the Administrative Agent or, in the
absence of such availability, by reference to the rate at which the Administrative Agent is offered
Dollar deposits at or about 11:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurodollar market where its eurodollar and
foreign currency and exchange operations are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein.
Eurodollar Loans
: Loans the rate of interest applicable to which is based upon the
Eurodollar Rate.
Eurodollar Rate
: with respect to each day during each Interest Period pertaining to
a Eurodollar Loan, a rate per annum determined for such day in accordance with the following
formula (rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
1.00 Eurocurrency Reserve Requirements
;
provided
,
however
, notwithstanding the foregoing, the Eurodollar Rate shall
be the greater of (x) such rate determined pursuant to the foregoing formula and (y) 3.50% per
annum.
Eurodollar Tranche
: the collective reference to Eurodollar Loans the then current
Interest Periods with respect to all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same day).
Event of Default
: any of the events specified in Section 8.1,
provided
that
any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
Excess Cash Flow
: for any fiscal year of the Borrower (or shorter period beginning
on the first anniversary of the Closing Date through the end of such fiscal year), the excess, if
any, of (a) the sum, without duplication, of (i) Consolidated Net Income for such fiscal year (or
period), (ii) the amount of all non-cash charges (including depreciation and amortization) deducted
in arriving at such Consolidated Net Income, (iii) decreases in Consolidated Working Capital for
such fiscal year (or period), and (iv) the aggregate net amount of non-cash loss on the Disposition
of property by the Borrower and its Subsidiaries during such fiscal year (or period) (other than
sales of inventory in the ordinary course of business), to the extent deducted in arriving at such
Consolidated Net Income
over
(b) the sum, without duplication, of (i) the amount of all
non-cash credits included in arriving at such Consolidated Net Income, (ii) the aggregate amount
actually paid by the Borrower and its Subsidiaries in cash during such
9
fiscal year (or period) on account of Capital Expenditures (excluding the principal amount of
Indebtedness incurred in connection with such expenditures and any such expenditures financed with
the proceeds of any Reinvestment Deferred Amount), (iii) the aggregate amount of all (A) optional
prepayments of the First Lien Term Loans, (B) optional prepayments of any revolving loans under the
First Lien Credit Agreement with a concurrent reduction of commitments thereunder, and (C) optional
prepayments of the Loans, in each case during such fiscal year (or period), (iv) the aggregate
amount of all regularly scheduled principal payments of Indebtedness (including the Loans and the
First Lien Loans) of the Borrower and its Subsidiaries made in cash during such fiscal year (or
period) (other than in respect of any revolving credit facility to the extent there is not an
equivalent permanent reduction in commitments thereunder), (v) increases in Consolidated Working
Capital for such fiscal year (or period), (vi) the aggregate net amount of non-cash gain on the
Disposition of property by the Borrower and its Subsidiaries during such fiscal year (or period)
(other than sales of inventory in the ordinary course of business), (vii) minority interests in
income and earnings of Affiliates for which the Borrower has not received cash distributions
thereof, and (viii) all cash consideration paid with respect to Permitted Acquisitions (except to
the extent funded with the proceeds of Excluded Issuances or Indebtedness), including, without
limitation, payments in respect of earnouts and similar payment obligations and seller notes, to
the extent included in arriving at such Consolidated Net Income.
Excess Cash Flow Application Date
: as defined in Section 2.9(c).
Excluded Issuance
: any Capital Stock of the Borrower issued (a) to directors,
employees or consultants of the Borrower or its Subsidiaries pursuant to compensation plans or
arrangements approved by the Board, (b) upon the conversion or exercise of any Capital Stock of the
Borrower outstanding on the date hereof or issued hereafter as part of an Excluded Issuance, (c) to
a Group Member in accordance with Section 7.7, (d) to fund Capital Expenditures permitted under
Section 7.1(c) and (e) to fund the payment of any consideration for a Permitted Acquisition in
accordance with Section 7.7.
Excluded Property
: (i) property owned by any Excluded Subsidiary or Foreign
Subsidiary; (ii) receivables and customary related rights and assets subject to a Receivables
Financing Transaction; (iii) any property to the extent that a grant of a security interest in such
property pursuant to the Security Documents is prohibited by any Requirements of Law of a
Governmental Authority, requires a consent not obtained of any Governmental Authority pursuant to
such Requirement of Law or is prohibited by, or constitutes a breach or default under or results in
the termination of or requires any consent not obtained under, any contract, license, agreement,
instrument or other document evidencing or giving rise to such property or, in the case of any
Investment, Pledged Stock or Pledged Note (as such terms are defined in the Security Documents),
any applicable shareholder or similar agreement, except to the extent that such Requirement of Law
or the term in such contract, license, agreement, instrument or other document or shareholder or
similar agreement providing for such prohibition, breach, default or termination or requiring such
consent is ineffective under applicable law; (iv) Vehicles (as defined in the Guarantee and
Collateral Agreement) and title documents therefor; (v) any Capital Stock held by a Loan Party in
(A) a joint venture, so long as (x) not more than 50% of the aggregate Capital Stock of such joint
venture is held by the Loan Parties in the aggregate and (y) such Capital Stock is not subject to a
Lien in favor of any other Person and (B) any direct holding company of one or more joint ventures
under clause (A) of this clause (v),
provided
that such holding company does not engage in
any business or own any assets other than owning the Capital Stock of such joint ventures; (vi) any
property with respect to which the Administrative Agent determines that the cost or burden of
subjecting such property to a Lien under the Security Documents is disproportionate to the value of
the collateral security afforded thereby; (vii) real property owned by the Loan Parties having a
fair market value estimated in good faith by the Borrower of less than $5,000,000,
provided
that the aggregate fair market value of all such owned real property located in the U.S. (as
estimated in good faith by the Borrower) that is Excluded Property shall
10
not exceed $25,000,000 as of the Closing Date and $25,000,000 as of the date the financial
statements are delivered for the end of any fiscal year of the Borrower; (viii) interests in real
property leased, subleased or licensed to any of the Loan Parties; (ix) thirty-five percent (35%)
of the total outstanding voting Capital Stock of each new and existing Foreign Subsidiary; and (x)
any other property which the First Lien Credit Agreement defines as Excluded Property thereunder.
Excluded Subsidiary
: each Subsidiary of a Foreign Subsidiary and, with respect to
any requirement to enter into any Security Document, any Special Purpose Subsidiary.
Facility
: the term loan facility made available to the Borrower pursuant to this
Agreement.
Federal Funds Effective Rate
: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a Business Day, the average of
the quotations for the day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.
First Lien Agent
: JPMorgan Chase Bank, N.A., as the administrative agent for the
lenders under the First Lien Credit Agreement, together with any of its successors.
First Lien Cap Amount
: means the sum of (i) $600,000,000
less
(ii) the
amount by which the aggregate face amount of First Lien Specified Letters of Credit and, without
duplication, letters of credit which are cash collateralized as permitted by Section 7.3(t) of this
Agreement exceeds $200,000,000.
First Lien Credit Agreement
: the Credit Agreement, dated as of October 23, 2009,
among Lear Corporation, the several lenders and agent banks from time to time parties thereto and
the First Lien Agent, as amended, supplemented, restated or otherwise modified, renewed, refunded,
replaced or refinanced in whole or in part from time to time (including increasing the amount
loaned or issued thereunder,
provided
that such additional Indebtedness is permitted by
Section 7.2) and in any event shall include any agreement which qualifies as a First Priority
Agreement under the Intercreditor Agreement.
First Lien Incremental Facility
: the Incremental Facility as defined in the First
Lien Credit Agreement.
First Lien Loan Documents
: the Loan Documents as defined in the First Lien Credit
Agreement.
First Lien Loans
: the loans outstanding under the First Lien Credit Agreement
(including any loans under the First Lien Incremental Facility).
First Lien Obligations
: the First Priority Obligations as defined in the
Intercreditor Agreement.
First Lien Specified Cash Management Agreements
: the Specified Cash Management
Agreements as defined in the First Lien Credit Agreement.
First Lien Specified Letters of Credit
: the Specified Letters of Credit as
defined in the First Lien Credit Agreement.
11
First Lien Specified Swap Agreements
: the Specified Swap Agreements as defined in
the First Lien Credit Agreement.
First Lien Term Loans
: the term loans outstanding under the First Lien Credit
Agreement (including any term loans under the First Lien Incremental Facility).
First Priority Obligations Payment Date
: as defined in the Intercreditor Agreement.
Foreign Subsidiary
: any Subsidiary of the Borrower that is not a Domestic
Subsidiary.
Funded Debt
: as to any Person, all Indebtedness of such Person that matures more
than one year from the date of its creation or matures within one year from such date but is
renewable or extendible, at the option of such Person, to a date more than one year from such date
or arises under a revolving credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year from such date, including all current
maturities and current sinking fund payments in respect of such Indebtedness whether or not
required to be paid within one year from the date of its creation or maturity and, in the case of
the Borrower, Indebtedness in respect of the Loans.
Funding Office
: the office of the Administrative Agent specified in Section 10.2 or
such other office as may be specified from time to time by the Administrative Agent as its funding
office by written notice to the Borrower and the Lenders.
GAAP
: generally accepted accounting principles in the United States as in effect
from time to time, except that for purposes of Section 7.1, GAAP shall be determined on the basis
of such principles in effect on the date hereof and consistent with those used in the preparation
of the most recent audited financial statements delivered pursuant to Section 6.1(a) of the DIP
Credit Agreement.
Governmental Authority
: any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
functions of or pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
Group Members
: the collective reference to the Borrower and its Subsidiaries.
Guarantee and Collateral Agreement
: the Second Lien Guarantee and Collateral
Agreement to be executed and delivered by the Borrower and each Guarantor, substantially in the
form of Exhibit D.
Guarantee Obligation
: as to any Person (the
guaranteeing person
), any
obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing
Person that guarantees or in effect guarantees, or which is given to induce the creation of a
separate obligation by another Person (including any bank under any letter of credit) that
guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the
primary obligations
) of any other third Person (the
primary obligor
) in any
manner, whether directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of such primary
obligation or
12
(iv) otherwise to assure or hold harmless the owner of any such primary obligation against
loss in respect thereof;
provided
,
however
, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be
the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such guaranteeing
person may be liable are not stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing persons maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
Guarantor
: each Domestic Subsidiary of the Borrower other than (a) Excluded
Subsidiaries, (b) Immaterial Subsidiaries (
provided
that all Immaterial Subsidiaries
excluded under this clause (b) and Section 6.9(c)(ii)(B) shall not at any time contribute in the
aggregate more than 5% of Consolidated Assets or more than 5% of Consolidated Revenues), (c) joint
ventures in which not more than 85% of the aggregate Capital Stock of such joint venture is held by
the Loan Parties in the aggregate and (d) any direct holding company of one or more joint ventures
under clause (c) hereof,
provided
that such holding company does not engage in any business
or own any assets other than owning the Capital Stock of such joint ventures;
provided
that, prior to the First Priority Obligations Payment Date, any Subsidiary which is not a
Guarantor under the First Lien Loan Documents shall not be required to be a Guarantor hereunder.
Immaterial Subsidiary
: at any time, any Subsidiary of the Borrower which, based on
the financial statements most recently delivered pursuant to Section 6.1(a) or (b), constituted
less than 1% of Consolidated Assets or, for the twelve month period ended on the date of such
financial statements, represented less than 1% of Consolidated Revenues, in each case determined
using the equity method of accounting in accordance with GAAP;
provided
that, except for
the purposes of Section 8.3(e), prior to the First Priority Obligations Payment Date, any
Subsidiary which is an Immaterial Subsidiary under the First Lien Loan Documents shall be deemed
to be an Immaterial Subsidiary hereunder.
Indebtedness
: of any Person at any date, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services, which would, in accordance with GAAP be shown on the liability side
of the balance sheet, (c) all obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all indebtedness created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all Capital Lease Obligations of such
Person, (f) all obligations of such Person, contingent or otherwise, as an account party or
applicant under or in respect of acceptances, letters of credit, surety bonds or similar
arrangements, (g) all Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (f) above, (h) all obligations of the kind referred to in
clauses (a) through (g) above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts
and contract rights) owned by such Person, whether or not such Person has assumed or become liable
for the payment of such obligation,
provided
, if such Person has not assumed or become
liable for such obligation, the amount of such Indebtedness shall be deemed to be the lesser of the
fair market value of such property or the obligation being secured thereby and (i) for the purposes
of Section 8.1(e) only, all obligations of such Person in respect of Swap Agreements, but excluding
(i) trade and other accounts payables incurred in the ordinary course of such Persons business,
(ii) accrued expenses and deferred compensation arrangements in the ordinary course, and (iii)
advance payments in the ordinary course. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
13
is a general partner) to the extent such Person is liable therefor as a result of such
Persons ownership interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness expressly provide that such Person is not liable therefor.
Insolvency
: with respect to any Multiemployer Plan, the condition that such Plan is
insolvent within the meaning of Section 4245 of ERISA.
Insolvent
: pertaining to a condition of Insolvency.
Intellectual Property
: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including copyrights, copyright licenses, inventions, designs, patents,
patent licenses, trademarks, tradenames, domain names and other source indicators, trademark
licenses, technology, trade secrets, know-how and processes, and all rights to sue at law or in
equity for any infringement or other impairment thereof, including the right to receive all
proceeds and damages therefrom.
Intercompany Subordinated Note
: a promissory note, substantially in the form of
Exhibit A or otherwise in form and substance reasonably acceptable, prior to the First Priority
Obligations Payment Date, to the First Lien Agent and thereafter, to the Administrative Agent.
Intercreditor Agreement
: the Intercreditor Agreement to be executed and delivered
by the Administrative Agent, the Collateral Agent, the agent or trustee for the First Lien Loans
and the Loan Parties, substantially in the form of Exhibit E, as amended, modified and supplemented
from time to time.
Interest Coverage Ratio
: for any period, the ratio of (a) Consolidated EBITDA for
such period to (b) Consolidated Interest Expense for such period.
Interest Election
: a Cash Election or PIK Election, as applicable.
Interest Payment Date
: (a) as to any Eurodollar Loan, the last day of each Interest
Period applicable to such Loan and the Maturity Date;
provided
that if any Interest Period
for a Eurodollar Loan exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates; (b) as to any ABR Loan,
the last day of each calendar quarter and the Maturity Date, (c) as to any Loan, the date of any
repayment or prepayment made in respect thereof, and (d) as to any ABR Loan if an Event of Default
is in existence, the last day of each calendar month.
Interest Period
: as to any Eurodollar Loan, (a) initially, the period commencing on
the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with respect thereto; and (b)
thereafter, each period commencing on the last day of the next preceding Interest Period applicable
to such Eurodollar Loan and ending one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not later than 11:00 A.M., New York City
time, on the date that is three Business Days prior to the last day of the then current Interest
Period with respect thereto;
provided
that, all of the foregoing provisions relating to
Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding Business Day;
14
(ii) the Borrower may not select an Interest Period that would extend beyond the
Maturity Date; and
(iii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of a calendar month.
Investments
: an advance, loan, extension of credit (by way of guaranty or
otherwise, but excluding trade debt incurred in the ordinary course of business) or capital
contribution to, or purchase any Capital Stock, bonds, notes, loans, debentures or other debt
securities of, or any assets constituting a business unit of, or any other similar investment in,
any Person. The amount of any Investment by any Person on any date of determination shall be the
acquisition price of the gross assets acquired (including any liability assumed by such Person to
the extent such liability would be reflected on a balance sheet prepared in accordance with GAAP)
plus
all additional capital contributions or purchase price paid in respect thereof,
without any adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment
minus
the amount of all cash returns of
principal or capital thereon, cash dividends thereon and other cash returns on investment thereon
or liabilities expressly assumed by another Person (other than a Group Member) in connection with
the sale of such Investment. Whenever the term outstanding is used in this Agreement with
reference to an Investment, it shall take into account the matters referred to in the preceding
sentence.
LC Basket Limit
: $225,000,000 less the aggregate amount of any First Lien
Incremental Facility added to the First Lien Credit Agreement that is a revolving facility to the
extent such revolving facility may be used for letters of credit.
Lenders
: as defined in the preamble;
provided
, that unless the context
otherwise requires, each reference herein to the Lenders shall be deemed to include any Conduit
Lender.
Lien
: any mortgage, pledge, hypothecation, deposit arrangement, encumbrance, lien
(statutory or other), charge or other security interest or any priority or other security agreement
of any kind or nature whatsoever (including any conditional sale or other title retention agreement
and any capital lease having substantially the same economic effect as any of the foregoing).
Liquidity
: on any date of determination, the sum, without duplication, of (i) the
cash and Cash Equivalents which are not subject to any Liens (other than (a) Liens in favor of the
First Lien Agent on behalf of the lenders under the First Lien Credit Agreement, (b) Liens in favor
of the Collateral Agent on behalf of the Secured Parties, (c) Liens permitted by Section 7.3(c)(ii)
and (d) inchoate Liens arising by operation of law which are not the subject of enforcement
actions) held by the Borrower and its Subsidiaries on such date and (ii) the aggregate availability
under any loan agreements or other lines of credit of the Borrower and its Subsidiaries which are
committed for longer than one year from the date of determination.
Liquidity Event
: Liquidity of the Borrower and its Subsidiaries as of the last day
of the most recent fiscal month shall be less than $650,000,000;
provided
that, if a
Liquidity Event shall occur, it shall be deemed to continue until the next delivery of financial
statements pursuant to Section 6.1 of this Agreement demonstrating Liquidity of at least
$650,000,000.
Loan
: as defined in Section 2.1 and shall include any interest which is paid-in-kind
and added to the principal amount of the Loans in accordance with Section 2.12(c).
15
Loan Amount
: as to any Lender, the principal amount of Loans issued to such Lender
on the Closing Date set forth under the heading Loan Amount opposite such Lenders name on
Schedule 1.1A. The original aggregate amount of the Loan Amount is $550,000,000.
Loan Documents
: this Agreement, the Security Documents, the Intercreditor
Agreement, the Notes and any amendment, waiver, supplement or other modification to any of the
foregoing.
Loan Parties
: the Borrower and the Guarantors.
Material Adverse Effect
: a material adverse effect on (a) the business, property,
operations or financial condition of the Borrower and its Subsidiaries, taken as a whole or (b) the
validity or enforceability of this Agreement or any of the other Loan Documents or the rights or
remedies of the Administrative Agent, the Collateral Agent or the Lenders hereunder or thereunder.
Materials of Environmental Concern
: any gasoline or petroleum (including crude oil
or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or
wastes, defined or regulated as such in or under any Environmental Law, including asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
Maturity Date
: the third anniversary of the Closing Date.
Moodys
: Moodys Investors Service, Inc.
Mortgaged Property
: as defined in Section 4.20(b).
Mortgages
: collectively, any deeds of trust, trust deeds, hypothecs and mortgages
creating and evidencing a Lien on any real property made by the Loan Parties in favor of or for the
benefit of the Collateral Agent on behalf of the Secured Parties in form and substance reasonably
satisfactory to the Administrative Agent, in each case securing the Obligations.
Multiemployer Plan
: a Plan that is a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
Net Cash Proceeds
: (a) in connection with any Asset Sale or any Recovery Event, the
proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by
way of deferred payment of principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received), net of (i) attorneys fees,
accountants fees, investment banking fees, amounts required to be applied to the repayment of
Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of
such Asset Sale or Recovery Event (other than any Lien created pursuant to a Security Document) and
other third-party fees and expenses actually incurred in connection therewith and (ii) Taxes and
Other Taxes paid or reasonably estimated to be payable as a result of any Asset Sale or Recovery
Event (after taking into account any available tax credits or deductions and any tax sharing
arrangements), (b) in connection with any issuance or sale of Capital Stock or any incurrence of
Indebtedness, the cash proceeds received from such issuance or incurrence, net of attorneys fees,
investment banking fees, accountants fees, underwriting discounts and commissions and other
customary fees and expenses actually incurred in connection therewith, and (c) in connection with
any Receivable Financing Transaction, the initial cash purchase price received by, or Indebtedness
incurred by, any Loan Party thereunder (and any increase in the aggregate funded amount thereof)
net of attorneys fees, investment banking fees, accountants fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in connection therewith.
16
Non-Excluded Taxes
: as defined in Section 2.17(a).
Non-U.S. Lender
: as defined in Section 2.17(d).
Notes
: the collective reference to any promissory note evidencing Loans.
Obligations
: the unpaid principal of and interest on (including interest accruing
after the maturity of the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like proceeding relating to a
Loan Party, whether or not a claim for post-filing or post-petition interest is allowed in such
proceeding) the Loans and all other obligations and liabilities of the Borrower and each Guarantor
(or, in the case of Specified Letters of Credit, each Group Member on whose account such Specified
Letter of Credit is issued and guarantee obligations of other Group Members in respect thereof) to
the Administrative Agent or to any Lender (or, in the case of Specified Letters of Credit,
Specified Swap Agreements and Specified Cash Management Agreements, to the applicable provider
thereof), whether direct or indirect, absolute or contingent, due or to become due, or now existing
or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any
other Loan Document, any Specified Letter of Credit (and related letter of credit applications),
any Specified Swap Agreement, any Specified Cash Management Agreement or any other document made,
delivered or given in connection herewith or therewith, whether on account of principal, interest,
reimbursement obligations, Guarantee Obligations, fees, indemnities, costs, expenses (including all
reasonable fees, charges and disbursements of counsel to the Administrative Agent or to any Lender
that are required to be paid by the Borrower pursuant hereto) or otherwise.
Other Taxes
: any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or from
the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document, including any interest, additions to tax or penalties applicable thereto,
whether disputed or not.
Outstanding Amount
: with respect to the Loans at any time, the aggregate principal
amount thereof, after giving effect to any borrowings and prepayments or repayments of Loans
occurring on such date.
Outstanding Percentage
: as to any Lender at any time the percentage which is the
aggregate principal amount of such Lenders Loans then outstanding constitutes of the aggregate
principal amount of the Loans then outstanding.
Participant
: as defined in Section 10.6(c).
Participation Register
: as defined in Section 10.6(c).
PBGC
: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
of Title IV of ERISA (or any successor).
Permitted Acquisition
: any Acquisition by (i) the Borrower or any of its
Subsidiaries of all or substantially all of the assets of a Person, or of all or substantially all
of any business or division of a Person or (ii) the Borrower or any of its Subsidiaries of no less
than 100% of the capital stock, partnership interests, membership interests or equity of any
Person, in each case to the extent that:
(a) each of the conditions precedent set forth in
Annex III
shall have been
satisfied in a manner reasonably satisfactory to the Administrative Agent;
17
(b) such Acquisition shall not be hostile and shall have been approved by the board of
directors (or other similar body) and/or the stockholders or other equityholders of the
Target; and
(c) no Default or Event of Default is in existence or would occur after giving effect
to such Acquisition.
Permitted Refinancing Indebtedness
: as defined in Section 7.2(s).
Person
: an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
Petition Date
: as defined in the recitals hereto.
PIK Election
: as defined in Section 2.12(c).
Plan
: at a particular time, any employee pension benefit plan (as defined in
Section 3(2) of ERISA) in respect of which a Loan Party or any ERISA Affiliate is (or, if such plan
were terminated at such time, would under Section 4069 of ERISA be deemed to be) an employer as
defined in Section 3(5) of ERISA.
Plan of Reorganization
as defined in the recitals hereto.
Prepetition Credit Agreement Secured Claims
: as defined in the Plan of
Reorganization.
Prime Rate
: the rate of interest per annum publicly announced from time to time by
JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City (the
Prime Rate not being intended to be the lowest rate of interest charged by JPMorgan Chase Bank,
N.A. in connection with extensions of credit to debtors).
Prohibited Transaction
: as defined in Section 406 of ERISA or Section 4975 of the
Code.
Pro Forma Balance Sheet
: as defined in Section 4.18.
Projections
: as defined in Section 6.2(c).
Properties
: as defined in Section 4.16(a).
Receivable Financing Transaction
: any transaction or series of transactions
involving a sale for cash of accounts receivable, without recourse based upon the collectibility of
the receivables sold, by the Borrower or any of its Subsidiaries to a Special Purpose Subsidiary
and a subsequent sale or pledge of such accounts receivable (or an interest therein) by such
Special Purpose Subsidiary, in each case without any guarantee by the Borrower or any of its
Subsidiaries (other than the Special Purpose Subsidiary).
Recovery Event
: any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of any Group Member in an
amount in excess of $2,500,000.
18
Refinanced Term Loans
: as defined in Section 10.1(d).
Register
: as defined in Section 10.6(b).
Regulation U
: Regulation U of the Board as in effect from time to time.
Reinvestment Deferred Amount
: with respect to any Reinvestment Event, the aggregate
Net Cash Proceeds received by any Group Member in connection therewith that are not applied to
prepay the Loans pursuant to Section 2.9(b) as a result of the delivery of a Reinvestment Notice.
Reinvestment Event
: any Asset Sale or Recovery Event in respect of which the
Borrower has delivered a Reinvestment Notice.
Reinvestment Notice
: a written notice executed by a Responsible Officer stating
that no Event of Default has occurred and is continuing and that the Borrower (directly or
indirectly through a Subsidiary) intends and expects to use all or a specified portion of the Net
Cash Proceeds of an Asset Sale or a Recovery Event in the business.
Reinvestment Prepayment Amount
: with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant
Reinvestment Prepayment Date to acquire or repair assets useful in the businesses of the Borrower
and its Subsidiaries.
Reinvestment Prepayment Date
: with respect to any Reinvestment Event, the earlier
of (a) the date occurring 360 days after such Reinvestment Event (provided that if on such
360
th
day, the applicable Reinvestment Prepayment Amount is contractually committed to
acquire or repair assets useful in the businesses of the Borrower and its Subsidiaries, the
Reinvestment Prepayment Date with respect to such amount shall be the earlier of (i) the date
occurring 450 days after such Reinvestment Event, (ii) the date of termination of such commitment,
and (iii) if such amount is not so expended, the first Business Day following the date such amount
was contractually committed to be expended) and (b) the date on which the Borrower shall have
determined not to, or shall have otherwise ceased to, acquire or repair assets useful in the
businesses of the Borrower and its Subsidiaries with all or any portion of the relevant
Reinvestment Deferred Amount.
Related Parties
: as defined in Section 9.3.
Replacement Term Loans
: as defined in Section 10.1(d).
Reorganization
: with respect to any Multiemployer Plan, the condition that such
plan is in reorganization within the meaning of Section 4241 of ERISA.
Reorganized Lear Corporation
: Lear Corporation, as reorganized pursuant to and
under the Plan of Reorganization.
Reportable Event
: any of the events set forth in Section 4043(c) of ERISA or the
regulations thereunder, other than those events as to which the thirty day notice period is waived
under PBGC regulations.
Required Lenders
: at any time, Lenders holding more than 50% of the Outstanding
Amount;
provided
that the portion of the Outstanding Amount held or deemed held by any
Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
19
Requirement of Law
: as to any Person, the Certificate of Incorporation and By-Laws
or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
Responsible Officer
: with respect to any Loan Party, the chief executive officer,
the president, the chief financial officer, any vice president, the treasurer or the assistant
treasurer of such Loan Party.
Restricted Payments
: as defined in Section 7.6.
S&P
: Standard & Poors Ratings Services.
SEC
: the Securities and Exchange Commission, any successor thereto and any
analogous Governmental Authority.
Secured Parties
: collectively, the Administrative Agent, the Lenders, each provider
under a Specified Cash Management Agreement, each issuer of a Specified Letter of Credit, each
counterparty to a Specified Swap Agreement, the Persons entitled to indemnification under the Loan
Documents and each co-agent or sub-agent appointed by the Administrative Agent from time to time
pursuant to Section 9.2.
Security Documents
: the collective reference to the Guarantee and Collateral
Agreement, the Mortgages and all other security documents hereafter delivered to the Administrative
Agent and the Collateral Agent granting a Lien on any property of any Person to secure the
obligations and liabilities of any Loan Party under any Loan Document.
Seller Debt
: unsecured debt owing to the seller in a Permitted Acquisition.
Series A Preferred Stock
: as defined in the Plan of Reorganization.
Single Employer Plan
: any Plan that is covered by Title IV of ERISA, but that is
not a Multiemployer Plan.
Solvent
: when used with respect to any Person, means that, as of any date of
determination, (a) the amount of the present fair saleable value of the assets of such Person
will, as of such date, exceed the amount of all liabilities of such Person, contingent or
otherwise, as of such date, as such quoted terms are determined in accordance with applicable
federal and state laws governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater than the amount that
will be required to pay the liability of such Person on its debts as such debts become absolute and
matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital
with which to conduct its business, and (d) such Person will be able to pay its debts as they
mature. For purposes of this definition, (i) debt means liability on a claim, and (ii) claim
means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach
gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.
Special Purpose Subsidiary
: any Wholly Owned Subsidiary of the Borrower created by
the Borrower for the sole purpose of facilitating a Receivable Financing Transaction;
provided
, that such
20
Special Purpose Subsidiary shall cease to be a Special Purpose Subsidiary if at any time (a)
such Special Purpose Subsidiary engages in any business other than Receivable Financing
Transactions and activities directly related thereto or (b) the Borrower or any of its Subsidiaries
(other than a Special Purpose Subsidiary) or any of their respective assets incur any liability,
direct or indirect, contingent or otherwise, in respect of any obligation of a Special Purpose
Subsidiary whether arising under or in connection with any Receivable Financing Transaction or
otherwise (other than Standard Securitization Undertakings);
provided
further
,
however, that if the law of a jurisdiction in which the Borrower proposes to create a Special
Purpose Subsidiary does not provide for the creation of a bankruptcy remote entity that is
acceptable to the Borrower or requires the formation of one or more additional entities (whether or
not Subsidiaries of the Borrower), such other type of entity may, upon the request of the Borrower
and with the consent of the Administrative Agent (such consent not to be unreasonably withheld)
serve as a Special Purpose Subsidiary.
Specified Cash Management Agreement
: any agreement providing for treasury,
depositary or cash management services, including in connection with any automated clearing house
transactions, controlled disbursements, return items, overdrafts, interstate depository network
services or any similar transactions between the Borrower or any Guarantor (or guaranteed by the
Borrower or any Guarantor) and any Lender under the First Lien Credit Agreement (or any affiliate
thereof) or any Lender hereunder at the time such obligations were created;
provided
that,
prior to the First Priority Obligations Payment Date, any agreement that is a Specified Cash
Management Agreement under the First Lien Credit Agreement shall not be a Specified Cash
Management Agreement hereunder.
Specified Jurisdiction
: any country, state or other jurisdictional subdivision
outside North America or Europe.
Specified Letters of Credit
: any letter of credit (a) issued for the account of any
Group Member by any Lender under the First Lien Credit Agreement or Lender hereunder at the time
such agreement is entered into or any affiliate thereof at the time such letter of credit is issued
and (b) that has been designated by the relevant Lender and such Group Member, by written notice to
the Administrative Agent prior to the issuance thereof (or, in the case of a First Lien Specified
Letter of Credit that shall be continued as Specified Letter of Credit, on or prior to the First
Priority Obligations Payment Date), as a Specified Letter of Credit and with respect to which the
Administrative Agent has confirmed to the relevant issuer sufficient availability pursuant to
Section 7.2(i). Such designation shall not create in favor of such issuer or affiliate thereof any
rights in connection with the management or release of any Collateral or of the obligations of any
Loan Party hereunder or under any Collateral Document. Notwithstanding the foregoing, prior to the
First Priority Obligations Payment Date, any letter of credit that is a Specified Letter of
Credit under the First Lien Credit Agreement shall not be a Specified Letter of Credit hereunder.
Specified Swap Agreement
: any Swap Agreement (a) entered into by the Borrower or
any Guarantor and (i) any Person that is a Lender under the First Lien Credit Agreement or an
affiliate of a Lender under the First Lien Credit Agreement or (ii) any Person that is a Lender
hereunder or an affiliate of a Lender hereunder, in each case at the time such Swap Agreement is
entered into and (b) that has been designated by the relevant counterparty and such Group Member,
by written notice to the Administrative Agent prior to the effectiveness thereof (or, in the case
of a First Lien Specified Swap Agreement that shall be continued as Specified Swap Agreement, on or
prior to the First Priority Obligations Payment Date), as a Specified Swap Agreement. Such
designation shall not create in favor of such counterparty or affiliate thereof any rights in
connection with the management or release of any Collateral or of the obligations of any Loan Party
hereunder or under any Collateral Document. Notwithstanding the foregoing, prior to the First
Priority Obligations Payment Date, any Swap Agreement that is a Specified Swap Agreement under
the First Lien Credit Agreement shall not be a Specified
21
Swap Agreement hereunder. For purposes hereof a Specified Swap Agreement shall include any
trade executed pursuant to a master agreement which is a Specified Swap Agreement.
Standard Securitization Undertakings
: representations, warranties, covenants and
indemnities entered into by the Borrower or any Subsidiary thereof in connection with a Receivable
Financing Transaction which are reasonably customary in an accounts receivable financing
transaction.
Subsidiary
: as to any Person, a corporation, partnership, limited liability company
or other entity of which shares of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such
Person (exclusive of any Affiliate in which such Person has a minority ownership interest). Unless
otherwise qualified, all references to a Subsidiary or to Subsidiaries in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower.
Swap Agreement
: any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions.
Target
: the Person, or business or substantially all of the assets of a Person or a
division of a Person intended to be acquired in a Permitted Acquisition.
Taxes
: all present or future taxes, duties, levies, imposts, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto, whether disputed or not.
3% Subsidiary
: at any time, any Subsidiary of the Borrower which, based on the
financial statements most recently delivered pursuant to subsection 6.1(a) or (b), constituted at
least 3% of Consolidated Assets or for the twelve month period ended on the date of such financial
statements represented at least 3% of Consolidated Revenues, in each case determined using the
equity method of accounting in accordance with GAAP.
Title Insurance Company
: as defined in Section 5(t)(ii).
Transferee
: any Assignee or Participant.
Type
: as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.
UCC
: the Uniform Commercial Code, as in effect from time to time in the State of
New York or any other applicable jurisdiction.
United States
: the United States of America.
Wholly Owned Subsidiary
: as to any Person, any other Person all of the Capital
Stock of which (other than directors qualifying shares required by law) is owned by such Person
directly and/or through other Wholly Owned Subsidiaries.
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Withdrawal Liability
: liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Title IV of ERISA.
1.2.
Other Definitional Provisions
. (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in the other Loan Documents or any certificate or other document made or
delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any certificate or other document made
or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not
defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP, as in effect from time to
time; provided that, if the Borrower notifies the Administrative Agent that the Borrower requests
an amendment to any provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall be interpreted on the
basis of GAAP as in effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn by the Borrower or the Administrative Agent, as the
case may be, or such provision amended in accordance herewith, (ii) the words include, includes
and including shall be deemed to be followed by the phrase without limitation, (iii) the word
incur shall be construed to mean incur, create, issue, assume or become liable in respect of or
suffer to exist (and the words incurred and incurrence shall have correlative meanings), (iv)
the words asset and property shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including cash, Capital Stock,
securities, revenues, accounts, leasehold interests and contract rights, and (v) references to
agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer
to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise
modified from time to time.
(c) The words hereof, herein and hereunder and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
(e) When determining whether a Default or Event of Default pursuant to Section 7.1 shall be in
existence after giving pro forma effect to a certain event, the covenant levels to be used in
making such determination shall be those in effect as of the last day of the most recent fiscal
quarter of the Borrower for which financial reports are required to have been delivered pursuant to
Section 6.1.
SECTION 2. AMOUNT AND TERMS OF LOANS
2.1.
Loans
. Subject to the terms and conditions set forth herein and to give effect to the Plan of
Reorganization and provide for the repayment, in part, of the Prepetition Credit Agreement Secured
Claims, each Lender listed on Schedule 1.1A hereto shall be deemed to have made term loans (the
Loans
) to the Borrower on the Closing Date in the full amount of such Lenders Loan
Amount. The Loans deemed made on the Closing Date shall be made without any actual funding and
shall initially be
23
Eurodollar Loans with a ___ month1 interest period. The Loans may from time to
time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Section 2.10.
2.2.
[Reserved]
.
2.3.
[Reserved]
.
2.4.
Maturity and Repayment of Loans
. The Loan of each Lender shall mature in a single installment on the Maturity Date.
2.5.
[Reserved]
.
2.6.
Prepayment Premium; Fees.
(a) The Borrower agrees to pay to the Administrative Agent, for the account of each Lender, a
call premium (the
Call Premium
) equal to 2% of the principal amount of such Lenders
Loans repaid on or after the second anniversary of the Closing Date, such Call Premium to be
payable on the date of such repayment;
provided
,
however
,
that if the outstanding
principal balance of the Lenders Loans are not repaid in full on or prior to the Maturity Date,
the Call Premium on such outstanding principal balance shall be payable on the Maturity Date rather
than on the date of such repayment.
(b) The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the
dates as set forth in any fee agreements with the Administrative Agent and to perform any other
obligations contained therein.
2.7.
[Reserved]
.
2.8.
Optional Prepayments
. The Borrower may at any time and from time to time prepay the Loans, in whole or in
part, without premium or penalty, upon irrevocable notice delivered to the Administrative Agent no
later than 1:00 P.M., New York City time, three Business Days prior thereto, in the case of
Eurodollar Loans, and one Business Day prior thereto, in the case of ABR Loans (provided that ABR
Loans may be prepaid on the same Business Day if notice is received by the Administrative Agent no
later than 12:00 P.M., New York City time), which notice shall specify the date and amount of
prepayment and Type of the Loans being prepaid, as applicable;
provided
, that if a
Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable
thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.18. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice
is given, the amount specified in such notice shall be due and payable on the date specified
therein, together with accrued interest to such date on the amount prepaid. Partial prepayments of
Loans shall be in an aggregate principal amount of $1,000,000 or a whole multiple of $1,000,000 in
excess thereof. Partial optional prepayments of the Loans shall be ratable as among the Lenders
thereof.
2.9.
Mandatory Prepayments
. (a) If any Capital Stock or Indebtedness shall be issued or incurred by any Group Member
(excluding any Excluded Issuance and any Indebtedness permitted by Section 7.2(a) through (s)) an
amount equal to the Equity Sweep Percentage of such Net Cash Proceeds in the case of Capital Stock
and 100% of the Net Cash Proceeds in the case of Indebtedness shall be applied by the Borrower on
the date of receipt thereof by such Group Member toward the prepayment of the Loans as set forth in
Section 2.9(e).
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Please indicate the length of the initial LIBOR period Lear is requesting.
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(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or
Recovery Event then, unless a Reinvestment Notice shall have been timely delivered in respect
thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied by or on behalf of the
Borrower promptly but no later than the end of the fiscal month following the fiscal month in which
such Net Cash Proceeds are received) toward the prepayment of the Loans as set forth in Section
2.9(e);
provided
that notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of
Asset Sales that may be excluded from the foregoing prepayment requirement pursuant to Reinvestment
Notices shall not exceed $150,000,000 in any fiscal year of the Borrower and (ii) on each
Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to
the relevant Reinvestment Event shall be applied toward the prepayment of the Loans as set forth in
Section 2.9(e).
(c) If, for (i) the period from the first anniversary of the Closing Date through the end of
the then current fiscal year of the Borrower or (ii) any fiscal year of the Borrower thereafter,
there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application
Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Loans as set
forth in Section 2.9(e). Each such prepayment shall be made on a date (an
Excess Cash Flow
Application Date
) no later than five Business Days after the earlier of (i) the date on which
the financial statements of the Borrower referred to in Section 6.1(a), for the fiscal year with
respect to which such prepayment is made, are required to be delivered to the Lenders and (ii) the
date such financial statements are actually delivered.
(d) Following the establishment of any Receivable Financing Transaction by the Borrower or any
of its Domestic Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be
promptly applied by or on behalf of the Borrower toward the prepayment of the Loans as set forth in
Section 2.9(e).
(e) Amounts to be applied in connection with prepayments made pursuant to this Section 2.9
shall be made ratably among the Lenders of the Loans. The application of any prepayment made
pursuant to this Section 2.9 shall be made,
first
, to ABR Loans and,
second
, to
Eurodollar Loans. Each prepayment of the Loans under Section 2.9 shall be accompanied by accrued
interest to the date of such prepayment on the amount prepaid, the Call Premium owing pursuant to
Section 2.6(a) (if applicable) and, if a Eurodollar Loan is prepaid on any day other the last day
of the Interest Period applicable thereto, the Borrower shall also pay amounts owing pursuant to
Section 2.18.
(f) Notwithstanding anything to the contrary in this Agreement, Section 2.9 shall not apply,
and no mandatory repayment of Loans shall be required to be made pursuant hereto, until after the
First Lien Loans (and accrued interest thereon) have been repaid in full and any letters of credit
outstanding under the First Lien Credit Agreement and any outstanding First Lien Specified
Letters of Credit have been cash collateralized, in each case to the extent required under the
First Lien Credit Agreement and the documentation for the First Lien Specified Letters of Credit.
2.10.
Conversion and Continuation Options
. (a) The Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans by
giving the Administrative Agent prior irrevocable notice of such election no later than 11:00 A.M.,
New York City time, on the Business Day preceding the proposed conversion date. The Borrower may
elect from time to time to convert ABR Loans to Eurodollar Loans by giving the Administrative Agent
prior irrevocable notice of such election no later than 11:00 A.M., New York City time, on the
third Business Day preceding the proposed conversion date (which notice shall specify the length of
the initial Interest Period therefor), provided that no ABR Loan may be converted into a Eurodollar
Loan when any Event of Default has occurred and is continuing and the Administrative Agent has or
the Required Lenders have determined in its or their sole discretion not to permit such
conversions. Upon receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.
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(b) Any Eurodollar Loan may be continued as such upon the expiration of the then current
Interest Period with respect thereto by the Borrower giving irrevocable notice to the
Administrative Agent, in accordance with the applicable provisions of the term Interest Period
set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans,
provided
that no Eurodollar Loan may be continued as such when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Required Lenders have determined
in its or their sole discretion not to permit such continuations, and
provided
,
further
, that if the Borrower shall fail to give any required notice as described above in
this paragraph or if such continuation is not permitted pursuant to the preceding proviso such
Loans shall be automatically converted to ABR on the last day of such then expiring Interest
Period. Upon receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.
2.11.
Limitations on Eurodollar Tranches
. Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions and
continuations of Eurodollar Loans and all selections of Interest Periods shall be in such amounts
and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate
principal amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to
$1,000,000 or a whole multiple of $500,000 in excess thereof and (b) no more than ten Eurodollar
Tranches shall be outstanding at any one time.
2.12.
Interest Rates and Payment Dates
. (a) Subject to the provisions of Section 2.12(c) and (d), each Eurodollar Loan shall bear
interest for each day during each Interest Period with respect thereto at a rate per annum equal to
the Eurodollar Rate determined for such day plus the Applicable Margin.
(b) Subject to the provisions of Section 2.12(c) and (d), each ABR Loan shall bear interest at
a rate per annum equal to the ABR plus the Applicable Margin.
(c) Notwithstanding anything to the contrary contained in this Section 2.12, upon the
occurrence and during the continuance of a Liquidity Event, interest on the Loans for the
succeeding Interest Period shall be paid, at the Borrowers option, in cash (a
Cash
Election
) or by increasing the principal amount of the outstanding Loans (a
PIK
Election
), in each case quarterly in arrears. The
Borrower shall make an Interest Election with respect to each Interest Period by providing
prior irrevocable notice of such election (the
Interest Election Notice
) no later than
11:00 A.M., New York City time, on the third Business Day preceding the beginning of such Interest
Period. Each Interest Election Notice shall include information to the following effect: (1) the
relevant Interest Payment Date, (2) whether the Borrower is electing a Cash Election or a PIK
Election and (3) if the Borrower elects a PIK Election, the increase in the principal amount of the
Loans to be effective upon the relevant Interest Payment Date as a result of such payment and the
principal amount of the Loans outstanding as of such Interest Payment Date after giving effect to
such payment. If the Borrower shall fail to give timely notice as described above in this
paragraph, the Borrower shall be deemed to have elected to continue with the last Interest Election
made for the previous period (and in the case of the first Interest Election upon the occurrence of
a Liquidity Event, the Borrower shall be deemed to have made a Cash Election).
(d) If any Event of Default shall have occurred and be continuing, on and after the date the
Borrower receives notice from the Administrative Agent stating that interest is to accrue pursuant
to this paragraph (d) or following acceleration of payment of the Loans, all outstanding Loans and
other Obligations under the Loan Documents (whether or not overdue at such time) shall bear
interest at a rate per annum equal to (i) in the case of the Loans, the rate that would otherwise
be applicable thereto pursuant to the foregoing provisions of this Section
plus
2% or and
(ii) in the case of any other Obligation, the rate then applicable to ABR Loans
plus
2%, in
each case, with respect to clauses (i) and (ii) above, from the date of such non-payment until such
amount is paid in full (after as well as before judgment).
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(e) Interest shall be payable in arrears on each Interest Payment Date,
provided
that
interest accruing pursuant to paragraph (d) of this Section shall be payable from time to time on
demand.
2.13.
Computation of Interest and Fees
. (a) Interest and fees payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to ABR Loans the rate of
interest on which is calculated on the basis of the Prime Rate, the interest thereon shall be
calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of
the effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be presumptively correct and binding on the Borrower and the
Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the
Borrower, deliver to the Borrower a statement showing the quotations used by the Administrative
Agent in determining any interest rate pursuant to Section 2.12(a).
2.14.
Inability to Determine Interest Rate
. If prior to the first day of any Interest Period:
(a) the Administrative Agent shall have determined (which determination shall
be presumptively correct and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from the Required
Lenders that the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their affected
Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the
relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar
Loans requested to be made on the first day of such Interest Period shall be made as ABR Loans,
(y) any Loans that were to have been converted on the first day of such Interest Period to
Eurodollar Loans shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans shall be
converted, on the last day of the then-current Interest Period, to ABR Loans. Until such notice
has been withdrawn by the Administrative Agent (which the Administrative Agent shall do promptly
after the circumstances giving rise to such event no longer exist), no further Eurodollar Loans
shall be made or continued as such, nor shall the Borrower have the right to convert Loans to
Eurodollar Loans.
2.15.
Pro Rata Treatment and Payments
. (a) Except as otherwise provided herein, each payment by the Borrower on account of any
fee payable to Lenders shall be made pro rata according to the respective Outstanding Percentages
of the relevant Lenders entitled thereto.
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(b) Except as otherwise provided herein, each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Loans and each payment of the Call Premium
(if applicable) shall be made
pro
rata
according to the respective Outstanding
Percentages of the relevant Lenders entitled thereto. Amounts prepaid on account of the Loans may
not be reborrowed.
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and
shall be made prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such payments to each
relevant Lender promptly upon receipt in like funds as received. If any payment hereunder (other
than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar
Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day. In the case of any extension of any payment of principal
pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable
rate during such extension.
(d) [Reserved]
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior
to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make
such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required to, in reliance
upon such assumption, make available to the Lenders their respective
pro
rata
shares of a corresponding amount. If such payment is not made to the Administrative Agent by the
Borrower within three Business Days after such due date, the Administrative Agent shall be entitled
to recover, on demand, from each Lender to which any amount which was made available pursuant to
the preceding
sentence, such amount with interest thereon at the rate per annum equal to the daily average
Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the
Administrative Agent or any Lender against the Borrower.
(f) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.15(e) or 9.7, then the Administrative Agent may, in its discretion (notwithstanding any contrary
provision of this Agreement), apply any amounts thereafter received by the Administrative Agent for
the account of such Lender to satisfy such Lenders obligations under such Sections until all such
unsatisfied obligations are fully paid.
2.16.
Requirements of Law
. (a) If the adoption of or any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental Authority, in each case, made
subsequent to the date hereof:
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(i)
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shall subject any Lender to any tax of any kind whatsoever with respect to
this Agreement or any Eurodollar Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded Taxes covered by
Section 2.17 and changes in the rate of tax on the overall net income of such Lender);
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(ii)
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shall impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, deposits or other
liabilities in or for the
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account of, advances, loans or other extensions of credit
by, or any other acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurodollar Rate; or
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(iii)
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shall impose on such Lender any other condition;
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and the result of any of the foregoing is to increase the cost to such Lender, by an amount that
such Lender reasonably deems to be material, of making, converting into, continuing or maintaining
Eurodollar Loans, or to reduce any amount receivable hereunder in respect thereof, then, in any
such case, the Borrower shall promptly pay such Lender, within 30 days after receipt of a
reasonably detailed invoice therefor, any additional amounts necessary to compensate such Lender
for such increased cost or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy
to the Administrative Agent) of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any change in any Requirement
of Law regarding capital adequacy or in the interpretation or application thereof or compliance by
such Lender or any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental Authority, in each
case, made subsequent to the date hereof shall have the effect of reducing the rate of return on
such Lenders or such corporations capital as a consequence of its obligations hereunder to a
level below that which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lenders or such corporations policies with
respect to capital adequacy) by an amount reasonably deemed by such Lender to be material, then
from time to time, after submission by such Lender to the Borrower (with a copy to the
Administrative Agent) of a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such corporation for such reduction.
(c) A certificate as to any additional amounts payable pursuant to this Section submitted by
any Lender to the Borrower (with a copy to the Administrative Agent) shall be presumptively correct
in the absence of manifest error. Notwithstanding anything to the contrary in this Section, the
Borrower shall not be required to compensate a Lender pursuant to this Section for any amounts
incurred more than nine months prior to the date that such Lender notifies the Borrower of such
Lenders intention to claim compensation therefor;
provided
that, if the circumstances
giving rise to such claim have a retroactive effect, then such nine-month period shall be extended
to include the period of such retroactive effect. The obligations of the Borrower pursuant to this
Section shall survive the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
2.17.
Taxes
. (a) All payments made by or on account of any Loan Party under this Agreement or any other
Loan Document shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges,
fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority (including any interest, addition to tax or penalties applicable
thereto), excluding income taxes and franchise taxes (imposed in lieu of net income taxes) and
taxes imposed on or measured by the Administrative Agents or any Lenders net profits if such tax
is imposed as a result of a present or former connection between the Administrative Agent or such
Lender and the jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such connection arising solely
from the Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any other Loan Document).
If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings
(Non-Excluded Taxes) or any Other Taxes are
29
required to be withheld from any amounts payable to
the Administrative Agent or any Lender hereunder or under any other Loan Document, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the extent necessary to
yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes and Other
Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement; provided, however, that the Borrower shall not be required to increase
any such amounts payable to the Administrative Agent or any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to the Administrative Agents or such Lenders failure to comply
with the requirements of paragraph (d) or (e) of this Section or (ii) that are United States
withholding taxes imposed on amounts payable to the Administrative Agent or such Lender at the time
the Administrative Agent or such Lender becomes a party to this Agreement, except to the extent
that the Administrative Agents or such Lenders assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to such Non-Excluded Taxes
pursuant to this paragraph (a).
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by any Loan Party, as promptly
as reasonably possible thereafter such Loan Party shall send to the Administrative Agent for its
own account or for the account of the relevant Lender, as the case may be, (i) a certified copy of
an original official receipt received by such Loan Party showing payment thereof or (ii) if such
Loan Party reasonably determines that it is unable to provide a certified copy of such receipt, a
certificate as to the amount of such payment. If the relevant Loan Party fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority or fails to remit to
the Administrative Agent copies of the required receipts or other required documentary evidence,
such Loan Party shall indemnify
the Administrative Agent and the Lenders for any incremental taxes, interest or penalties that
may become payable by the Administrative Agent or any Lender as a result of any such failure.
(d) Each Lender (or Transferee) that is not a United States Person as defined in Section
7701(a)(30) of the Code (a
Non-U.S. Lender
) shall deliver to the Borrower and the
Administrative Agent (or, in the case of a Participant, to the Administrative Agent and the Lender
from which the related participation shall have been purchased) two copies of either U.S. Internal
Revenue Service (
IRS
) Form W-8BEN claiming eligibility for benefits of an income tax
treaty to which the United States is a party, Form W-8ECI or Form W-8IMY (accompanied by applicable
underlying IRS forms), or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of portfolio
interest, a statement substantially in the form of Exhibit F and two copies of the applicable Form
W-8, or any subsequent versions thereof or successors thereto, in each case properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S.
federal withholding tax on all payments by the Borrower under this Agreement and the other Loan
Documents. Such forms shall be delivered by each Non-U.S. Lender on or before the date it becomes
a party to this Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation). In addition, each Non-U.S. Lender shall deliver
such forms promptly upon the expiration, obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower and the
Administrative Agent at any time it determines that it is no longer in a position to provide any
previously delivered certificate to the Borrower and the Administrative Agent (or any other form of
certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other
provision of this paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant
to this paragraph that such Non-U.S. Lender is not legally able to deliver.
30
(e) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrower (or the Administrative Agent), such properly completed
and executed documentation prescribed by applicable law as will permit such payments to be made
without withholding or at a reduced rate,
provided
that such Lender is legally entitled to
complete, execute and deliver such documentation and in such Lenders reasonable judgment such
completion, execution or submission would not materially prejudice the commercial or legal position
of such Lender.
(f) Any Lender that is a United States person as defined in Section 7701(a)(30) of the Code
shall deliver to the Borrower (with a copy to the Administrative Agent) a duly completed and signed
IRS Form W-9 (or successor form) establishing that the Lender is organized under the laws of the
United States and is not subject to backup withholding.
(g) If the Administrative Agent or any Lender determines, in its sole discretion (exercised in
good faith), that it has received a refund of any Non-Excluded Taxes or Other Taxes as to which it
has been indemnified by the Borrower or with respect to which the Borrower has paid additional
amounts pursuant to this Section 2.17, it shall pay over such refund to the Borrower (but only to
the extent of indemnity payments made, or additional amounts paid, by the Borrower under this
Section 2.17 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of the Administrative Agent or such Lender and without interest
(other than any interest paid by the relevant Governmental Authority with respect to such refund);
within 45 Business Days of the determination that the Borrower is entitled to such refund
provided
, that the Borrower, upon the request of the Administrative Agent or such Lender,
agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This paragraph shall not be construed
to require the Administrative Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower or to any other
Person.
(h) Each Lender shall indemnify the Administrative Agent, within 10 days after demand
therefor, for the full amount of any Taxes attributable to such Lender that are payable or paid by
the Administrative Agent, and reasonable expenses arising therefrom or with respect thereto,
whether or not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
any Lender by the Administrative Agent shall be conclusive absent manifest error.
(i) The agreements in this Section shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
2.18.
Indemnity
. The Borrower agrees to indemnify each Lender for, and to hold each Lender harmless from,
any loss or expense that such Lender may sustain or incur as a consequence of (a) default by the
Borrower in making a conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this Agreement (other than
by operation of Section 2.14), (b) default by the Borrower in making any prepayment of or
conversion from Eurodollar Loans after the Borrower has given a notice thereof in accordance with
the provisions of this Agreement or (c) the making of a prepayment of Eurodollar Loans on a day
that is not the last day of an Interest Period with respect thereto. Such indemnification may
include an amount equal to the excess, if any, of (i) the amount of interest that would have
accrued on the amount so prepaid, or not so converted or continued, for the period from the date of
such prepayment or of such failure to
31
convert or continue to the last day of such Interest Period
(or, in the case of a failure to convert or continue, the Interest Period that would have commenced
on the date of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included therein, if any) over (ii)
the amount of interest (as reasonably determined by such Lender) that would have accrued to such
Lender on such amount by placing such amount on deposit for a comparable period with leading banks
in the interbank eurodollar market. A certificate as to any amounts payable pursuant to this
Section submitted to the Borrower by any Lender shall be presumptively correct in the absence of
manifest error. This covenant shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
2.19.
Change of Lending Office
. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of
Section 2.16 or 2.17(a) with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to designate another
lending office for any Loans affected by such event with the object of avoiding the consequences of
such event; provided, that such designation is made on terms that, in the sole judgment of such
Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect or postpone any of
the obligations of the Borrower or the rights of any Lender pursuant to Section 2.16 or 2.17(a).
2.20.
Intercreditor Agreement
. Each Lender hereby authorizes and directs the Administrative Agent and the Collateral Agent
to enter into the Intercreditor Agreement on its behalf and hereby approves and agrees to be bound
by the terms of the Intercreditor Agreement (including the subordination of its Liens on the
Collateral to the extent provided in the Intercreditor Agreement). Notwithstanding anything to the
contrary herein, in the case of any inconsistency between this Agreement and the Intercreditor
Agreement, the Intercreditor Agreement shall govern. The Lenders acknowledge that the First Lien
Loans, First Lien Specified Letters of Credit, First Lien Specified Swap Agreements and First Lien
Specified Cash Management Agreements and related obligations are secured by the Collateral, subject
to the Intercreditor Agreement, and that the First Lien Obligations may be increased from time to
time, including pursuant to the First Lien Incremental Facility or by amendment.
2.21.
No Requirement of Lender Signatures
. Each Lender listed on Schedule 1.1A shall be a party hereto in accordance with the Plan of
Reorganization and, pursuant to the Plan of Reorganization, is bound hereby without the requirement
of any Lender to execute a signature page hereto.
SECTION 3. [RESERVED]
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement, each Loan Party hereby
jointly and severally represents and warrants to the Agents and each Lender that:
4.1.
No Change
. Since the Petition Date, there has been no development or event that has had or could
reasonably be expected to have a Material Adverse Effect (it being agreed that solely for purposes
of this Section 4.1 no change in automotive industry conditions or in banking, financial or capital
markets on and after such date which does not disproportionately adversely affect the Borrower and
its Subsidiaries, taken as a whole, shall have a Material Adverse Effect).
4.2.
Existence; Compliance with Law
. Each Loan Party (a) is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, (b) has the power and authority, and the legal right, to
own and operate its property, to lease the property it operates as lessee
32
and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign corporation or other
organization and in good standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification and (d) is in
compliance with all Requirements of Law.
4.3.
Power; Authorization; Enforceable Obligations
. Upon entry by the Bankruptcy Court of the Confirmation Order, each Loan Party has the power
and authority, and the legal right, to make, deliver and perform the Loan Documents to which it
is a party and, in the case of the Borrower, to issue the Loans hereunder. Each Loan Party
has taken all necessary organizational action to authorize the execution, delivery and performance
of the Loan Documents to which it is a party and, in the case of the Borrower, to authorize the
issuance of the Loans on the terms and conditions of this Agreement. No consent or authorization
of, filing with, notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the issuance of the Loans hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement or any of the Loan
Documents except (i) consents, authorizations, filings and notices described in Schedule 4.3, which
consents, authorizations, filings and notices have been obtained or made and are in full force and
effect and (ii) the filings referred to in Section 4.20. Each Loan Document has been duly executed
and delivered on behalf of each Loan Party thereto. This Agreement constitutes, and each other
Loan Document upon execution will constitute, a legal, valid and binding obligation of each Loan
Party party thereto, enforceable against each such Loan Party in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).
4.4.
No Legal Bar
. The execution, delivery and performance of this Agreement and the other Loan Documents, the
issuance of the Loans hereunder will not violate any Requirement of Law or any Contractual
Obligation of any Loan Party and will not result in, or require, the creation or imposition of any
Lien on any of their respective properties or revenues pursuant to any Requirement of Law or any
such Contractual Obligation (other than the Liens created by the Loan Documents and the First Lien
Loan Documents).
4.5.
Litigation
. No litigation, investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Borrower, threatened by or against any Loan Party
or against any of their respective properties or revenues (including with respect to the Loan
Documents) that could reasonably be expected to have a Material Adverse Effect.
4.6.
No Default
. No Loan Party is in default under or with respect to any of its Contractual Obligations in
any respect that could reasonably be expected to have a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing.
4.7.
Ownership of Property; Liens
. Except as could not reasonably be expected to have a Material Adverse Effect, each Loan
Party has title in fee simple to, or a valid leasehold, subleasehold, license or other interest
in, all its real property, and good title to, or a valid leasehold interest in, all its other
property, and none of such property, except for minor encumbrances and defects in title that do not
materially interfere with its ability to conduct its business as currently conducted or to utilize
such properties and assets for their intended purposes is subject to any Lien except as permitted
by Section 7.3.
4.8.
Intellectual Property
. Each Loan Party owns, or is licensed to use, all Intellectual Property necessary for the
conduct of its business as currently conducted. No material claim has been asserted and is pending
by any Person against any Loan Party challenging or questioning the use of any Intellectual
Property or the validity or effectiveness of any Intellectual Property of any Loan Party, nor
33
does
the Borrower know of any valid basis for any such claim. To the knowledge of the Borrower, no use
by each Loan Party of any of its material Intellectual Property infringes on the rights of any
Person in any material respect.
4.9.
Taxes
. Each Loan Party has filed or caused to be filed all Federal and material state and other
material tax returns that are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any material assessments made against it or any of its property and
all other material taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (except any such taxes the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which reserves in conformity
with GAAP (where GAAP requires such reserves) have been provided on the books of the relevant Loan
Party); no tax Lien has been filed, and, to the knowledge of the Borrower, no claim is being
asserted, with respect to any such tax, fee or other charge.
4.10.
Federal Regulations
. No part of the proceeds of any Loans, and no other extensions of credit hereunder, will be
used (a) for buying or carrying any margin stock within the respective meanings of each of
the quoted terms under Regulation U as now and from time to time hereafter in effect for any
purpose that violates the provisions of the Regulations of the Board or (b) for any purpose that
violates the provisions of the Regulations of the Board. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form
U-1, as applicable, referred to in Regulation U.
4.11.
Labor Matters
. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse
Effect: (a) there are no strikes or other labor disputes against any Loan Party pending or, to the
knowledge of the Borrower, threatened; (b) hours worked by and payment made to employees of each
Loan Party have not been in violation of the Fair Labor Standards Act or any other applicable
Requirement of Law dealing with such matters; and (c) all payments due from any Loan Party on
account of employee health and welfare insurance have been, in all material respects, paid or
accrued as a liability on the books of the relevant Loan Party.
4.12.
ERISA
. Except, in the aggregate, as could not reasonably be expected to result in a Material
Adverse Effect, (i) each Loan Party and each of their respective ERISA Affiliates is in compliance
with the applicable provisions of ERISA and the Code relating to Single Employer Plans and
Multiemployer Plans and the regulations and published interpretations thereunder and (ii) no ERISA
Event has occurred during the five-year period prior to the date on which this representation is
made or deemed made with respect to any Plan. Except, in the aggregate, as could not reasonably be
expected to result in a Material Adverse Effect, the present value of all accrued benefits under
each Single Employer Plan (based on those assumptions used to fund such Plan) did not, as of the
last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the value of the assets of such Plan
allocable to such accrued benefits.
4.13.
Investment Company Act; Other Regulations
. No Loan Party is an investment company, or a company controlled by an investment
company, within the meaning of the Investment Company Act of 1940, as amended. No Loan Party is
subject to regulation under any Requirement of Law (other than Regulation X of the Board) that
limits its ability to incur the Indebtedness to be incurred hereunder.
4.14.
Subsidiaries
. As of the date hereof, (a) Schedule 4.14 sets forth the name and jurisdiction of
incorporation of each Subsidiary and, as to each such Subsidiary, the percentage of each class of
Capital Stock owned by any Loan Party and (b) except as set forth on Schedule 4.14, there are no
34
outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments
(other than stock options or similar equity awards granted to current or former employees or
directors and directors qualifying shares) of any nature relating to any Capital Stock of the
Borrower or any Subsidiary.
4.15.
[Reserved]
.
4.16.
Environmental Matters
. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse
Effect:
(a) the facilities and properties owned, leased or operated by any Group Member
(the
Properties
) do not contain, and to the knowledge of the Borrower,
have not previously contained, any Materials of Environmental Concern in amounts or
concentrations or under circumstances that constitute or constituted a violation of,
or could give rise to liability under, any Environmental Law;
(b) no Group Member has received or is aware of any notice of violation,
alleged violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any of
the Properties or the business operated by any Group Member (the
Business
), nor does the Borrower have knowledge or reason to believe that
any such notice will be received or is being threatened;
(c) Materials of Environmental Concern have not been transported or disposed of
from the Properties during the last five years or, to the knowledge of the Borrower,
any prior time in violation of, or in a manner or to a location that could give rise
to liability under, any Environmental Law, nor have any Materials of Environmental
Concern been generated, treated, stored or disposed of at, on or under any of the
Properties during the last five years or, to the knowledge of the Borrower, any
prior time in violation of, or in a manner that could give rise to liability under,
any applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative action is pending
or, to the knowledge of the Borrower, threatened, under any Environmental Law to
which any Group Member is or will be named as a party with respect to the Properties
or the Business, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the Properties
or the Business;
(e) there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to the
operations of any Group Member in connection with the Properties or otherwise in
connection with the Business, during the last five years or, to the knowledge of the
Borrower, any prior time in violation of or in amounts or in a manner that could
give rise to liability under Environmental Laws;
(f) the Properties and all operations at the Properties are in compliance, and
have in the last five years and, to the knowledge of the Borrower, at all prior
times been in compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about the Properties or violation of any Environmental
Law with respect to the Properties or the Business; and
35
(g) no Group Member has assumed any liability by contract or, to the knowledge
of the Borrower, operation of law, of any other Person under Environmental Laws.
4.17.
Accuracy of Information, etc
. No factual statement or information contained in this Agreement, any other Loan Document or
any other document, certificate or statement furnished by or on behalf of any Loan Party to the
Administrative Agent, the Lenders or the Bankruptcy Court, or any of them, for use in connection
with the transactions contemplated by this Agreement or the other Loan Documents other than any
projections or pro forma information, when taken as a whole, contained as of the date such
statement, information, document or certificate was so furnished, any untrue statement of a
material fact or omitted to state a material fact necessary to make the statements contained herein
or therein not materially misleading in light of the circumstances when made. The projections and
pro forma information contained in the materials referenced above are based upon good faith
estimates and assumptions believed by management of the Borrower to be reasonable at the time made,
it being recognized by the Lenders that such projections as they relate to future events are
subject to significant uncertainties, many of which are beyond the control of the Borrower and not
to be viewed as fact and that actual results during the period or periods covered by such
projections may differ from the projected results set forth therein by a material amount.
4.18.
Financial Statements
. (a) The unaudited pro forma consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at October 3, 2009 (including the notes thereto) (the
Pro Forma Balance
Sheet
), copies of which will be furnished to the Administrative Agent on or prior to the
Closing Date, will have been prepared giving effect (as if such events had occurred on such date)
to (i) the occurrence of the Effective Date, (ii) the First Lien Term Loans made on the Closing
Date and the use of the proceeds thereof, (iii) the Loans issued on the Closing Date and (iv) the
payment of fees and expenses in connection with the foregoing. The Pro Forma Balance Sheet will have been prepared based on
the best information available to the Borrower as of the date of delivery thereof, and will present
fairly on a pro forma basis the estimated financial position of the Borrower and its consolidated
Subsidiaries as at October 3, 2009, assuming that the events specified in the preceding sentence
had actually occurred at such date.
(b) [
Reserved
.]
(c) The (i) audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as of December 31, 2008 and the related statements of income and cash flow for the
fiscal year ending on such date and (ii) unaudited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as of June 30, 2009 and the related statements of income and cash
flow for the fiscal quarter ending on such date, each as heretofore furnished to the Administrative
Agent and the Lenders and certified by a Responsible Officer of the Borrower, are complete and
correct in all material respects and fairly present the financial condition of the Borrower and its
Subsidiaries on such date. All such financial statements, including the related schedules and notes
thereto, have been prepared in conformity with GAAP applied on a consistent basis, and all
liabilities, direct and contingent, of the Borrower on a consolidated basis with its Subsidiaries
on such date required to be disclosed pursuant to GAAP are disclosed in such financial statements,
subject to year-end audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
4.19.
Insurance
. All policies of insurance of any kind or nature owned by or issued to each Loan Party,
including policies of life, fire, theft, product liability, public liability, property damage,
other casualty, employee fidelity, workers compensation, employee health and welfare, property and
liability insurance, are (a) in full force and effect except to the extent commercially reasonably
determined by the Borrower not to be necessary pursuant to clause (b) of this Section 4.19 or which
is not
36
material to the overall coverage and (b) are of a nature and provide such coverage as in the
reasonable opinion of the Borrower, is sufficient and is customarily carried by companies of the
size and character of the Loan Parties.
4.20.
Security Documents
. (a) The Guarantee and Collateral Agreement is effective to create in favor of the
Collateral Agent, for its benefit, for the benefit of the Administrative Agent and for the benefit
of the Lenders, a legal, valid and enforceable security interest in the Collateral described
therein and proceeds thereof. In the case of the Pledged Stock described in the Guarantee and
Collateral Agreement, when stock certificates representing such Pledged Stock are delivered to the
First Lien Agent, as bailee, (together with a properly completed and signed stock power or
endorsement), and in the case of the other Collateral described in the Guarantee and Collateral
Agreement, when financing statements and other filings specified on Schedule 4.20(a) in appropriate
form are filed in the offices specified on Schedule 4.20(a) together with payment of any filing or
recordation fees, or, with respect to after-acquired property, when the requirements set forth in
Section 6.9 have been complied with, the Collateral Agent shall have a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in such Collateral and the
proceeds thereof (except for registration of and application for Intellectual Property filed
outside the United States) to the extent such Lien can be perfected by the filing of financing
statements under the applicable UCC, as security for the Obligations (as defined in the Guarantee
and Collateral Agreement), in each case prior and superior in right to any other Person (except, in
the case of Collateral other than Pledged Stock, Liens permitted by Section 7.3, and in the case of
the Collateral constituting Pledged Stock, inchoate Liens arising by operation of law and, in any
case, the Liens created
under the First Lien Loan Documents), in each case, to the extent required by the Guarantee
and Collateral Agreement.
(b) Each of the Mortgages is effective to create in favor of the Collateral Agent, for its
benefit, for the benefit of the Administrative Agent and for the benefit of the Lenders, a legal,
valid and enforceable Lien on the Mortgaged Property described therein, and when the Mortgages are
filed in the offices specified on Schedule 4.20(b), each such Mortgage shall constitute a Lien on,
and security interest in, all right, title and interest of the Loan Parties in the subject
Mortgaged Property, as security for the Obligations (as defined in the relevant Mortgage), in each
case prior and superior in right to any other Person (except Liens permitted by Section 7.3). Part
1 of Schedule 1.1B lists, as of the date hereof, each parcel of owned real property located in the
United States and held by the Borrower or any of the Guarantors that has a fair market value
estimated in good faith by the Borrower, in excess of $5,000,000 (each, a
Mortgaged
Property
). Part 2 of Schedule 1.1B lists, as of the date hereof, (A) each parcel of owned
real property located in the United States and held by the Borrower or any of the Guarantors that
has a fair market value estimated in good faith by the Borrower in excess of $1,000,000 which is
not listed on Part 1 of Schedule 1.1B, and (B) each material parcel of real property located in the
United States and which is leased (as lessee) or subleased (as sublessee) by the Borrower or any of
the Guarantors.
4.21.
Solvency
. After giving effect to the occurrence of the Effective Date and the incurrence of all
Indebtedness and Obligations being incurred in connection herewith and therewith, the Borrower is
Solvent.
4.22.
Regulation H
. Except as disclosed in Schedule 4.22, no Mortgage encumbers improved real property that is
located in an area that has been identified by the Secretary of Housing and Urban Development as an
area having special flood hazards and in which flood insurance has been made available under the
National Flood Insurance Act of 1968, as amended.
37
SECTION 5. CONDITIONS PRECEDENT
The agreement of each Lender to accept the issuance of the Loans to it on the Closing Date is
subject to the satisfaction, prior to or concurrently with issuance of the Loans on the Closing
Date, of the following conditions precedent:
(a)
Credit Agreement
. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by the Borrower, (ii) the Guarantee and
Collateral Agreement, executed and delivered by the Borrower and each Guarantor, and
(iii) the Intercreditor Agreement, executed and delivered by the Administrative
Agent, the Collateral Agent, the First Lien Agent, the Borrower and each Guarantor.
(b)
Closing Certificate; Certified Certificate of Incorporation; Good
Standing Certificates
. The Administrative Agent shall have received (i) a
certificate of a Responsible Officer of each Loan Party, dated the Closing Date, in
form and substance reasonably satisfactory to the Administrative Agent, as to the
incumbency and signature of their respective officers executing each Loan Document
to which it is a party, together with satisfactory evidence of the incumbency of
such Responsible Officer, (ii) a copy of the resolutions, in form and substance
reasonably satisfactory to the Administrative Agent, of the Board of Directors (or the executive committee or other governing
authority thereof) of each Loan Party authorizing the execution, delivery and
performance of each Loan Document to be entered into on the Closing Date to which it
is a party, (iii) a certificate of the Borrower, in form and substance reasonably
satisfactory to the Administrative Agent, attaching the certificate of incorporation
of each Loan Party that is a corporation certified by the relevant authority of the
jurisdiction of organization of such Loan Party and (iv) a good standing certificate
for each Loan Party from its jurisdiction of organization.
(c)
Representations and Warranties
. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents shall be true
and correct in all material respects (
provided
that if any representation or
warranty is by its terms qualified by materiality, such representation shall be true
and correct in all respects) on and as of such date as if made on and as of such
date, except to the extent that any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or warranty
shall be true and correct on and as of such earlier date.
(d)
Fees
. The Lenders and the Administrative Agent shall have received
all fees required to be paid, and all expenses for which invoices have been
presented (including the reasonable fees and expenses of legal counsel), on or
before the Closing Date.
(e)
Legal Opinion of Counsel to the Borrower
. The Administrative Agent
shall have received (i) an opinion, in form and substance reasonably satisfactory to
the Administrative Agent, of counsel to the Borrower and its Subsidiaries and (ii)
the legal opinion of local counsel in jurisdictions in which the Mortgages have been
filed as may be reasonably requested by the Administrative Agent.
(f)
[Reserved]
.
(g)
[Reserved]
.
38
(h)
Confirmation Order
. The Bankruptcy Court shall have entered an
order confirming the Plan of Reorganization, which order (the
Confirmation
Order
) (i) shall be in form and substance reasonably satisfactory to the
Administrative Agent, (ii) shall authorize the Facility and (iii) unless the
Administrative Agent otherwise agrees, shall be in full force and effect and shall
not have been reversed or modified and shall not be stayed or subject to a motion to
stay or subject to appeal or petition for review, rehearing or certiorari. The
Canadian Court shall have entered an order in the CCAA Cases recognizing and
implementing the Confirmation Order with respect to the Canadian Debtors, which
order (i) shall be consistent with the Confirmation Order except to the extent
otherwise reasonably satisfactory to the Administrative Agent and (ii) unless the
Administrative Agent otherwise agrees, shall be in full force and effect and shall
not have been reversed or modified and shall not be stayed or subject to a motion to
stay or subject to appeal or petition for review, rehearing or certiorari. The
Effective Date shall have occurred (and all conditions precedent thereto as set
forth therein shall have been satisfied (or shall be concurrently satisfied) or
waived by the Administrative Agent).
(i)
Repayment of DIP Facility
. The DIP Facility shall have been repaid
in full in cash and all commitments relating thereto shall have been terminated, and
all liens and security interests related thereto shall have been terminated, released or
continued, as applicable.
(j)
Projections
. The Borrower shall have delivered projections through
2012 prepared in good faith on the basis of the assumptions stated therein.
(k)
First Lien Term Loans
. (i) The First Lien Credit Agreement shall
be substantially in the form executed on October 23, 2009 and otherwise reasonably
satisfactory to the Administrative Agent, and (ii) the Administrative Agent shall
have received reasonably satisfactory evidence that the conditions to the
effectiveness of the First Lien Loan Documents shall have been satisfied or waived
in accordance with their terms.
(l)
Pro Forma Balance Sheet; Financial Statements
. The Lenders shall
have received (i) the Pro Forma Balance Sheet, (ii) audited consolidated financial
statements of the Borrower and its Subsidiaries for the most recently ended fiscal
year and (iii) unaudited interim consolidated financial statements of the Borrower
and its Subsidiaries for each fiscal quarter ended after the date of the latest
applicable financial statements delivered pursuant to clause (i) of this paragraph
as to which such financial statements are available.
(m)
No Default
. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the extensions of credit
requested to be made on such date.
(n)
[Reserved]
.
(o)
Ratings
. The Borrower shall have used commercially reasonable
efforts to obtain a rating for the Facility from both S&P and Moodys.
(p)
Insurance
. The Administrative Agent shall have received insurance
certificates satisfying the requirements of the First Lien Loan Documents and
satisfactory to the First Lien Agent.
39
(q)
Pledged Stock; Stock Powers; Pledged Notes
. The First Lien Agent,
as bailee for the Secured Parties, shall have received (i) the certificates
representing the shares of Capital Stock pledged pursuant to the Security Documents,
together with an undated stock power for each such certificate executed in blank by
a duly authorized officer of the pledgor thereof and (ii) each promissory note (if
any) pledged to the Collateral Agent pursuant to the Security Documents endorsed
(without recourse) in blank (or accompanied by an executed transfer form in blank)
by the pledgor thereof, in each case of the foregoing, to the extent delivered as a
condition to the Closing Date under the First Lien Credit Agreement and not
previously delivered to the DIP Agent under the DIP Credit Agreement.
(r)
Mortgages, etc.
(i) The Administrative Agent shall have received
a Mortgage with respect to each Mortgaged Property, executed and delivered by a duly
authorized officer of each party thereto.
(ii) To the extent delivered to the First Lien Agent, the Administrative Agent
shall have received, and the title insurance company issuing the policy referred to
in clause (iii) below (the
Title Insurance Company
) shall have received,
maps or plats of an as-built survey of the sites of the Mortgaged Properties
certified to the Administrative Agent and the Title Insurance Company in a manner
reasonably satisfactory to the First Lien Agent, dated a date reasonably
satisfactory to the First Lien Agent and the Title Insurance Company by an
independent professional licensed land surveyor reasonably satisfactory to the First
Lien Agent.
(iii) To the extent delivered to the First Lien Agent, the Administrative Agent
shall have received in respect of each Mortgaged Property with a fair market value
estimated in good faith by the Borrower in excess of $5,000,000 a binding pro forma
mortgagees title insurance policy (or policies) or marked-up unconditional
commitment to issue such insurance, in each case in form and substance reasonably
satisfactory to the First Lien Agent. Notwithstanding the foregoing, to avoid
duplication of title insurance premiums, the requirements of this Section 5(r)(ii)
shall be deemed satisfied if the Title Insurance Company either (x) issues a single
binding pro forma or marked-up unconditional commitment to issue a mortgagees title
insurance policy (or policies) insuring both the Mortgage in favor of the First Lien
Agent and the Mortgage in favor of the Administrative Agent in the aggregate amount
of the fair market value of the subject Mortgaged Property, or (y) issues a binding
pro forma or marked-up unconditional commitment to issue a mortgagees title
insurance policy (or policies) insuring the Mortgage in favor of the Administrative
Agent in the same amount as the binding pro forma or marked-up unconditional
commitment to issue a mortgagees title insurance policy (or policies) insuring the
Mortgage in favor of the First Lien Agent and such binding pro forma or marked-up
unconditional commitment to issue a mortgagees title insurance policy (or policies)
contains a so called pro-tanto endorsement. To the extent delivered to the First
Lien Agent, the Administrative Agent shall have received evidence reasonably
satisfactory to the First Lien Agent that all premiums in respect of each such
policy, all charges for mortgage recording tax, and all related expenses, if any,
have been paid.
(iv) To the extent delivered to the First Lien Agent, the Administrative Agent
shall have received in respect of each Mortgaged Property with a fair market value
estimated in good faith by the Borrower in excess of $5,000,000 (A) a policy of
flood insurance that (1) covers any parcel of improved real property that is
encumbered by any
40
Mortgage and located in a special flood hazard area, (2) is
written in an amount not less than the outstanding principal amount of the
indebtedness secured by such Mortgage that is reasonably allocable to such real
property, the fair market value of such real property as estimated in good faith by
the Borrower or the maximum limit of coverage made available with respect to the
particular type of property under the National Flood Insurance Act of 1968, as
amended, whichever is less, and (3) has a term ending not later than the maturity of
the Indebtedness secured by such Mortgage and (B) confirmation that the Borrower has
received the notice required pursuant to Section 208(e)(3) of Regulation H of the
Board with respect to any parcel of improved real property that is encumbered by any
Mortgage and located in a special flood hazard area.
(v) The Administrative Agent shall have received a copy of all recorded
documents referred to, or listed as exceptions to title in, the title policy or
policies referred to in clause (iii)) above which were delivered to the First Lien
Agent in connection with the First Lien Credit Agreement.
(s)
Lien Searches
. The Administrative Agent shall have received the
results of a recent lien search in each of the jurisdictions where any Loan Party is
organized, and such search shall reveal no liens on any of the assets of the Loan
Parties except for liens permitted by Section 7.3 or discharged on or prior to the
Closing Date pursuant to documentation reasonably satisfactory to the Administrative
Agent.
(t)
Filings, Registrations and Recordings
. Each document (including
any Uniform Commercial Code financing statement) required by the Security Documents
or under law or reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the Collateral Agent, for its
benefit, for the benefit of the Administrative Agent and for the ratable benefit of
the Lenders, a perfected Lien (or in the case of the Mortgages, a valid Lien) on the
Collateral described therein, prior and superior in right to any other Person (other
than with respect to Liens expressly permitted by Section 7.3), shall be in proper
form to the satisfaction of the Collateral Agent for filing, registration or
recordation.
For the purpose of determining compliance with the conditions specified in this Section 5, each
Lender that has accepted the distributions under the Plan of Reorganization shall be deemed to have
accepted, and to be satisfied with, each document or other matter required under this Section 5
unless the Administrative Agent shall have received written notice from such Lender prior to the
proposed Closing Date specifying its objection thereto.
SECTION 6. AFFIRMATIVE COVENANTS
Each Loan Party hereby jointly and severally agrees that so long as any Loan or other amount
is owing to any Lender or the Administrative Agent hereunder, each Loan Party shall and shall cause
each of its Subsidiaries to:
6.1.
Financial Statements
. Furnish to the Administrative Agent to be provided to each Lender:
(a) as soon as available, but in any event not later than 120 days after the
end of each fiscal year of the Borrower, a copy of the audited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end of such year
and the related audited consolidated statements of income and of cash flows for such
year, setting forth
41
in each case, in comparative form the figures for the previous
year, reported on without a qualification arising out of the scope of the audit or
other material qualification or exception (other than a going concern exception or
similar exception or qualification for fiscal year 2009), by independent certified
public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 60 days after the end
of each of the first three quarterly periods of each fiscal year of the Borrower,
commencing with the fiscal quarter ended on or about October 3, 2009, the unaudited
consolidated and consolidating (on the same basis as the Borrower prepared
consolidating financial statements prior to the Closing Date) balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter and the
related unaudited consolidated and consolidating (on the same basis as the Borrower
prepared consolidating financial statements prior to the Closing Date) statements of
income and of cash flows for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case, in comparative form the figures for the
previous year, certified by a Responsible Officer, on behalf of the Borrower, as
being fairly stated in all material respects.
All such financial statements shall be complete and correct in all material respects and shall be
prepared in reasonable detail and in accordance with GAAP applied (except (i) as approved by such
accountants or officer, as the case may be, and disclosed in reasonable detail therein and (ii)
with respect to unaudited statements, the absence of footnote disclosure and subject to year-end
audit adjustments) consistently throughout the periods reflected therein and with prior periods.
6.2.
Certificates; Other Information
. Furnish to the Administrative Agent which shall make such item available to each Lender
(or, in the case of clause (f), to the relevant Lender):
(a) [Reserved];
(b) concurrently with the delivery of any financial statements pursuant to
Section 6.1, (i) a certificate of the Borrower stating that the Responsible Officer
executing such certificate on behalf of the Borrower has no knowledge of any Default
or Event of Default except as specified in such certificate, (ii) a Compliance
Certificate containing all information and calculations necessary for determining
compliance by each Loan Party with the provisions of this Agreement referred to
therein, including calculations in reasonable detail with respect to compliance with
Section 7.1, and (iii) in the case of quarterly or annual financial statements, to
the extent not previously disclosed to the Administrative Agent, (1) a description
of any change in the jurisdiction of organization of any Loan Party, (2) a
description of any Domestic Subsidiary acquired or created, including name and
jurisdiction of organization, and (3) a description of any Person that has become a
Loan Party, in each case since the date of the most recent report delivered pursuant
to this clause (iii) (or, in the case of the first such report so delivered, since
the Closing Date);
(c) as soon as available, and in any event no later than 45 days after the end
of each fiscal year of the Borrower, a detailed consolidated budget for the
following fiscal year (including a projected consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of the following fiscal year, the
related consolidated statements of projected cash flow and projected income and a
description of the underlying assumptions applicable thereto), and, as soon as
available, significant revisions, if any, of
42
such budget and projections with
respect to such fiscal year (collectively, the
Projections
), which
Projections shall in each case be accompanied by a certificate of the Borrower
executed by a Responsible Officer, on behalf of the Borrower, stating that such
Projections are based on reasonable estimates, information and assumptions and that
such Responsible Officer executing such certificate, on behalf of the Borrower, has
no reason to believe that such Projections are incorrect or misleading in any
material respect, and that whether or not any such Projections are in fact achieved
are subject to significant uncertainties and contingencies, many of which are not
within the control of the Borrower, and that no assurance can be given that such
Projections will be realized, and actual results may vary from the projected results
and such variations may be material;
(d) concurrently with the delivery of any financial statements pursuant to
Section 6.1(a) or (b), a narrative discussion and analysis of the financial
condition and results of operations of the Borrower and its Subsidiaries for such fiscal
quarter and for the period from the beginning of the then current fiscal year to the
end of such fiscal quarter;
(e) within five days after the same are filed, copies of all financial
statements and reports that the Borrower may make to, or file with, the SEC;
(f) to the Administrative Agent on behalf of each Required Lender promptly
following receipt thereof, copies of any documents described in Sections 101(k) or
101(l) of ERISA that, following reasonable request of the Administrative Agent
(which right to request shall be exercised no more than once during a 12-month
period), any Loan Party or any ERISA Affiliate shall have promptly requested from
the administrator or sponsor of a Multiemployer Plan with respect to such
Multiemployer Plan; and
(g) promptly, subject to applicable confidentiality agreements of the Group
Members, such reasonably available additional financial and other information as any
Lender through the Administrative Agent may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.1, Section 6.2 or Section 6.7 may be
delivered electronically and if so delivered, shall be deemed to have been delivered on the date
received by the Administrative Agent. Each Lender shall be deemed to have received such documents
on the date on which such documents are posted on the Borrowers behalf on IntraLinks/IntraAgency
or another relevant website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial or governmental third-party website or whether sponsored by the
Administrative Agent);
provided
, that the Borrower shall notify (which may be by facsimile
or electronic mail) the Administrative Agent of the posting of any such documents and, at the
request of the Administrative Agent, provide by electronic mail electronic versions (i.e., soft
copies) of such documents.
6.3.
Payment of Obligations
. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent,
as the case may be, all its material obligations in respect of taxes, assessments and governmental
charges or levies of whatever nature, except where the amount or validity thereof is currently
being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the Borrower and its Subsidiaries.
6.4.
Maintenance of Existence; Compliance
. (a)(i) Preserve, renew and keep in full force and effect its organizational existence and
(ii) take all reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business, except, in each case, as otherwise permitted by
Section 7.4 and except, in the case of clause (ii) above, to the extent that
43
failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (b) comply in all material
respects with all Requirements of Law.
6.5.
Maintenance of Property; Insurance
. (a) Keep all property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted except as could not reasonably be expected to have a
Material Adverse Effect and (b) maintain with financially sound and reputable insurance companies
insurance on all its property in at least such amounts and against at least such risks (but
including in any event public
liability, product liability and business interruption) as are usually insured against in the
same general area by companies engaged in the same or a similar business.
6.6.
Inspection of Property; Books and Records; Discussions
. (a) Keep proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and activities and (b) permit
representatives of the Agents or any Lender (subject to reasonable confidentiality agreements) to
visit and inspect any of its properties and examine and make abstracts from any of its books and
records at any reasonable time upon reasonable notice and as often as may reasonably be desired and
to discuss the business, operations, properties and financial and other condition of the Group
Members with officers and managerial employees of the Group Members and with their independent
certified public accountants, provided that an officer of the Borrower shall be provided reasonable
opportunity to participate in any such discussion with the accountants; provided further that such
inspections shall be coordinated through the Administrative Agent so that in the absence of an
Event of Default, not more than one such inspection shall occur in any calendar year. The Agents
and the Lenders agree to use reasonable efforts to coordinate and manage the exercise of their
rights under this Section 6.6 so as to minimize the disruption to the business of the Borrower and
its Subsidiaries resulting therefrom.
6.7.
Notices
. Promptly give notice to the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any litigation or proceeding affecting any Loan Party (i) in which the
amount involved is $10,000,000 or more and not covered by insurance, (ii) in which
injunctive or similar relief is sought or (iii) which relates to any Loan Document;
(c) the occurrence of any ERISA Event that, alone or together with any other
ERISA Event(s) that have occurred, could reasonably be expected to result in
liability of any Loan Party or any of its ERISA Affiliates in an aggregate amount
exceeding $10,000,000; and
(d) any development or event that has had or could reasonably be expected to
have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible
Officer setting forth details of the occurrence referred to therein and stating what action the
relevant Loan Party proposes to take with respect thereto.
6.8.
Environmental Laws
. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse
Effect:
(a) comply with, and take all commercially reasonable steps to ensure
compliance by all tenants and subtenants, if any, with, all applicable Environmental
Laws, and obtain and comply with and maintain, and take all commercially reasonable
44
steps to ensure that all tenants and subtenants obtain and comply with and maintain,
any
and all licenses, approvals, notifications, registrations or permits required
by applicable Environmental Laws.
(b) conduct and complete all investigations, studies, sampling and testing, and
all remedial, removal and other actions required under Environmental Laws and
promptly comply with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws.
6.9.
Additional Collateral, etc.
(a) With respect to any property acquired after the Closing Date by any Loan Parties (other
than (x) any property described in paragraph (b) below and (y) any property constituting Excluded
Property) as to which the Collateral Agent, for the benefit of the Secured Parties, does not have a
perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the
Security Documents or such other documents as the Administrative Agent deems necessary or advisable
to grant to the Collateral Agent, for the benefit of the Secured Parties, a security interest in
such property and (ii) take all actions necessary or advisable to grant to the Collateral Agent,
for the benefit of the Secured Parties, a perfected first priority (or, prior to the First Priority
Obligations Payment Date, such priority as agreed in the Intercreditor Agreement) security interest
under the laws of the United States in such property, including the filing of Uniform Commercial
Code financing statements in such jurisdictions as may be required by the Security Documents or by
law or as may be requested by the Administrative Agent. Notwithstanding the foregoing, prior to the
First Lien Obligation Payment Date, this provision shall not apply with respect to any property
which has not been included in the Collateral under the First Lien Loan Documents.
(b) (i) As soon as possible (and in no event later than 45 days after the delivery of any
financial statements under subsection 6.1(a) or (b), for any fiscal period, in the case of
Subsidiaries referred to in the following clause (A) which period may be extended by the
Administrative Agent from time to time in its discretion), cause (A) all of the Capital Stock
(other than Excluded Property) owned directly or indirectly by the Borrower of each of the
Borrowers direct or indirect Domestic Subsidiaries (other than any Excluded Subsidiary or
Immaterial Subsidiary) to be pledged to the Collateral Agent, pursuant to an amendment to the
Security Documents reasonably requested by the Administrative Agent, (B) if requested by the
Administrative Agent, cause all of the Capital Stock (other than Excluded Property) owned directly
or indirectly by the Borrower of any of the Borrowers direct or indirect Domestic Subsidiaries
(other than any Excluded Subsidiary and whether or not such Domestic Subsidiary is an Immaterial
Subsidiary) to be pledged to the Collateral Agent pursuant to an amendment to the Security
Documents reasonably requested by the Administrative Agent, (C) 65% of the voting Capital Stock and
all non-voting Capital Stock (other than Excluded Property) of each of the Borrowers or any of its
Domestic Subsidiaries direct Foreign Subsidiaries which are not Immaterial Subsidiaries (or such
lesser amount as may be owned by the Borrower and its Domestic Subsidiaries), to be pledged to the
Collateral Agent pursuant to the Security Documents, for the ratable benefit of the Secured
Parties, pursuant to an amendment to the Security Documents reasonably requested by the
Administrative Agent and (D) the Administrative Agent to receive legal opinions of counsel to the
Borrower acceptable to the Administrative Agent covering such matters in respect of such pledges as
the Administrative Agent shall reasonably request. Notwithstanding the foregoing, prior to the
First Lien Obligation Payment Date, this provision shall not apply with respect to any property
which has not been included in the Collateral under the First Lien Loan Documents.
(ii) Notwithstanding the foregoing, cause the Capital Stock of any Special Purpose
Subsidiary or Subsidiary of the Borrower which acts as a purchaser of receivables for a
receivables securitization program of the Borrower and its Domestic Subsidiaries to be
pledged as
Collateral pursuant to the Security Documents. Notwithstanding the foregoing, prior to
the First
45
Lien Obligation Payment Date, (i) this provision shall not apply with respect to
any property which has not been included in the Collateral under the First Lien Loan
Documents and (ii) any delivery of the certificates representing the shares of Capital Stock
pledged under this provision shall be made to the
First Lien Agent, as bailee for the
Secured Parties, pursuant to the Intercreditor Agreement.
(c) (i) Prior to the First Priority Obligations Payment Date, as soon as possible, cause each
of the Borrowers direct or indirect Domestic Subsidiaries which is a Guarantor under the First
Lien Loan Documents to become a Guarantor by executing and delivering a joinder or assumption
agreement to the Guarantee and Collateral Agreement in a form reasonably requested by the
Administrative Agent if such Subsidiary is not then a Guarantor and opinions of counsel to the
Borrower, in form and substance reasonably satisfactory to the Administrative Agent, covering such
matters in respect of the Guarantee and Collateral Agreement as the Administrative Agent shall
reasonably request to be delivered to the Administrative Agent; and
(ii) After the First Priority Obligations Payment Date, as soon as possible, cause (z) each of
the Borrowers direct or indirect Domestic Subsidiaries (other than (A) an Excluded Subsidiary, (B)
an Immaterial Subsidiary (
provided
that all Immaterial Subsidiaries excluded under this
clause (B) and clause (b) of the definition of Guarantor shall not at any time contribute in the
aggregate more than 5% of Consolidated Assets or more than 5% of Consolidated Revenues), (C) a
joint venture in which not more than 85% of the aggregate Capital Stock of such joint venture is
held by the Loan Parties in the aggregate or (D) a direct holding company of one or more joint
ventures under clause (C) hereof,
provided
that such holding company does not engage in any
business or own any assets other than owning the Capital Stock of such joint ventures) to become a
Guarantor by executing and delivering a joinder or assumption agreement to the Guarantee and
Collateral Agreement in a form reasonably requested by the Administrative Agent if such Subsidiary
is not then a Guarantor and (y) to the extent not previously delivered, opinions of counsel to the
Borrower, in form and substance reasonably satisfactory to the Administrative Agent, covering such
matters in respect of the Guarantee and Collateral Agreement as the Administrative Agent shall
reasonably request to be delivered to the Administrative Agent.
(d) (i) Prior to the First Priority Obligations Payment Date, with respect to any fee interest
in any real property which has been mortgaged under the First Lien Loan Documents for which a
Mortgage hereunder has not been delivered, as soon as reasonably possible (i) execute and deliver a
Mortgage, in favor of the Collateral Agent, for its benefit, for the benefit of the Administrative
Agent and for the benefit of the Lenders, covering such real property, creating a Lien on such real
property prior and superior in right to all other Liens on such real property (except Liens
permitted by Section 7.3 and the Liens under the First Lien Loan Documents), (ii) if provided to
the First Lien Agent, provide the Collateral Agent, for its benefit, for the benefit of the
Administrative Agent and for the benefit of the Lenders with (x) a binding pro forma
mortgagees
title insurance policy or marked-up unconditional commitment to issue such insurance covering such
real property as well as a current map or plat of an as-built survey thereof, together with a
surveyors certificate and (y) any consents or estoppels delivered to the First Lien Agent in
connection with such mortgage, (iii) if delivered to the First Lien Agent, deliver to the Agents
legal opinions relating to the matters described above, which opinions shall be in form and
substance substantially similar to those to the First Lien Agent. Notwithstanding the foregoing,
to avoid duplication of title insurance premiums, the requirements of this Section 6.9(d)(i) shall
be deemed satisfied if the Title Insurance Company either (A) issues a single binding pro forma
46
or
marked-up unconditional commitment to issue a mortgagees title insurance policy (or policies)
insuring both the Mortgage in favor of the First Lien Agent and the Mortgage in favor of the
Administrative Agent in the aggregate amount of the fair market value of the subject Mortgaged
Property, or (B) issues a binding pro forma or marked-up unconditional commitment to issue a
mortgagees title insurance policy (or policies)
insuring the Mortgage in favor of the Administrative Agent in the same amount as the binding
pro forma or marked-up unconditional commitment to issue a mortgagees title insurance policy (or
policies) insuring the Mortgage in favor of the First Lien Agent and such binding pro forma or
marked-up unconditional commitment to issue a mortgagees title insurance policy (or policies)
contains a so called pro-tanto endorsement.
(ii) After the First Priority Obligations Payment Date, with respect to any fee interest in
any real property having a fair market value (together with improvements thereof) in the good faith
estimation of the Borrower of at least $5,000,000 or otherwise not constituting Excluded Property
acquired after such date by any Loan Party (other than any such real property subject to a Lien
expressly permitted by Section 7.3(g)), as soon as reasonably possible and in any event within 60
days after such acquisition (i) execute and deliver a Mortgage, in favor of the Collateral Agent,
for its benefit, for the benefit of the Administrative Agent and for the benefit of the Lenders,
covering such real property, creating a Lien on such real property prior and superior in right to
all other Liens on such real property (except Liens permitted by Section 7.3), (ii) if reasonably
requested by the Administrative Agent, provide the Collateral Agent, for its benefit, for the
benefit of the Administrative Agent and for the benefit of the Lenders with (x) a binding pro forma
mortgagees title insurance policy or marked-up unconditional commitment to issue such insurance
covering such real property in an amount equal to the purchase price of such real property (or such
lesser amount as shall be reasonably specified by the Administrative Agent) as well as a current
map or plat of an as-built survey thereof, together with a surveyors certificate and (y) any
consents or estoppels reasonably deemed necessary by the Administrative Agent in connection with
such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the
Administrative Agent and (iii) if requested by the Administrative Agent, deliver to the Agents
legal opinions relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative Agent.
6.10.
Post-Closing Matters
.
(a) (i) Prior to the First Priority Obligations Payment Date, maintain at all times
substantially all of the cash and Cash Equivalents of the Loan Parties (other than cash and Cash
Equivalents which are pledged to third parties to secure obligations of the Loan Parties) at an
account or accounts with the First Lien Agent or any other financial institution that has entered
into a control agreement in form and substance reasonably satisfactory to the First Lien Agent and
the Administrative Agent (it being hereby acknowledged by the Administrative Agent that the control
agreements in existence on the Closing Date in the form disclosed to the Administrative Agent are
satisfactory);
provided
, that (i) the Loan Parties may maintain accounts with financial
institutions other than the First Lien Agent and not subject to control agreements consisting of
(A) payroll accounts, which accounts shall at no time contain more cash than is necessary to meet
the periodic payroll obligations of the Borrower and its Subsidiaries, (B) accounts with balances
up to $10,000,000 in the aggregate, (C) trust accounts, so long as such trust accounts only contain
funds of third parties, (D) accounts, if any, maintained in connection with employee benefit plans,
so long as such accounts contain only funds required to be maintained by such employee benefit
plans and (E) prior to the First Priority Obligations Payment Date, accounts not otherwise
allowable under this proviso which the lenders under the First Lien Credit Agreement have consented
to be maintained with financial institutions other than the First Lien Agent and not subject to
control agreements.
(ii) After the First Priority Obligations Payment Date, maintain at all times substantially
all of the cash and Cash Equivalents of the Loan Parties (other than cash and Cash Equivalents
which are pledged to third parties to secure obligations of the Loan Parties) at an account or
accounts with the Administrative Agent or any other financial institution that has entered into a
control agreement in form and substance reasonably satisfactory to the Administrative Agent;
provided
, that (i) the Loan Parties may maintain accounts with financial institutions other
than the Administrative Agent and not subject to
47
control agreements consisting of (A) payroll
accounts, which accounts shall at no time contain more cash than is necessary to meet the periodic
payroll obligations of the Borrower and its Subsidiaries, (B) accounts with balances up to
$10,000,000 in the aggregate, (C) trust accounts, so long as such trust accounts only contain funds
of third parties and (D) accounts, if any, maintained in connection with employee benefit plans, so
long as such accounts contain only funds required to be maintained by such employee benefit plans.
(b) Cause the post-closing matters identified on Schedule 6.10 to be completed on or before
the date set forth on Schedule 6.10 for the relevant post-closing matter (which date may be
extended, if the respective post-closing matter pertains to the Collateral, by the First Lien
Agent, and otherwise by the First Lien Agent and the Administrative Agent, in each case from time
to time in its discretion).
SECTION 7. NEGATIVE COVENANTS
Each Loan Party hereby jointly and severally agrees that so long as any Loan or other amount
is owing to any Lender or the Administrative Agent hereunder, they shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly:
7.1.
Financial Covenants
.
(a)
Consolidated Leverage Ratio
. Permit, on the last day of any fiscal quarter
beginning with the first fiscal quarter end date following the Closing Date, the Consolidated
Leverage Ratio for the four consecutive fiscal quarters of the Borrower ending with such fiscal
quarter end date to exceed the amount set forth opposite such fiscal quarter below:
|
|
|
Fiscal Quarter
|
|
Consolidated Leverage Ratio
|
Q4 2009
|
|
10.00
|
Q1 2010
|
|
8.50
|
Q2 2010
|
|
6.75
|
Q3 2010
|
|
5.25
|
Q4 2010
|
|
3.75
|
Q1 2011
|
|
3.00
|
Q2 2011
|
|
2.75
|
Q3 2011
|
|
2.50
|
Q4 2011 and each fiscal quarter thereafter
|
|
2.25
|
48
(b)
Interest Coverage
. Permit, on the last day of any fiscal quarter beginning with
the first fiscal quarter end date following the Closing Date, the Interest Coverage Ratio for the
four consecutive fiscal quarters of the Borrower ending with such fiscal quarter end date to be
less than the amount set forth opposite such fiscal quarter below:
|
|
|
Fiscal Quarter
|
|
Interest Coverage Ratio
|
Q4 2009
|
|
1.00
|
Q1 2010
|
|
1.00
|
Q2 2010
|
|
1.00
|
Q3 2010
|
|
1.25
|
Q4 2010
|
|
1.25
|
Q1 2011 and each fiscal quarter thereafter
|
|
1.50
|
(c)
Capital Expenditures
. Permit the aggregate amount of Capital Expenditures made by
the Loan Parties during any fiscal year set forth below to exceed the amount set forth opposite
such fiscal year:
|
|
|
Fiscal Year
|
|
Maximum Capital Expenditure Amount
|
|
|
($)
|
2010
|
|
200,000,000
|
2011
|
|
215,000,000
|
2012
|
|
250,000,000
|
;
provided
, that (a) up to 100% of any such amount referred to above, if not expended in
the fiscal year for which it is permitted, may be carried over for expenditure in the next
succeeding fiscal year and (b) Capital Expenditures made pursuant to this Section during any fiscal
year shall be deemed made, first, in respect of amounts permitted for such fiscal year as provided above and, second, in respect of
amounts carried over from the prior fiscal year pursuant to clause (a) above.
7.2.
Indebtedness
. Create, issue, incur, assume, become liable in respect of or suffer to exist any
Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
49
(b) intercompany Indebtedness incurred pursuant to any Investment permitted by
Section 7.7(f) so long as any such Indebtedness owing by a Loan Party to any Person
other than a Loan Party shall, in each case, be evidenced by an Intercompany
Subordinated Note (other than, and solely to the extent that, such Intercompany
Subordinated Note would be prohibited by any law or regulation of a jurisdiction
where any such Person that is a Foreign Subsidiary is located or organized);
(c) unsecured Guarantee Obligations incurred in the ordinary course of business
or with respect to Indebtedness permitted pursuant to this Agreement by (i) the
Borrower or any of its Subsidiaries of obligations of the Borrower or any Guarantor
or (ii) any Subsidiary that is not Loan Party of any obligations of a Subsidiary
that is not a Loan Party;
(d) Indebtedness outstanding on the Closing Date (after giving effect to the
occurrence of the Effective Date) and listed on Schedule 7.2(d);
(e) Indebtedness (including, without limitation, Capital Lease Obligations)
secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not to
exceed $75,000,000 at any one time outstanding;
(f) additional Indebtedness of the Borrower or any of its Subsidiaries in an
aggregate principal amount not to exceed (x) with respect to the Loan Parties,
$100,000,000 and (y) with respect to Subsidiaries that are not Loan Parties,
$150,000,000, in each case, at any one time outstanding;
provided
that the
aggregate principal amount of Indebtedness under clauses (x) and (y) shall not
exceed $200,000,000 at any one time outstanding;
(g) Indebtedness of the Borrower or any of its Subsidiaries in respect of
workers compensation claims, self-insurance obligations, performance, bid and
surety bonds and completion guaranties, in each case in the ordinary course of
business;
(h) Indebtedness of the Borrower or any of its Subsidiaries arising from the
honoring by a bank or other financial institution of a check, draft or similar
instrument inadvertently drawn by the Borrower or such Subsidiary in the ordinary
course of business against insufficient funds, so long as such Indebtedness is
repaid within five Business Days;
(i) letters of credit issued for the account of any Group Member (including
First Lien Specified Letters of Credit and Specified Letters of Credit), so long as
the sum of (i) the aggregate undrawn face amount thereof, (ii) any unreimbursed
obligations in
respect thereof and (iii) the aggregate amount of pledges and deposits made
pursuant to Section 7.3(t) below does not exceed the LC Basket Limit at any time;
(j) obligations of Chinese Subsidiaries in respect of Chinese Acceptance Notes
in the ordinary course of business;
(k) Indebtedness of a joint venture (including a joint venture which is treated
as a Subsidiary as a result of FASB Interpretation No. 46 issued by the Financial
Accounting Standards Board) as long as such Indebtedness is non-recourse to the
Borrower or any other Subsidiary of the Borrower in an aggregate principal amount
not to exceed $150,000,000 at any time;
50
(l) Indebtedness incurred by any Group Member other than a Loan Party pursuant
to working capital lines of credit or any overdraft line or other cash management
system in an aggregate outstanding principal amount for all such Group Members at
the close of business on any day not to exceed $150,000,000;
(m) (i) Indebtedness of the Borrower under the First Lien Credit Agreement
(including pursuant to any First Lien Incremental Facility) in an aggregate
principal amount not to exceed the First Lien Cap Amount and other First Lien
Obligations (including, without limitation First Lien Specified Letters of Credit,
First Lien Specified Swap Agreements and First Lien Specified Cash Management
Agreements) and (ii) Guarantee Obligations of any Guarantor in respect of such
Indebtedness;
(n) Indebtedness under tax-favored or government-sponsored financing
transactions; provided that (i) the terms of such transactions and the Group Members
party thereto have been approved by the Administrative Agent;
provided
that
such approval shall be deemed given if the if the terms of such transactions have
been approved by the First Lien Agent, (ii) such Indebtedness is not senior in right
of payment to the Obligations, (iii) any Lien on Collateral arising pursuant to such
transactions is subordinated to the Liens on the Collateral securing the Obligations
and (iv) the aggregate principal amount of such Indebtedness shall not exceed
$100,000,000 at any time;
(o) Indebtedness incurred by any Group Member in order to finance Permitted
Acquisitions;
(p) Seller Debt and Earn-outs incurred in connection with Permitted
Acquisitions;
provided
, that such Seller Debt or Earn-outs shall be
subordinated and/or restricted in a manner reasonably satisfactory to the
Administrative Agent at the time they are contemplated to be incurred;
(q) Indebtedness of a Subsidiary of the Borrower acquired pursuant to a
Permitted Acquisition (or Indebtedness assumed at the time of a Permitted
Acquisition of an asset securing such Indebtedness); provided that (i) such
Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition, and (ii) such Indebtedness does not
constitute debt for borrowed money, it being understood and agreed that Capitalized
Lease Obligations and purchase money Indebtedness shall not constitute debt for
borrowed money for purposes of this subclause (ii);
(r) contingent obligations with respect to customary indemnification
obligations in favor of sellers in connection with Acquisitions permitted under
Section 7.7 and purchasers in connection with Dispositions permitted under
Section 7.5;
(s) provided that no Event of Default shall have occurred and be continuing or
would occur as a consequence thereof, Indebtedness which serves to refund, replace,
extend repurchase, redeem or refinance any Indebtedness permitted under paragraphs
(d), (e), (f), (o), (p) or (q) above, or any Indebtedness issued to so refund,
replace, extend, repurchase or refinance such Indebtedness, including, in each case,
additional Indebtedness incurred to pay premiums (including tender premiums),
defeasance costs and fees and expenses in connection therewith (collectively, the
Permitted Refinancing Indebtedness
) at or prior to its respective
maturity;
provided
,
however
, that:
51
(i) the weighted average life to maturity of such Permitted Refinancing
Indebtedness shall not be shorter than the weighted average life to maturity of such
refinanced Indebtedness at the time of such refunding or refinancing;
(ii) to the extent such Permitted Refinancing Indebtedness refinances
Indebtedness subordinated or pari passu to the Obligations, such Permitted
Refinancing Indebtedness is subordinated or pari passu to the Obligations at least
to the same extent as the Indebtedness being refunded or refinanced;
(iii) such Permitted Refinancing Indebtedness shall not be in a principal
amount in excess of the principal amount of, premium, if any, accrued interest on,
and related fees and expenses of, the Indebtedness being refunded, replaced,
extended, repurchased, redeemed or refinanced (including any premium, expenses,
costs and fees incurred in connection with such refund, replacement or refinancing);
(iv) the obligors in respect of such Permitted Refinancing Indebtedness
(including in their capacities as primary obligor and guarantor) are the same as for
the Indebtedness being refinanced; and
(v) any Liens securing such Permitted Refinancing Indebtedness are not extended
to any property which does not secure the Indebtedness being refinanced; and
(t) unsecured Indebtedness and unsecured Guarantee Obligations of any Loan
Party in respect of such unsecured Indebtedness so long as the Net Cash Proceeds
thereof are applied to prepay the First Lien Loans and cash collateralize any
letters of credit outstanding under the First Lien Credit Agreement and any
outstanding First Lien Specified Letters of Credit, in each case to the extent
required by and in accordance with the First Lien Credit Agreement and the
documentation for the First Lien Specified Letters of Credit, and after such
payments have been made in full, to repay the Loans in accordance with Section
2.9(a).
7.3.
Liens
. Create, incur, assume or suffer to exist any Lien upon any of its property, whether now
owned or hereafter acquired, except:
(a) Liens for taxes not yet due or that are being contested in good faith by
appropriate proceedings,
provided
that adequate reserves with respect
thereto (if required by GAAP) are maintained on the books of the Borrower or its Subsidiaries, as
the case may be, in conformity with GAAP (or, in the case of Foreign Subsidiaries,
generally accepted accounting principles in effect from time to time in their
respective jurisdiction of organization);
(b) landlords carriers, warehousemens, mechanics, materialmens,
repairmens, supplier, construction or other like Liens in the ordinary course of
business that are not overdue for a period of more than 45 days or that are being
bonded or contested in good faith by appropriate proceedings;
(c) (i) pledges or deposits made in connection with workers compensation,
unemployment insurance and other social security legislation, and (ii) Liens (A) of
a collecting bank arising in the ordinary course of business under Section 4-210 of
the Uniform Commercial Code in effect in the relevant jurisdiction covering only the
items being collected upon or (B) in favor of a banking institution or financial
intermediary,
52
encumbering amounts credited to deposit or securities accounts
(including the right of set-off) arising in the ordinary course of business in
connection with the maintenance of such accounts;
(d) deposits to secure the performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, surety and appeal bonds, performance
bonds, utility payments and other obligations of a like nature incurred in the
ordinary course of business;
(e) zoning restrictions, survey exceptions and such matters as an accurate
survey would disclose, mortgage rights, easements, rights-of-way, restrictions and
other similar encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and that do not in any case materially
detract from the value of the property subject thereto or materially interfere with
the ordinary conduct of the business of the Borrower or any of its Subsidiaries;
(f) Liens in existence on the Closing Date (after giving effect to the
occurrence of the Effective Date) and listed on Schedule 7.3(f) and extensions,
renewals and replacements of any such Liens so long as the principal amount of
Indebtedness or other obligations secured thereby is not increased and so long as
such Liens are not extended to any other property of the Borrower or any of its
Subsidiaries;
(g) Liens securing Indebtedness of the Borrower or any other Subsidiary
incurred pursuant to Section 7.2(e) to finance the acquisition of fixed or capital
assets;
provided
that (i) such Liens shall be created within 90 days of the
acquisition of such fixed or capital assets, (ii) such Liens do not at any time
encumber any property other than the property financed by such Indebtedness and
proceeds thereof and (iii) the amount of Indebtedness secured thereby is not
increased and extensions, renewals and replacements of any such Liens so long as the
principal amount of Indebtedness or other obligations secured thereby is not
increased and so long as such Liens are not extended to any other property of the
Borrower or any of its Subsidiaries;
(h) Liens created pursuant to the Loan Documents;
(i) any interest or title of a lessor under any lease entered into by the
Borrower or any other Subsidiary in the ordinary course of its business and covering
only the assets so leased;
(j) Liens with respect of leases, licenses, sublicenses or subleases granted to
others not interfering in any material respect with the businesses of the Borrower
or any of its Subsidiaries;
(k) Liens with respect to operating leases not prohibited under this Agreement
and entered into in the ordinary course of business;
(l) Liens not otherwise permitted by this Section so long as neither (i) the
aggregate outstanding principal amount of the obligations secured thereby nor (ii)
the aggregate fair market value (determined as of the date such Lien is incurred) of
the assets subject thereto exceeds (as to the Borrower and all Subsidiaries)
$75,000,000 at any one time;
provided
that not more than $50,000,000 of such
basket amount shall be available for Liens securing Indebtedness of the Borrower and
its Subsidiaries;
53
(m) Liens on the assets of a Foreign Subsidiary and its Subsidiaries securing
obligations of such Persons that are not prohibited by Section 7.2 so long as the
aggregate outstanding principal amount of the obligations for borrowed money secured
thereby does not exceed (as to all Foreign Subsidiaries) $75,000,000 at any one
time;
(n) receipt of progress payments and advances from customers in the ordinary
course of business to the extent same creates a Lien on the related inventory and
proceeds thereof;
(o) Liens on the assets of joint ventures and their Subsidiaries securing
obligations of such Persons that are not prohibited by Section 7.2 so long as such
Liens do not encumber any assets or property of the Borrower or its other
Subsidiaries;
(p) attachment, judgment or other similar Liens securing judgments or decrees
not constituting an Event of Default under Section 8.1(h) or securing appeal or
other surety bonds related to such judgments or decrees;
(q) Liens securing obligations (other than obligations representing
Indebtedness for borrowed money) under operating, reciprocal easement or similar
agreements entered into in the ordinary course of business;
(r) statutory Liens and rights of offset arising in the ordinary course of
business of the Borrower and its Subsidiaries;
(s) Liens on assets of Foreign Subsidiaries securing Indebtedness of a Foreign
Subsidiary permitted by Sections 7.2(f) and 7.2(k) and securing other obligations
under the agreements governing or relating to such Indebtedness, so long as such
Liens do not encumber the Capital Stock of the Borrower or any of its Subsidiaries;
(t) pledges or deposits made to support any obligations of the Group Members
(including cash collateral to secure obligations under letters of credit permitted
pursuant to Section 7.2(i)) so long as (without duplication) the sum of (i) the
aggregate undrawn face amount of letters of credit permitted pursuant to Section
7.2(i) above, (ii) any unreimbursed obligations in respect of letters of credit permitted pursuant
to Section 7.2(i) above and (iii) the aggregate amount of such pledges and deposits
does not exceed the limit set forth in Section 7.2(i);
(u) Liens arising in connection with financing transactions permitted by
Section 7.2(n), provided that such liens do not at any time encumber any property
unless approved by the Administrative Agent provided that such approval shall be
deemed given if the encumbrance has been approved by the First Lien Agent, and such
Liens otherwise comply with Section 7.2(n);
(v) Liens securing the First Lien Obligations;
(w) Liens on property or assets acquired pursuant to a Permitted Acquisition,
or on property or assets of a Subsidiary of the Borrower in existence at the time
such Subsidiary is acquired pursuant to a Permitted Acquisition; provided that (i)
any Indebtedness that is secured by such Liens is permitted to exist under Section
7.2(q), and (ii) such Liens are not incurred in connection with, or in contemplation
or anticipation of, such Permitted Acquisition and do not attach to any other asset
of the Borrower or any of
54
its Subsidiaries and extensions, renewals and replacements
of any such Liens so long as the principal amount of Indebtedness or other
obligations secured thereby is not increased and so long as such Liens are not
extended to any other property of the Borrower or any of its Subsidiaries;
(x) statutory Liens and Liens granted by any orders in any proceeding in
connection with the CCAA Cases, in each case on any assets of any Canadian
Subsidiary of the Borrower;
(y) Liens on receivables and customary related assets subject to a Receivable
Financing Transaction; and
(z) the exchange or transfer within China of Chinese Acceptance Notes by
Chinese Subsidiaries of the Borrower in the ordinary course of business.
7.4.
Fundamental Changes
. Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its
property or business, except that:
(a) any Subsidiary of the Borrower may be merged, consolidated with or into or
transferred to the Borrower (
provided
that the Borrower shall be the
continuing or surviving corporation) or with, into or to any Guarantor
(
provided
that the Guarantor shall be the continuing or surviving
corporation or simultaneously therewith, the continuing corporation shall become a
Guarantor);
(b) any Subsidiary of the Borrower that is not a Loan Party may be merged,
consolidated, amalgamated, liquidated, wound-up, dissolved or all or substantially
all of its property or business Disposed of with, into or to a Subsidiary that is
not a Loan Party;
(c) any Subsidiary of the Borrower may Dispose of any or all of its assets to
the Borrower or any Guarantor (upon voluntary liquidation or otherwise);
(d) any Disposition otherwise permitted pursuant to Section 7.5 may be
completed; and
(e) any Permitted Acquisition otherwise permitted pursuant to Section 7.7 may
be completed.
7.5.
Disposition of Property
. Dispose of any of its property, whether now owned or hereafter acquired, or, in the case of
any Subsidiary, issue or sell any shares of such Subsidiarys Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property or property no longer
useful in the business of the Borrower and its Subsidiaries, in each case in the
ordinary course of business;
(b) the Disposition of inventory or Cash Equivalents in the ordinary course of
business;
(c) Dispositions permitted by Section 7.4(c), Restricted Payments permitted by
Section 7.6 and Investments permitted by Section 7.7;
55
(d) the Disposition or issuance of any Subsidiarys Capital Stock to the
Borrower or any Guarantor;
(e) the licensing and cross-licensing arrangements of technology or other
intellectual property in the ordinary course of business;
(f) the Disposition of any property or assets (i) to any Loan Party and (ii) by
any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan
Party;
(g) transfers of property as a result of any Recovery Event;
(h) leases, occupancy agreements and subleases of property in the ordinary
course of business;
(i) the Disposition by the Borrower and certain of its Subsidiaries of account
receivables of General Motors Corporation, Chrysler LLC and their affiliates and
customary related property to special purpose vehicles established by General Motors
Corporation and Chrysler LLC pursuant to the United States Department of the
Treasurys Auto Supplier Support Programs;
(j) the Disposition of receivables and customary related assets (i) in
connection with a Receivables Financing Transaction or (ii) pursuant to factoring
programs on customary market terms for such transactions and with respect to
receivables of, and generated by, Group Members that are not Loan Parties;
(k) the Disposition for fair market value of certain assets in Sweden related
to the transfer of certain programs to a competitor as previously disclosed to the
Administrative Agent;
(l) the exchange or transfer within China of Chinese Acceptance Notes by
Chinese Subsidiaries of the Borrower; and
(m) the Disposition of other property (other than receivables and customary
related assets) having a fair market value not to exceed 5% of Consolidated Total
Tangible Assets in the aggregate during any fiscal year of the Borrower;
provided
that the Net Cash Proceeds thereof are applied to prepay the First
Lien Loans and cash collateralize any letters of credit outstanding under the First
Lien Credit Agreement and any outstanding First Lien Specified Letters of Credit, in
each case to the extent required by the First Lien Credit Agreement and the
documentation for the First Lien Specified Letters of Credit, and after such
payments have been made in full, to repay the Loans in accordance with Section
2.9(b).
7.6.
Restricted Payments
. Declare or pay any dividend (other than dividends payable solely in common stock of the
Person making such dividend) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any Capital Stock of the Borrower or any Subsidiary of the Borrower, whether now or
hereafter outstanding, or make any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary of the
Borrower (collectively, Restricted Payments), except that (a) any Subsidiary may make Restricted
Payments to any Loan Party, (b) any Subsidiary may make Restricted Payments to the Group Member
that is its parent company so long as, in the case of any Restricted Payment made by a Loan Party,
such
56
parent company is also a Loan Party, (c) any Subsidiary may make Restricted Payments with
respect to the Capital Stock of such Subsidiary, provided that each Group Member shareholder of
such Subsidiary receives at least its ratable share thereof, (d) in accordance with the excess
cash paydown provisions contemplated by the Plan of Reorganization, the Borrower may make payments
with respect to the Series A Preferred Stock in an aggregate amount not to exceed $50,000,000 and
(e) the Borrower may pay cash in lieu of fractional shares in connection with any conversion of
Series A Preferred Stock or warrants in accordance with its terms,
provided
that the
aggregate amount of cash payments under this clause (e) shall not exceed $100,000 in any fiscal
quarter of the Borrower. Notwithstanding the foregoing, the cashless exercise of stock options
granted pursuant to any employee benefit plan shall not be construed as a Restricted Payment.
7.7.
Investments
. Make any Investment except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to employees or directors of any Group Member in the
ordinary course of business (including for travel, entertainment and relocation
expenses);
(e) Investments in the business of the Borrower and its Subsidiaries made by
the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment
Deferred Amount;
(f) intercompany Investments by (i) any Group Member in the Borrower or any
Person that, prior to such investment, is a Guarantor, (ii) by any Subsidiary that
is not a Loan Party in any other Subsidiary that is not a Loan Party, (iii) by any
Loan Party in a Foreign Subsidiary to fund in the ordinary course of business
foreign operations and (iv) by any Loan Party in any Subsidiary that is not a Loan
Party,
provided
that the aggregate amount of Investments under clause (iv)
in Subsidiaries that are organized under the laws of a Specified Jurisdiction shall
not exceed $250,000,000 at any one time outstanding in the aggregate plus, without
duplication, all cash returns of principal or capital, cash dividends and other cash
returns received by any Loan Party after the date hereof from any Subsidiary that is
organized under the laws of a Specified Jurisdiction;
(g) Investments consisting of Indebtedness permitted by Section 7.2;
(h) prepaid expenses and lease, utility, workers, compensation, performance and
other similar deposits made in the ordinary course of business;
(i) Investments (including debt obligations) received in the ordinary course of
business by the Borrower or any Subsidiary in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement or delinquent
obligations of, and other disputes with, customers and suppliers arising out of the
ordinary course of business;
(j) Investments in existence on the Closing Date;
57
(k) Investments in Greenfield Holdings, LLC and Integrated Manufacturing and
Assembly L.L.C. to the extent that such Investments are made in the ordinary course
of a Loan Partys business, for cash management purposes and not exceeding
$50,000,000 at any one time outstanding
plus
, without duplication, all cash
returns of principal or capital, cash dividends and other cash returns received by
any Loan Party after the date hereof from Greenfield Holdings, LLC or Integrated
Manufacturing and Assembly L.L.C.;
(l) the Disposition or contribution by the Borrower and certain of its domestic
Subsidiaries of certain metals and electronics assets to its existing Subsidiaries
consistent with the restructuring plan including in the financial projections; and
(m) Swap Agreements permitted by Section 7.9;
(n) Investments in Special Purpose Subsidiaries arising or made under
Receivable Financing Transactions;
(o) Permitted Acquisitions; and
(p) in addition to Investments otherwise expressly permitted by this Section,
Investments by the Borrower or any of its Subsidiaries in an aggregate amount not to
exceed $200,000,000 at any one time outstanding.
7.8.
Transactions with Affiliates
. Enter into any transaction, including any purchase, sale, lease or exchange of property,
the rendering of any service or the payment of any management, advisory or similar fees, with any
Affiliate (other than transactions among Group Members) unless such transaction (a) is
otherwise permitted under this Agreement, (b) is in the ordinary course of business of the relevant
Groups Member, upon fair and reasonable terms no less favorable to the relevant Group Member than
it would obtain in a comparable arms length transaction with a Person that is not an Affiliate; or
(c) involves any Lender or Agent (or their Affiliates) in its capacity as Lender or Agent under
this Agreement.
7.9.
Swap Agreements
. Enter into any Swap Agreement except (a) Swap Agreements entered into to hedge or mitigate
risks to which any Group Member has actual exposure (other than those in respect of Capital Stock
of any Person) and (b) Swap Agreements entered into in order to effectively cap, collar or exchange
interest rates (from fixed to floating rates, from one floating rate to another floating rate or
otherwise) with respect to any interest-bearing liability or investments of any Group Member,
provided that in each case such agreements are not entered into for speculative purposes.
7.10.
Changes in Fiscal Periods
. Permit the fiscal year of the Borrower to end on a day other than December 31.
7.11.
Negative Pledge Clauses
. Enter into or permit to exist or become effective any agreement that prohibits or limits
(other than a dollar limit, provided that such dollar limit is sufficient in amount to allow at all
times the Liens to secure the obligations under the Loan Documents in full) the ability of any Loan
Party to create, incur, assume or suffer to exist any Lien upon any of its property or revenues,
whether now owned or hereafter acquired, to secure its obligations under the Loan Documents to
which it is a party other than (a) this Agreement and the other Loan Documents, (b) any agreements
governing any purchase money Liens or Capital Lease Obligations otherwise permitted hereby or any
other secured obligation (other than Indebtedness for borrowed money) permitted by Section 7.3(c),
(d), (t), (w) or (y) (in which case, any prohibition or limitation shall only be effective against
(x) in the case of
58
purchase money Liens or Capital Lease Obligations, the assets financed thereby
and proceeds thereof and (y) in the case of other secured obligations, the specific assets subject
to the Lien securing such obligation), (c) the First Lien Loan Documents, any agreement governing
any Indebtedness existing as of the Closing Date and any agreement governing any Permitted
Refinancing Indebtedness of such Indebtedness existing as of the Closing Date (provided that the
prohibition or limitation contained therein is no less favorable to the Lenders than that which
exists in the agreement governing such Indebtedness as of the Closing Date), (d) customary
provisions in joint venture agreements and similar agreements that restrict the transfer of assets
of, or equity interests in, joint ventures, (e) customary provisions in any agreements governing
any Receivable Financing Transaction (in which case, any prohibition or limitation shall only be
effective against the assets conveyed thereunder), (f) any agreement which, prior to the First
Priority Obligations Payment Date governs First Lien Specified Letters of Credit or any First Lien
Specified Swap Agreement containing provisions not more restrictive than the provisions of the
First Lien Credit Agreement at the time such agreements were entered into, (g) any agreement
governing Specified Letters of Credit or any Specified Swap Agreement containing provisions not
more restrictive than the provisions of this Agreement and (h) licenses or sublicenses by the
Borrower and its Subsidiaries of intellectual property in the ordinary course of business (in
which case, any prohibition or limitation shall only be effective against the intellectual property
subject thereto).
7.12.
Clauses Restricting Subsidiary Distributions
. Enter into or permit to exist or become effective any consensual encumbrance or restriction
on the ability of any Subsidiary of the Borrower to (a) make Restricted Payments in respect of any
Capital Stock of such Subsidiary held by, or pay any Indebtedness owed to, the Borrower or any
other Loan Party, (b) make loans or advances to, or other Investments in, the Borrower or any other
Loan Party or (c) transfer any of its assets to the Borrower or any other Loan Party, except for
such encumbrances or restrictions existing under or by reason of (i) any restrictions existing
under the Loan Documents, the First Lien Loan Documents, any agreement governing any Indebtedness
existing as of the Closing Date and any agreement governing any Permitted Refinancing Indebtedness
of such Indebtedness existing as of the Closing Date (provided that the prohibition or limitation
contained therein is no less favorable to the Lenders than that which exists in the agreement
governing such Indebtedness as of the Closing Date), (ii) customary provisions in joint venture
agreements and similar agreements that restrict the transfer of equity interests in joint ventures
(in which case such restrictions shall relate only to assets of, or equity interests in, such joint
venture or any holding company which may hold the Capital Stock of such joint venture), (iii) any
restrictions regarding licenses or sublicenses by the Borrower and its Subsidiaries of intellectual
property in the ordinary course of business (in which case such restriction shall relate only to
such intellectual property); (iv) customary restrictions and conditions contained in agreements
relating to the sale of all or a substantial part of the capital stock or assets of any Subsidiary
pending such sale, provided such restrictions and conditions apply only to the Subsidiary to be
sold and such sale is permitted hereunder, (v) with respect to restrictions described in clause (a)
of this Section 7.12, restrictions contained in agreements governing Indebtedness permitted by
Section 7.2(c) hereof; and (vi) with respect to restrictions described in clause (c) of this
Section 7.12, restrictions contained in agreements governing Indebtedness permitted by Section
7.2(e) (as long as such restrictions apply to the property financed thereby) and (k) hereof (as
long as such restrictions apply only to the assets of the applicable joint venture).
7.13.
Lines of Business
. Enter into any business, either directly or through any Subsidiary, except for those
businesses in which the Borrower and its Subsidiaries are engaged on the date of this Agreement or
that are reasonably related thereto.
7.14.
[Reserved]
.
7.15.
Optional Payments in respect of Certain Debt Instruments
. Make or offer to make any payment, prepayment, repurchase or redemption of or otherwise
defease or segregate funds with
59
respect to any subordinated Indebtedness other than (i) scheduled
payments of principal and interest and (ii) refinancings thereof to the extent permitted by Section
7.2.
7.16.
Sale and Leasebacks
. Enter into any arrangement with any Person providing for the leasing by any Loan Party of
real or personal property that has been or is to be sold or transferred by such Loan Party to such
Person or to any other Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of such Loan Party unless the Net Cash Proceeds
received by such Loan Party have been used to make a prepayment of the Loans to the extent required
by Section 2.9(b) above.
SECTION 8. EVENTS OF DEFAULT
8.1.
Events of Default
. If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan when due in
accordance with the terms hereof; or the Borrower shall fail to pay any interest on
any Loan, or any other amount payable hereunder or under any other Loan Document,
within three Business Days after any such interest or other amount becomes due in
accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan Party herein
or in any other Loan Document or that is contained in any certificate, document or
financial or other statement furnished by it at any time under or in connection with
this Agreement or any such other Loan Document shall prove to have been inaccurate
in any material respect on or as of the date made or deemed made; or
(c) any Loan Party shall default in the observance or performance of any
agreement contained in clause (i) of Section 6.4(a) (with respect to the Borrower
only), Section 6.7(a) or Section 7 of this Agreement or Section 5.5 of the Guarantee
and Collateral Agreement; or
(d) any Loan Party shall default in the observance or performance of any other
agreement contained in this Agreement or any other Loan Document (other than as
provided in paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent or the Required Lenders to the Borrower; or
(e) any Group Member (other than an Immaterial Subsidiary) shall (i) default in
making any payment of any principal of any Indebtedness (including any Guarantee
Obligation, but excluding the Loans) on the scheduled or original due date with
respect thereto; or (ii) default in making any payment of any interest on any such
Indebtedness beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created; or (iii) default in the
observance or performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect of
which default or other event or condition is to cause, or to permit the holder or
beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or (in the case of any such Indebtedness
constituting a Guarantee Obligation) to become payable;
provided
that a
default, event or condition under the First Lien Credit Agreement shall
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cause an
Event of Default under this clause (iii) only if such default, event or condition
results in Indebtedness under the First Lien Credit Agreement becoming due prior to
its stated maturity; and
provided
f
urther
, that a default, event or
condition described in clause (i), (ii) or (iii) of this paragraph (e) shall not at
any time constitute an Event of Default unless, at such time, one or more defaults,
events or conditions of the type described in clauses (i), (ii) and (iii) of this
paragraph (e) shall have occurred and be continuing with respect to Indebtedness the
outstanding principal amount (or the termination value, as applicable) of which
exceeds in the aggregate $35,000,000; or
(f) (i) the Borrower or any of its Subsidiaries (other than 3% Subsidiaries)
shall commence any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets; or (ii) there shall be
commenced against the Borrower or any of its Subsidiaries (other than 3%
Subsidiaries) any case, proceeding or other action of a nature referred to in clause
(i) above that (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed or undischarged for a period
of 60 days; or (iii) there shall be commenced against the Borrower or any of its
Subsidiaries (other than 3% Subsidiaries) any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets that results in the entry of an
order for any such relief that shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv) the Board of
Directors of the Borrower shall authorize any action set forth in clause (i) above;
or (v) the Borrower or any of its Subsidiaries (other than 3% Subsidiaries) shall
generally not, or shall be unable to, or shall admit in writing its inability to,
pay its debts as they become due; or (vi) or the Borrower or any of its Subsidiaries
(other than 3% Subsidiaries) shall make a general assignment for the benefit of its
creditors;
provided
that all 3% Subsidiaries that are subject to any of the
proceedings or actions described in clauses (i) through (vi) of this paragraph (f)
shall not at any time contribute in the aggregate more than 5% of Consolidated
Assets or more than 5% of Consolidated Revenues; or
(g) (i) an ERISA Event shall have occurred; (ii) a trustee shall be appointed
by a United States district court to administer any Single Employer Plan, (iii) the
PBGC shall institute proceedings to terminate any Single Employer Plan(s); (iv) any
Loan Party or any of their respective ERISA Affiliates shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred or will be assessed
Withdrawal Liability to such Multiemployer Plan and such entity does not have
reasonable grounds for contesting such Withdrawal Liability or is not contesting
such Withdrawal Liability in a timely and appropriate manner; or (v) any other event
or condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (v) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a Material
Adverse Effect; or
(h) one or more judgments or decrees shall be entered against any Group Member
involving in the aggregate a liability (excluding any amounts paid or covered by
insurance as to which the relevant insurance company has not denied coverage) of
61
$35,000,000 or more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry thereof;
or
(i) any of the Loan Documents shall cease, for any reason, to be in full force
and effect, or any Loan Party or any Affiliate of any Loan Party shall so assert, or
any Liens created by any Loan Documents shall cease to be enforceable and of the
same effect and priority purported to be created thereby other than by reason of the
release thereof in accordance with the terms of the Loan Documents; or
(j) a Change of Control shall have occurred;
then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or
(ii) of paragraph (f) above with respect to the Borrower, automatically the Loans (with accrued
interest thereon) and all other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all amounts to be paid pursuant to Section 2.6) shall immediately
become due and payable, and (B) if such event is any other Event of Default, with the consent of
the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders,
the Administrative Agent shall, by notice to the Borrower, declare the Loans (with accrued interest
thereon) and all other amounts owing under this Agreement and the other Loan Documents to be due
and payable forthwith, whereupon the same shall immediately become due and payable. Except as
expressly provided above in this Section, presentment, demand, protest and all other notices of any
kind are hereby expressly waived by the Borrower.
SECTION 9. THE AGENTS
9.1.
Appointment
. Each Lender hereby irrevocably designates and appoints the Administrative Agent as the
agent and the Collateral Agent as the collateral agent of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes each of the Administrative Agent
and the Collateral Agent, in its capacity as such, to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent and Collateral Agent, as
applicable, by the terms of this Agreement and the other Loan Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent and the Collateral Agent shall not have any
duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against
the Administrative Agent or the Collateral Agent, as applicable.
9.2.
Delegation of Duties
. Each of the Administrative Agent and the Collateral Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such duties. Neither
Agent shall be responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care. The exculpatory provisions of this Agreement and of the other
Loan Documents shall apply to any such agent or attorney-in-fact and to their Related Parties (as
defined below).
9.3.
Exculpatory Provisions
. Neither any Agent nor any of its officers, directors, employees, agents, advisors,
attorneys-in-fact, controlling persons or affiliates (collectively, the Related Parties) shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except to the extent that any of the
62
foregoing are found by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from its or such Persons own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements, representations or
warranties made by any Loan Party or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agents under or in
connection with, this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party a party thereto to perform its obligations hereunder
or thereunder. The Agents shall not be under any obligation to any Lender to ascertain or to
inquire as to the observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties, books or records of
any Loan Party.
9.4.
Reliance by Agents
. The Agents and their Related Parties shall be entitled to rely, and shall be fully
protected in relying, upon any instrument, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, facsimile or email message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel (including counsel to the
Borrower), independent accountants and other experts selected by the Agents. The Agents and their
Related Parties may deem and treat the payee of any Note as the owner thereof for all purposes
unless a written notice of assignment, negotiation or transfer thereof shall have been filed with
the Administrative Agent. The Agents and their Related Parties shall be fully justified in failing
or refusing to take any action under this Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders (or, if so specified by this
Agreement, all Lenders or any other instructing group of Lenders specified by this Agreement) as it
deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any
and all liability and expense that may be incurred by it by reason of taking or continuing to take
any such action. The Agents and their Related Parties shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders (or, if so specified by this Agreement, all
Lenders or any other instructing group of Lenders specified by this Agreement), and such request
and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and
all future holders of the Loans.
9.5.
Notice of Default
. No Agent shall be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default unless such Agent has received notice from a Lender or the Borrower referring to
this Agreement, describing such Default or Event of Default and stating that such notice is a
notice of default. In the event that an Agent receives such a notice, such Agent shall give
notice thereof to the Lenders. The Agents shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by
this Agreement, all Lenders or any other instructing group of Lenders specified by this Agreement);
provided that unless and until the Agents shall have received such directions, the Agents may (but
shall not be obligated to) take such action, or refrain from taking such action, with respect to
such Default or Event of Default as they shall deem advisable in the best interests of the Lenders.
9.6.
Non-Reliance on Agents and Other Lenders
. Each Lender expressly acknowledges that neither the Agents nor any of their Related Parties
have made any representations or warranties to it and that no act by the any Agent hereafter taken,
including any review of the affairs of a Loan Party or any affiliate of a Loan Party, shall be
deemed to constitute any representation or warranty by any Agent to any Lender. Each Lender
represents to the Agents that it has, independently and without reliance upon any Agent or any
other Lender, and based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property, financial and other
condition and creditworthiness of
the Loan Parties and their affiliates and made its own decision
63
to make its Loans hereunder
and enter into this Agreement. Each Lender also represents that it will, independently and without
reliance upon any Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement and the other Loan Documents, and to
make such investigation as it deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of the Loan Parties and their
affiliates. Except for notices, reports and other documents expressly required to be furnished to
the Lenders by the Agents hereunder, the Agents shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or
any affiliate of a Loan Party that may come into the possession of the Agents or any of its
officers, directors, employees, agents, advisors, attorneys-in-fact or affiliates.
9.7.
Indemnification
. The Lenders agree to indemnify each Agent and its Related Parties (each, an Agent
Indemnitee) (to the extent not reimbursed by the Borrower and without limiting the obligation of
the Borrower to do so), ratably according to their respective Outstanding Percentages in effect on
the date on which indemnification is sought under this Section (or, if indemnification is sought
after the date upon which the Loans shall have been paid in full, ratably in accordance with such
Outstanding Percentages immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind (including reasonable attorneys fees and expenses) whatsoever that may at
any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted
against such Agent Indemnitee in any way relating to or arising out of, the Loans, this Agreement,
any of the other Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent
Indemnitee under or in connection with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements that are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted from such Agent
Indemnitees gross negligence or willful misconduct. The agreements in this Section shall survive
the payment of the Loans and all other amounts payable hereunder.
9.8.
Agent in Its Individual Capacity
. Each Agent and its affiliates may make loans to, accept deposits from and generally engage
in any kind of business with any Loan Party as though such Agent were not an Agent. With respect
to its Loans made or renewed by it, each Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same as though it were
not an Agent, and the terms Lender and Lenders shall include each Agent in its individual
capacity.
9.9.
Successor Administrative Agent
. The Administrative Agent may resign as Administrative Agent upon 10 days notice to the
Lenders and the Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term Administrative Agent shall
mean such successor agent effective upon such appointment and approval, and the former
Administrative Agents rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment as Administrative Agent
by the date that is 10 days following a retiring Administrative Agents notice of resignation, the
retiring Administrative Agents resignation shall nevertheless thereupon become effective and the
resigning Administrative Agents rights, powers and duties as Administrative Agent shall be
terminated, without any other or further act or deed on the part of such resigning
64
Administrative Agent or any of
the parties to this Agreement or any
holders of the Loans, and the Lenders shall
assume and perform all of the duties of the Administrative Agent hereunder until such time, if any,
as the Required Lenders appoint a successor agent as provided for above. After any retiring
Administrative Agents resignation as Administrative Agent, the provisions of this Section 9 and of
Section 10.5 shall continue to inure to its benefit. The Administrative Agent may in its
discretion resign as Collateral Agent at any time it resigns as Administrative Agent.
9.10.
Execution of Loan Documents
. Pursuant to the Plan of Reorganization, the Agents, on behalf of the Lenders, are empowered
and authorized to execute and deliver to the Loan Parties the other Loan Documents and all related
agreements, certificates, documents, or instruments as shall be necessary or appropriate to effect
the purposes of the Loan Documents. Each Lender agrees that any action taken by the Agents or the
Required Lenders (or any other instructing group of Lenders specified by this Agreement) in
accordance with the terms of this Agreement or the other Loan Documents, and the exercise by the
Agents or the Required Lenders (or any other instructing group of Lenders specified by this
Agreement) of their respective powers set forth therein or herein, together with such other powers
that are reasonably incidental thereto, shall be binding upon all of the Lenders.
9.11.
Collateral Agent
. (a) The provisions of Section 9 that apply to the Administrative Agent shall apply,
mutatis mutandis, to the Collateral Agent and to any successor Collateral Agent, as applicable;
provided that, notwithstanding anything herein to the contrary, the Collateral Agent shall have the
right to appoint a successor to itself as Collateral Agent and without the consent of any Lender.
(b) The Collateral Agent is authorized on behalf of all the Lenders, without the necessity of
any notice to or further consent from the Lenders, from time to time to take any action with
respect to any Collateral or the Loan Documents which may be necessary to perfect and maintain a
perfected security interest in and Liens upon the Collateral granted pursuant to the Loan
Documents. Except for the safe custody of any Collateral in its possession and the accounting for
moneys actually received by it hereunder or under any of the other Loan Documents, the Collateral
Agent shall not have any duty as to any Collateral, as to ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, trades or other matters relative to any
Collateral, whether or not the Collateral Agent is deemed to have knowledge of such matters, or as
to taking of any necessary steps to preserve rights against any parties or any other rights
pertaining to any Collateral (including the filing of UCC Financing and Continuation Statements).
The Collateral Agent shall be deemed to have exercised appropriate and due care in the custody and
preservation of any Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which other collateral agents accord similar property.
(c) Each of the Administrative Agent and the Collateral Agent, in its capacity as an agent
under the Intercreditor Agreement, shall be entitled to all right, privileges, protections,
immunities, benefits and indemnities provided to the Administrative Agent under this Section 9.
SECTION 10. MISCELLANEOUS
10.1.
Amendments and Waivers
. (a) Neither this Agreement, any other Loan Document, nor any terms hereof or thereof may
be amended, supplemented or modified except in accordance with the provisions of this Section 10.1.
The Required Lenders and each Loan Party party to the relevant Loan Document may, or, with the
written consent of the Required Lenders, the Administrative Agent and each Loan Party party to the
relevant Loan Document may, from time to time, (a) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of adding any provisions to
this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or
of the Loan Parties hereunder or thereunder or (b) waive, on such
65
terms and conditions as the
Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of this Agreement or the other Loan Documents or any Default or Event of
Default and its consequences;
provided
,
however
, that no such waiver and no such
amendment, supplement or modification shall (i) forgive the principal amount or extend the final
scheduled date of maturity of any Loan, extend the scheduled date of any principal amortization
payment in respect of any Loan, reduce the stated rate of any interest or fee payable hereunder
(except (x) in connection with the waiver of applicability of any post-default increase in interest
rates (which waiver shall be effective with the consent of the Required Lenders), (y) in connection
with the waiver or extension of any mandatory prepayment hereunder, and (z) that any amendment or
modification of defined terms used in the financial covenants in this Agreement shall not
constitute a reduction in the rate of interest or fees for purposes of this clause (i)) or extend
the scheduled date of any payment thereof, in each case without the written consent of each Lender
directly affected thereby; (ii) eliminate or reduce the voting rights of any Lender under this
Section 10.1 without the written consent of such Lender; (iii) reduce any percentage specified in
the definition of Required Lenders or consent to the assignment or transfer by the Borrower of any
of its rights and obligations under this Agreement and the other Loan Documents, in each case
without the written consent of all Lenders; (iv) amend, modify or waive any provision of Section 9
or any other provision of any Loan Document that affects the Administrative Agent without the
written consent of the Administrative Agent; or (v) release all or substantially all of the
Collateral securing the Obligations or release all or substantially all of the Guarantors from
their obligations under the Guarantee and Collateral Agreement, in each case without the consent of
each Lender. Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any waiver, the Loan
Parties, the Lenders and the Administrative Agent shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event of Default waived
shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right consequent thereon.
(b) Notwithstanding the foregoing, the Administrative Agent may amend or supplement the
Intercreditor Agreement and the Security Documents without the consent of any Lender or the
Required Lenders (but with the consent of the Borrower to the extent required under the
Intercreditor Agreement and the Security Documents) to cure any ambiguity, defect or inconsistency
in the Intercreditor Agreement or the Security Documents.
(c) The Borrower shall be permitted to replace any Lender that requests any payment under
Section 2.16 or 2.17(a) or that does not consent to any proposed amendment, supplement,
modification, consent or waiver of any provision of this Agreement or any other Loan Document that
requires the consent of each of the Lenders or each of the Lenders affected thereby (so long as the
consent of the Required Lenders has been obtained), with a replacement financial institution;
provided
that (i) such replacement does not conflict with any Requirement of Law, (ii) the
replacement financial institution
shall purchase, at par, all Loans and other amounts owing to such replaced Lender on or prior
to the date of replacement, (iii) the Borrower shall be liable to such replaced Lender under
Section 2.18 if any Eurodollar Loan owing to such replaced Lender shall be purchased other than on
the last day of the Interest Period relating thereto, (iv) the replacement financial institution
shall be reasonably satisfactory to the Administrative Agent, (v) the replaced Lender shall be
obligated to make such replacement in accordance with the provisions of Section 10.6
(
provided
that the Borrower shall be obligated to pay the processing and recordation fee
referred to therein) and (vi) any such replacement shall not be deemed to be a waiver of any rights
that the Borrower, the Administrative Agent or any other Lender shall have against the replaced
Lender.
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(d) Notwithstanding the foregoing, this Agreement may be amended with the written consent of
the Administrative Agent, the Borrower and the Lenders providing the relevant Replacement Term
Loans (as defined below) to permit the refinancing of all or a portion of the Loans outstanding
hereunder (
Refinanced Terms Loans
) with a replacement term loan tranche hereunder which
shall be Loans hereunder (
Replacement Term Loans
);
provided
that (i) the
aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal
amount of such Refinanced Term Loans, (ii) the weighted average life to maturity of such
Replacement Term Loans shall not be shorter than the weighted average life to maturity of such
Refinanced Term Loans at the time of such refinancing and (iii) all other terms applicable to such
Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders
providing, such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except
to the extent necessary to provide for covenants and other terms applicable to any period after the
latest final maturity of any Loans in effect immediately prior to such refinancing.
10.2.
Notices
. All notices, requests and demands to or upon the respective parties hereto to be effective
shall be in writing (including by telecopy), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when received,
addressed as follows in the case of the Borrower and the Administrative Agent, and as set forth in
an administrative questionnaire delivered to the Administrative Agent in the case of the Lenders,
or to such other address as may be hereafter notified by the respective parties hereto:
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The Borrower:
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Lear Corporation
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21557 Telegraph Road
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Southfield, Michigan 48033
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Attention: Shari L. Burgess
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Telecopy: (248) 447-1593
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Telephone: (248) 447-1580
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Email: sburgess@lear.com
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With copies to:
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Lear Corporation
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21557 Telegraph Road
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Southfield, Michigan 48033
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Attention: Terrence B. Larkin
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Telecopy: (248) 447-5126
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Telephone: (248) 447-5123
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Email: TLarkin@lear.com
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With copies to (which shall not constitute
a notice hereunder):
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Winston & Strawn LLP
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35 West Wacker Drive
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Chicago, IL 60601-9703
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Telecopy: (312) 558-5989
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Telephone: (312) 558-5700
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Email: CBoehrer@winston.com
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Administrative Agent
or Collateral Agent:
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JPMorgan Chase Bank, N.A.
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Attention: Douglas Jenks
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Telecopy: (212) 622-4557
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Telephone: (212) 622-4521
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Email: douglas.jenks@chase.com
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With copies to:
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JPMorgan Chase Bank, N.A.
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Richard Duker
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Telecopy: (212) 270-5100
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Telephone: (212) 270-3057
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Email: richard.duker@jpmorgan.com
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JPMorgan Chase Bank, N.A.
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Attention: Goh Siew Tan
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Telecopy: (212) 622-4556
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Telephone: (212) 622-4575
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Email: gohsiew.tan@jpmorgan.com
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1111 Fannin Street, Floor 10
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Houston, TX 77002
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Attention: Alice Telles
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Telecopy: (713) 750-2938
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Telephone: (713) 750-7941
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Email: alice.h.telles@jpmchase.com
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provided
that any notice, request or demand to or upon the Agents or the Lenders shall not
be effective until received.
Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided
that the foregoing shall not apply to notices pursuant to Section 2 unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it;
provided
that
approval of such procedures may be limited to particular notices or communications.
10.3.
No Waiver; Cumulative Remedies
. No failure to exercise and no delay in exercising, on the part of the Administrative Agent,
the Collateral Agent or any Lender, any right, remedy, power or privilege hereunder or under the
other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
10.4.
Survival of Representations and Warranties
. All representations and warranties made hereunder, in the other Loan Documents and in any
document, certificate or statement delivered pursuant hereto or in connection herewith shall
survive the execution and delivery of this Agreement and the making of the Loans and other
extensions of credit hereunder.
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10.5.
Payment of Expenses and Taxes
. The Borrower agrees (a) to pay or reimburse each Agent for all its reasonable,
out-of-pocket costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement, the other Loan
Documents and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and thereby, including the
reasonable fees and disbursements of counsel and any financial advisor or third party consultants
or appraisers to and each Agent and filing and recording fees and expenses, with statements with
respect to the foregoing to be submitted to the Borrower prior to the Closing Date (in the case of
amounts to be paid on the Closing Date) and from time to time thereafter on such other periodic
basis as each Agent shall deem appropriate, (b) to pay or reimburse each Lender and each Agent for
all its reasonable out-of-pocket costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, including in connection with any work-out,
restructuring, forbearance or other amendment providing relief to the Borrower, the other Loan
Documents and any such other documents related thereto, including the reasonable fees and
disbursements of counsel and any financial advisor or third party consultants or appraisers to each
Agent and the reasonable fees and disbursements of counsel to the several Lenders;
provided
that, in the case of clauses (a) and (b), the Borrower shall not be obligated to so reimburse for
more than one law firm (and, in addition to such law firm, any local counsel engaged in each
relevant jurisdiction by such law firm) as counsel for the Lenders and the Agents, (c) to pay,
indemnify, and hold each Lender and each Agent harmless from, any and all recording and filing
fees, if any, that may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents related thereto, and (d) to pay,
indemnify, and hold each Lender and each Agent and their respective officers, directors, employees,
affiliates, agents, advisors, trustees and controlling persons (each, an Indemnitee) harmless
from and against any and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever arising out of
any litigation, investigation or proceeding with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and any such other
documents and instruments referred to therein, including any of the foregoing relating to the use
of proceeds of the Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of any Group Member or any of the Properties and the
reasonable fees and expenses of legal counsel in connection with claims, actions or
proceedings by any Indemnitee against any Loan Party under any Loan Document (all the foregoing in this clause (d), collectively, the Indemnified Liabilities),
provided
, that
the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified
Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the gross negligence, bad faith
or willful misconduct of such Indemnitee. Without limiting the foregoing, and to the extent
permitted by applicable law, the Borrower agrees not
to assert and to cause its Subsidiaries not to
assert, and hereby waives and agrees to cause its Subsidiaries to waive, all rights for
contribution or any other rights of recovery with respect to all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related
to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee.
All amounts due under this Section 10.5 shall be payable not later than 10 days after a reasonably
detailed written demand therefor. Statements payable by the Borrower pursuant to this Section 10.5
shall be submitted to Shari Burgess (Telecopy No. (248) 447-1593; Telephone No. 248-447-1580; and
Email: sburgess@lear.com), at the address of the Borrower set forth in Section 10.2, or to such
other Person or address as may be hereafter designated by the Borrower in a written notice to the
Administrative Agent. The agreements in this Section 10.5 shall survive repayment of the Loans and
all other amounts payable hereunder.
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10.6.
Successors and Assigns; Participations and Assignments
. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void), (ii) no Lender may assign or otherwise transfer its
rights or obligations hereunder except in accordance with this Section and (iii) no Lender may
assign or otherwise transfer its rights or obligations hereunder to any Loan Party or any of its
Affiliates.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below and subject to
paragraph (a)(iii) above, any Lender may assign to one or more Eligible Assignees (each, an
Assignee
) all or a portion of its rights and obligations under this Agreement (including
all or a portion of the Loans at the time owing to it) with the prior written consent of the
Administrative Agent and the Borrower,
provided
that no consent of the Administrative Agent
or the Borrower shall be required for an assignment of all or any portion of a Loan to a Lender, an
affiliate of a Lender or an Approved Fund and no consent of the Borrower shall be required if an
Event of Default has occurred and is continuing; and
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lenders
Loans, the amount of the Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $1,000,000 unless the
Administrative Agent otherwise consents;
(B) (1) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500 and (2) the assigning Lender shall have paid in full any amounts owing by it to the
Administrative Agent; and
(C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an administrative questionnaire in which the Assignee designates one or more credit
contacts to whom all syndicate-level information (which may contain material non-public
information about the Borrower and its Affiliates and their related parties or their
respective securities) will be made available and who may receive such information in
accordance with the assignees compliance procedures and applicable laws, including Federal
and state securities laws.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below,
from and after the effective date specified in each Assignment and Assumption the Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning
Lenders rights and obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.16, 2.17, 2.18 and
10.5). Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 10.6 shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in
accordance with and to the extent permitted by paragraph (c) of this Section.
70
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Loan Amounts of, and principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the
Register
). The entries in the Register shall
be conclusive, and the Borrower, the Administrative Agent and the Lenders shall treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an Assignee, the Assignees completed administrative questionnaire
(unless the Assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell
participations to one or more banks or other entities (a
Participant
) in all or a portion
of such Lenders rights and obligations under this Agreement (including all or a portion of the
Loans owing to it);
provided
that (A) such Lenders obligations under this Agreement shall
remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (C) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lenders rights and obligations under this Agreement. Any agreement pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole right to enforce
this Agreement and to approve any amendment, modification or waiver of any provision of this
Agreement;
provided
that such agreement may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver that (1) requires
the consent of each Lender directly affected thereby pursuant to the proviso to the second
sentence of Section 10.1 and (2) directly affects such Participant. Subject to paragraph (c)(ii)
of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.16, 2.17 and 2.18 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 10.7(b) as though it were a
Lender,
provided
such Participant shall be subject to Section 10.7(a) as though it were a
Lender.
(ii) A Participant shall not be entitled to receive any greater payment under Section
2.16, 2.17 or 2.18 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrowers prior written consent. Any Participant
that is a Non-U.S. Lender shall not be entitled to the benefits of Section 2.17 unless such
Participant complies with Section 2.17(d).
(iii) In the event that any Lender sells a participation in a Loan, such Lender shall,
acting solely for this purpose as an agent of the Borrower, maintain a register on which it
enters the name and address of all participants in the Loans held by it and the principal
amount (and stated interest thereon) of the portion of the Loan which is the subject of the
participation (the
Participation Register
). A Loan may be participated in whole
or in part only by registration of
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such participation on the Participation Register. Any
transfer of such participation may be effected only by the Registration of such transfer on
the Participation Register. The entries in the Participation Register shall be conclusive
absent manifest error and such Lender shall treat such participants whose name is recorded
in the Participation Register as the owner of such participation for all purposes of this
Agreement, notwithstanding any notice to the contrary. The Participation Register shall be
available for inspection by the Administrative Agent at any reasonable time upon reasonable
prior notice.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest;
provided
that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or Assignee for such Lender as a party hereto.
(e) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue
Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph
(d) above.
(f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it
may have received hereunder to its designating Lender without the consent of the Borrower or the
Administrative Agent and without regard to the limitations set forth in Section 10.6(b) (but with
regard to the requirements set forth in Section 10.6(b)(iv)). Each of the Borrower, each Lender
and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or
join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for
one year and one day after the payment in full of the latest maturing commercial paper note issued
by such Conduit Lender;
provided
, however, that each Lender designating any Conduit Lender
hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost,
damage or expense arising out of its inability to institute such a proceeding against such Conduit
Lender during such period of forbearance.
10.7.
Adjustments; Set-off
. (a) Except to the extent that this Agreement, any other Loan Document or a court order
expressly provides for payments to be allocated to a particular Lender or Lenders (including
assignments made pursuant to Section 10.6), if any Lender (a Benefited Lender) shall, at any time
after the Loans and other amounts payable hereunder shall immediately become due and payable
pursuant to Section 8, receive any payment of all or part of the Obligations owing to it, or
receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, or
otherwise), in a greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of the Obligations owing to such other Lender, such Benefited Lender
shall purchase for cash from the other Lenders a participating interest in such portion of the
Obligations owing to each such other Lender, or shall provide such other Lenders with the benefits
of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess
payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if
all or any portion of such excess payment or benefits is thereafter recovered from such Benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, but subject to the
Intercreditor Agreement, each Lender shall have the right, without prior notice to the Borrower or
the Guarantors, any such notice being expressly waived by the Borrower and the Guarantors to the
extent permitted by applicable law, upon any Obligations becoming due and payable by the Borrower
or the Guarantors hereunder (whether at the stated maturity, by acceleration or otherwise), to
72
set
off and appropriate and apply against such Obligations any and all deposits (general or special,
time or demand, provisional or final but not any trust or fiduciary account), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of the Borrower or the Guarantors,
as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative
Agent after any such setoff and application made by such Lender,
provided
that the failure
to give such notice shall not affect the validity of such setoff and application.
10.8.
Counterparts
. This Agreement may be executed by one or more of the parties to this Agreement on any
number of separate counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument; provided that, pursuant to the Plan of Reorganization, the
Lenders are automatically made parties to this Agreement without executing this Agreement.
Delivery of an executed signature page of this Agreement by email or facsimile transmission shall
be effective as delivery of a manually executed counterpart hereof. A set of the copies of this
Agreement signed by the Borrower and the Agents shall be lodged with the Borrower and the
Administrative Agent.
10.9.
Severability
. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
10.10.
Integration
. The Plan of Reorganization, this Agreement and the other Loan Documents represent the
entire agreement of the Loan Parties, the Administrative Agent, the Collateral Agent and the
Lenders with respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent, the Collateral Agent, or
any Lender relative to the subject matter hereof not expressly set forth or referred to herein or
in the other Loan Documents.
10.11.
GOVERNING LAW
. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12.
Submission To Jurisdiction; Waivers
. Each Loan Party hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement and the other Loan Documents to which it is a party, or
for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of (i) any State or Federal court of competent
jurisdiction sitting in New York County, New York; and (ii) appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought in such courts
and waives any objection that it may now or hereafter have to the venue of any such
action or proceeding in any such court or that such action or proceeding was brought
in an inconvenient court and agrees not to plead or claim the same;
73
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Loan Party at its
address set forth in Section 10.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to sue in any
other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have
to claim or recover in any legal action or proceeding referred to in this Section
any special, exemplary, punitive or consequential damages.
10.13.
Acknowledgements
. Each Loan Party hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery
of this Agreement and the other Loan Documents;
(b) none of the Administrative Agent, the Collateral Agent nor any Lender has
any fiduciary relationship with or duty to any Loan Party arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship
between Administrative Agent, the Collateral Agent and Lenders, on one hand,
and the Loan Parties, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby among the Lenders
or among the Loan Parties and the Lenders.
10.14.
Releases of Guarantees and Liens
. (a)Notwithstanding anything to the contrary contained herein or in any other Loan Document,
each of the Administrative Agent and the Collateral Agent is hereby irrevocably authorized by each
Lender (without requirement of notice to or consent of any Lender except as expressly required by
Section 10.1) to take any action requested by the Borrower having the effect of releasing, or
subordinating any Lien on, any Collateral or guarantee obligations (i) to the extent necessary to
permit consummation of any transaction not prohibited by any Loan Document or that has been
consented to in accordance with Section 10.1 or (ii) under the circumstances described in paragraph
(b) below.
(b) At such time as the Loans and the other obligations under the Loan Documents (other than
obligations under or in respect of Specified Letters of Credit and Specified Swap Agreements and
any contingent indemnification obligations) shall have been paid in full, the Collateral shall be
released from the Liens created by the Loan Documents, and all obligations related thereto (other
than those expressly stated to survive such termination) of the Administrative Agent, the
Collateral Agent and each Loan Party shall terminate, all without delivery of any instrument or
performance of any act by any Person.
10.15.
Confidentiality
. Each of the Administrative Agent and each Lender agrees to keep confidential all non-public
information provided to it by any Loan Party, the Administrative Agent or any Lender pursuant to or
in connection with this Agreement that is designated by the provider thereof as confidential;
provided that nothing herein shall prevent the Administrative Agent or any Lender from
74
disclosing
any such information (a) to the Administrative Agent, any other Lender or any affiliate thereof,
(b) subject to an agreement to comply with the provisions of this Section, to any actual or
prospective Transferee or any direct or indirect counterparty to any Swap Agreement (or any
professional advisors to such counterparty), (c) to its employees, officers, directors, agents,
attorneys, accountants and other professional advisors or those of any of its affiliates, provided
that such Persons have been advised of the confidentiality provisions hereof and are subject
thereto, (d) upon the request or demand of any Governmental Authority, (e) in response to any order
of any court or other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection with any litigation or
similar proceeding, (g) that has been publicly disclosed, (h) to the National Association of
Insurance Commissioners or any similar organization or any nationally recognized rating agency that
requires access to information about a Lenders investment portfolio in connection with ratings
issued with respect to such Lender, or (i) in connection with the exercise of any remedy hereunder
or under any other Loan Document.
Each Lender acknowledges that information furnished to it pursuant to this Agreement or the
other Loan Documents may include material non-public information concerning the Borrower and its
Affiliates and their related parties or their respective securities, and confirms that it has
developed compliance procedures regarding the use of material non-public information and that it
will handle such
material non-public information in accordance with those procedures and applicable law,
including Federal and state securities laws.
All information, including requests for waivers and amendments, furnished by the Borrower or
the Administrative Agent pursuant to, or in the course of administering, this Agreement or the
other Loan Documents will be syndicate-level information, which may contain material non-public
information about the Borrower and its Affiliates and their related parties or their respective
securities. Accordingly, each Lender represents to the Borrower and the Administrative Agent that
it has identified in its administrative questionnaire a credit contact who may receive information
that may contain material non-public information in accordance with its compliance procedures and
applicable law, including Federal and state securities laws.
10.16.
WAIVERS OF JURY TRIAL
. THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.17.
USA Patriot Act
. Each Lender hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the Patriot Act),
it is required to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information that will allow
such Lender to identify the Borrower in accordance with the Patriot Act.
[
Remainder of page intentionally left blank]
75
IN WITNESS WHEREOF, the Borrower and the Agents have caused this Agreement to be duly executed
and delivered by their proper and duly authorized officers as of the day and year first above
written.
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LEAR CORPORATION
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By:
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/s/
Matthew J. Simoncini
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Name:
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Matthew J. Simoncini
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Title:
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Senior Vice President and
Chief Financial Officer
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JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent
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By:
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/s/
Richard W. Duker
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Name:
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Richard W. Duker
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Title:
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Managing Director
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2
Annex III
Conditions Precedent to Permitted Acquisitions
(1) The Administrative Agent shall receive not less than ten Business Days prior written
notice of such Acquisition, which notice shall include a reasonably detailed description of the
proposed terms of such Acquisition and identify the anticipated closing date thereof;
(2) concurrently with such Acquisition, the Borrower shall comply, and shall cause the Target
to the extent applicable to comply, with the provisions of Section 6.9 of the Credit Agreement;
(3) after giving effect to such Acquisition and the incurrence of any Indebtedness in
connection therewith, (a) no Default or Event of Default shall exist, and (b) the Borrower shall be
in compliance on a pro forma basis with the covenants set forth in Section 7.1 recomputed for the
most recently ended fiscal quarter of the Borrower for which information is available regarding the
business being acquired;
(4) all material consents necessary for such Acquisition have been acquired and such
Acquisition shall have been approved by the applicable Targets board of directors or similar
governing body;
(5) the applicable Target shall be engaged in substantially the same type of business as the
Borrower and its Subsidiaries or a reasonable extension thereof;
(6) the aggregate consideration (including all (i) cash and other property (other than common
stock of the Borrower), (ii) Earn-Outs, (iii) Seller Debt and (iv) any other Indebtedness that is
assumed or acquired by the Borrower of any of its Subsidiaries in connection with the Acquisition)
paid in connection with all Acquisitions shall not exceed $400,000,000.
3
Exhibit 10.2
LEAR CORPORATION
2009 LONG-TERM STOCK INCENTIVE PLAN
LEAR CORPORATION
2009 LONG-TERM STOCK INCENTIVE PLAN
TABLE OF CONTENTS
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Page
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Article 1. Establishment, Objectives and Duration
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1
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Article 2. Definitions
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1
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Article 3. Administration
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8
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Article 4. Shares Subject to the Plan and Maximum Awards
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8
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Article 5. Eligibility and Participation
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10
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Article 6. Stock Options
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10
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Article 7. Stock Appreciation Rights
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12
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Article 8. Restricted Stock, Restricted Stock Units and Restricted Units
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13
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Article 9. Performance Units, Performance Shares and Other Awards
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15
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Article 10. Performance Measures
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17
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Article 11. Beneficiary Designation
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18
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Article 12. Deferrals
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19
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Article 13. Rights of Employees
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19
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Article 14. Change in Control
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19
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Article 15. Amendment, Modification and Termination
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21
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Article 16. Withholding
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23
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Article 17. Indemnification
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23
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Article 18. Successors
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24
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Article 19. Legal Construction
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24
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Annex A RSU Terms and Conditions
Annex B Stock-Settled SAR Terms and Conditions
Annex C Cash-Settled SAR Terms and Conditions
Annex D Stock Option Terms and Conditions
-i-
LEAR CORPORATION
2009 LONG-TERM STOCK INCENTIVE PLAN
Article 1. Establishment, Objectives and Duration
1.1 Establishment of the Plan.
Lear Corporation, a Delaware corporation, hereby establishes
its long-term stock incentive compensation plan, to be known as the 2009 Lear Corporation
Long-Term Stock Incentive Plan as set forth in this document. Capitalized terms used but not
otherwise defined herein will have the meanings given to them in Article 2. The Plan permits the
grant of Nonqualified Stock Options, Incentive Stock Options, Stock Appreciation Rights, Restricted
Stock, Restricted Units, Restricted Stock Units, Performance Shares, Performance Units and other
cash and equity incentive awards.
The Plan is effective as of November 9, 2009, and will remain in effect as provided in Section
1.3 hereof.
1.2 Objectives of the Plan.
The objectives of the Plan are to optimize the profitability and
growth of the Company through long-term incentives that are consistent with the Companys
objectives and that link the interests of Participants to those of the Companys shareholders; to
provide Participants with an incentive for excellence in individual performance; to promote
teamwork among Participants; and to give the Company a significant advantage in attracting and
retaining officers, key employees and directors.
The Plan is further intended to provide flexibility to the Company in its ability to motivate,
attract and retain the services of Participants who make significant contributions to the Companys
success, and to allow Participants to share in the success of the Company.
1.3 Duration of the Plan.
The Plan will commence on the Effective Date, as defined in Article
2, and will remain in effect, subject to the right of the Committee to amend or terminate the Plan
at any time pursuant to Article 15, until all Shares subject to it pursuant to Article 4 have been
issued or transferred according to the Plans provisions. In no event may an Award be granted
under the Plan on or after the ten year anniversary of the Effective Date.
Article 2. Definitions
Whenever used in the Plan, the following terms have the meanings set forth below, and when the
meaning is intended, the initial letter of the word is capitalized:
-1-
Affiliates
means any corporation (or partnership, limited liability company, joint venture,
or other enterprise) of which the Company owns or controls, directly or indirectly, at least fifty
percent of the outstanding shares of stock normally entitled to vote for the election of directors
(or comparable equity participation and voting power). Notwithstanding the foregoing, for purposes
of determining whether an employee has terminated employment with the Company and all Affiliates,
Affiliates means any corporation (or partnership, limited liability company, joint venture, or
other enterprise) of which the Company owns or controls, directly or indirectly, at least ten
percent of the outstanding shares of stock normally entitled to vote for the election of directors
(or comparable equity participation and voting power). The minimum percentage of ownership or
control in the previous sentence shall be raised from ten percent to twenty percent for purposes of
determining timing of payment of an Award, or amount payable with respect to an Award, that is
deferred compensation for purposes of Code Section 409A, if payment of such Award or amount would
be accelerated or otherwise triggered by the employees termination of employment.
Award
means, individually or collectively, a grant under this Plan to a Participant of
Nonqualified Stock Options, Incentive Stock Options, Stock Appreciation Rights, Restricted Stock,
Restricted Units, Restricted Stock Units, Performance Shares, Performance Units or other types of
equity-based or cash-based incentives hereafter approved by the Committee.
Award Agreement
means an agreement entered into by the Company and a Participant setting
forth the terms and provisions applicable to an Award or Awards granted to the Participant.
Beneficial Owner
or
Beneficial Ownership
has the meaning ascribed to that term in Rule
13d-3 of the General Rules and Regulations under the Exchange Act.
Board
or
Board of Directors
means the Board of Directors of the Company.
Cause
has the meaning set forth in any unexpired employment or severance agreement between
the Participant and the Company or an Affiliate. If there is no such agreement, Cause means:
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(a)
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the willful and continued failure of the Participant substantially to perform
his or her duties with or for the Company or an Affiliate;
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(b)
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the Participants engaging in conduct that is significantly injurious to the
Company or an Affiliate, monetarily or otherwise;
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-2-
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(c)
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the Participants commission of a crime that is significantly injurious to the
Company or an Affiliate, monetarily, reputationally or otherwise;
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(d)
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the Participants abuse of illegal drugs or other controlled substances; or
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(e)
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the Participants habitual intoxication.
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Unless otherwise defined in the Participants employment or severance agreement, an act or omission
is willful for the purpose of determining whether a termination of employment was made for
cause if it was knowingly done, or knowingly omitted to be done, by the Participant not in good
faith and without reasonable belief that the act or omission was in the best interest of the
Company or an Affiliate. For purposes of this Plan, if a Participant is convicted of a crime or
pleads
nolo contendere
to a criminal charge, he or she will conclusively be deemed to have
committed the crime. The Committee has the discretion, in other circumstances, to determine in
good faith, from all the facts and circumstances reasonably available to it, whether a Participant
who is under investigation for, or has been charged with, a crime will be deemed to have committed
it for purposes of this Plan.
Change in Control
of the Company will be deemed to have occurred (as of a particular day, as
specified by the Board) as of the first day any one or more of the following paragraphs is
satisfied.
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(a)
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Any Person (other than the Company or a trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or a corporation owned
directly or indirectly by the shareholders of the Company in substantially the same
proportions as their ownership of stock of the Company) becomes the Beneficial Owner,
directly or indirectly, of securities of the Company, representing more than twenty
percent of the combined voting power of the Companys then outstanding securities.
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(b)
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During any period of twenty-six consecutive months beginning on or after the
Effective Date, individuals who at the beginning of the period constituted the Board
cease for any reason (other than death, Disability or voluntary Retirement) to
constitute a majority of the Board. For this purpose, any new Director whose election
by the Board, or nomination for election by the Companys shareholders, was approved by
a vote of at least two-thirds of the Directors then still in office, and who either
were Directors at the beginning of the period or whose election or nomination for
election was so approved, will be deemed to have been a Director at the beginning of
any twenty-six month period under consideration.
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-3-
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(c)
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Consummation of: (i) an agreement for the sale or disposition of all or
substantially all the Companys assets; or (ii) a merger, consolidation or
reorganization of the Company with or involving any other corporation, other than a
merger, consolidation or reorganization that results in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the surviving
entity) at least fifty percent of the combined voting power of the voting securities of
the Company (or such surviving entity) outstanding immediately after such merger,
consolidation, or reorganization.
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(d)
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The shareholders of the Company approve a plan of complete liquidation or
dissolution of the Company.
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Notwithstanding the foregoing, if an Award, or amount payable with respect to an Award, is
deferred compensation for purposes of Code Section 409A, and if a payment of such Award or amount
would be accelerated or otherwise triggered upon a Change in Control, then the foregoing
definition is modified, to the extent necessary to avoid the imposition of an excise tax under Code
Section 409A, to mean a change in control event as such term is defined for purposes of Code
Section 409A. For purposes of clarity, if an Award would, for example, vest and be paid on a
Change in Control as defined herein but payment of such Award would violate the provisions of
Code Section 409A, then the Award shall vest but will be paid only in compliance with its terms and
Code Section 409A (
i.e.,
upon a permissible payment event).
Code
means the Internal Revenue Code of 1986, as amended from time to time.
Committee
means, as specified in Article 3, the Compensation Committee of the Board or such
other committee as may be appointed by the Board to administer the Plan.
Company
means Lear Corporation, a Delaware corporation, and any successor thereto as
provided in Article 17.
Director
means any individual who is a member of the Board of Directors.
Disability
means (a) long-term disability as defined under the long-term disability plan of
the Company or an Affiliate that covers that individual, or (b) if the individual is not covered by
such a long-term disability plan, disability as defined for purposes of eligibility for a
disability award under the Social Security Act. Notwithstanding the foregoing, for purposes of
determining the period of time after termination of employment during which a Participant may
exercise an ISO, Disability will have the meaning set forth in Section 22(e)(3) of the Code,
-4-
which is, generally, that the Participant is unable to engage in any substantial gainful activity
by reason of a medically determinable physical or mental impairment that can be expected to
result in death or that has lasted or can be expected to last for a continuous period of at least
twelve months.
Notwithstanding the foregoing, if an Award, or amount payable with respect to an Award, is
deferred compensation for purposes of Code Section 409A, and if a payment of such Award or amount
would be accelerated or otherwise triggered upon a Disability, then the foregoing definition is
modified, to the extent necessary to avoid the imposition of an excise tax under Code Section 409A,
to refer to a Participant who is disabled, as such term is defined for purposes of Code Section
409A. For purposes of clarity, if an Award would, for example, vest and be paid on a Disability
as defined herein but payment of such Award would violate the provisions of Code Section 409A, then
the Award shall vest but will be paid only in compliance with its terms and Code Section 409A
(
i.e.,
upon a permissible payment event).
Effective Date
means November 9, 2009.
Eligible Employee
or
Employee
means any employee of the Company or any of its Affiliates.
Directors who are not employed by the Company or its Affiliates will also be considered Eligible
Employees and Employees under this Plan.
Exchange Act
means the Securities Exchange Act of 1934, as amended from time to time, or any
successor act thereto.
Exercise Price
means the price at which a Share may be purchased by a Participant pursuant
to an Option.
Fair Market Value
means:
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(a)
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the closing trading price of the Shares on the New York Stock Exchange or, if
the Shares are not traded on the New York Stock Exchange, on the NASDAQ Stock Market or
any other exchange on which they are traded; or
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(b)
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if the Shares are not traded on any exchange, the mean between the closing bid
and asked prices of the Shares in the over-the-counter market; or
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(c)
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if those bid and asked prices are not available, then the fair market value as
reported by any nationally recognized quotation service selected by the Committee or as
determined in good faith by the Committee.
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-5-
Notwithstanding the foregoing, for purposes of Awards intended to be exempt from Code Section
409A, the Fair Market Value shall be no less than the fair market value, as such term is defined
for purposes of Code Section 409A.
Freestanding SAR
means an SAR that is granted independently of any Options, as described in
Article 7.
Incentive Stock Option
or
ISO
means an option to purchase Shares granted under Article 6
that is designated as an Incentive Stock Option and that is intended to meet the requirements of
Code Section 422.
Nonqualified Stock Option
or
NQSO
means an option to purchase Shares granted under Article
6 that is not intended to meet the requirements of Code Section 422.
Option
means an Incentive Stock Option or a Nonqualified Stock Option, as described in
Article 6.
Participant
means an Eligible Employee who has been selected by the Committee to participate
in the Plan pursuant to Section 5.2 and who has outstanding an Award granted under the Plan. The
term Participant will also include Directors who are not employees of the Company or an Affiliate
for purposes of Awards under the Plan.
Performance-Based Exception
means the performance-based exception from the tax deductibility
limitations of Code Section 162(m) and any regulations promulgated thereunder.
Performance Period
means the time period during which performance objectives must be met in
order for a Participant to earn Performance Units or Performance Shares granted under Article 9.
Performance Share
means an award with an initial value equal to the Fair Market Value on the
date of grant which is based on the Participants attainment of performance objectives, as
described in Article 9.
Performance Unit
means an award with an initial value established by the Committee at the
time of grant which is based on the Participants attainment of performance objectives, as
described in Article 9.
Person
has the meaning ascribed to that term in Section 3(a)(9) of the Exchange Act and used
in Sections 13(d) and 14(d) thereof, including a group as defined in Section 13(d) thereof.
-6-
Plan
means the Lear Corporation 2009 Long-Term Stock Incentive Plan, as set forth in this
document.
Restriction Period
means the period during which the transfer of Shares of Restricted Stock
is limited in some way (based on the passage of time, the achievement of performance objectives, or
the occurrence of other events as determined by the Committee, at its discretion) or the Restricted
Stock is not vested.
Restricted Stock
means a contingent grant of stock awarded to a Participant pursuant to
Article 8.
Restricted Stock Unit
means a Restricted Unit granted to a Participant, as described in
Article 8, that is payable in Shares.
Restricted Unit
means a notional account established pursuant to an Award granted to a
Participant, as described in Article 8, that is (a) credited with amounts equal to Shares or some
other unit of measurement specified in the Award Agreement, (b) subject to restrictions and (c)
payable in cash or Shares.
Retirement
means termination of employment on or after (a) reaching the age established by
the Company as the normal retirement age in any unexpired employment or severance agreement between
the Participant and the Company or an Affiliate, or, in the absence of such an agreement, the
normal retirement age under the tax-qualified defined benefit retirement plan or, if none, the
tax-qualified defined contribution retirement plan, sponsored by the Company or an Affiliate in
which the Participant participates, or (b) reaching age fifty-five with ten years of service with
the Company or an Affiliate.
Shares
means the shares of common stock, $0.01 par value, of the Company, including their
associated preferred share purchase rights, if applicable.
Stock Appreciation Right
or
SAR
means an Award, granted alone or in connection with a
related Option, designated as an SAR pursuant to the terms of Article 7.
Tandem SAR
means an SAR that is granted in connection with a related Option pursuant to
Article 7, the exercise of which requires forfeiture of the right to purchase a Share under the
related Option (and when a Share is purchased under the Option, the Tandem SAR will similarly be
canceled).
-7-
Article 3. Administration
3.1 The Committee.
The Plan will be administered by the Compensation Committee of the Board,
or by any other Committee appointed by the Board, which Committee (unless otherwise determined by
the Board) will satisfy the nonemployee director requirements of Rule 16b-3 under the Exchange
Act and the regulations of Rule 16b-3 under the Exchange Act and the outside director provisions
of Code Section 162(m), or any successor regulations or provisions, so long as the Company is
subject to the registration requirements of the Exchange Act. The members of the Committee will be
appointed from time to time by, and serve at the discretion of, the Board of Directors. The
Committee will act by a majority of its members at the time in office and eligible to vote on any
particular matter, and Committee action may be taken either by a vote at a meeting or in writing
without a meeting.
3.2 Authority of the Committee.
Except as limited by law and subject to the provisions of
this Plan, the Committee will have full power to: select Eligible Employees to participate in the
Plan; determine the sizes and types of Awards; determine the terms and conditions of Awards in a
manner consistent with the Plan; construe and interpret the Plan and any agreement or instrument
entered into under the Plan; establish, amend or waive rules and regulations for the Plans
administration; and (subject to the provisions of Article 15) amend the terms and conditions of any
outstanding Award to the extent they are within the discretion of the Committee as provided in the
Plan. Further, the Committee will make all other determinations that may be necessary or advisable
to administer the Plan. As permitted by law and consistent with Section 3.1, the Committee may
delegate some or all of its authority under the Plan.
3.3 Decisions Binding.
All determinations and decisions made by the Committee pursuant to the
provisions of the Plan will be final, conclusive and binding on all persons, including, without
limitation, the Company, its Board of Directors, its shareholders, all Affiliates, employees,
Participants and their estates and beneficiaries.
Article 4. Shares Subject to the Plan and Maximum Awards
4.1 Number of Shares Available for Grants.
Subject to adjustment as provided in Sections 4.2
and 4.3, the number of Shares that may be issued or transferred to Participants under the Plan is
5,907,874. Subject to adjustment as provided in Section 4.3, the maximum number of Shares and Share
equivalent units that may be granted during any calendar year to any one Participant under Options,
Freestanding SARs, Restricted Stock, Restricted Units, Restricted Stock Units, Performance Shares
or any other Award is 500,000, which limit will apply regardless of whether the compensation is
paid in Shares or in cash. The maximum number of
-8-
Shares that may be issued by Options intended to be ISOs is 2,500,000. The maximum aggregate
dollar amount that may be paid to any one Participant during any calendar year under Performance
Units or any cash incentive Award granted under Section 9.9 is $7,500,000.
The Shares with respect to which Awards may be made will include authorized but unissued
Shares, and Shares that are currently held or subsequently acquired by the Company as treasury
Shares, including Shares purchased in the open market or in private transactions.
4.2 Lapsed Awards.
If any Award granted under this Plan is canceled, terminates, expires or
lapses for any reason, any Shares subject to the Award will again be available for the grant of an
Award under the Plan. In addition, if a Share subject to an Award is not delivered because the
award is settled in cash or because the Share is used to satisfy a tax withholding obligation or
used to pay the Exercise Price of an Option, then that Share will thereafter be deemed to be
available for grant. The number of Shares subject to a SAR in excess of the number of Shares that
are delivered to the Participant upon exercise of the SAR will not be treated as having been issued
under the Plan and will be available for grant under the Plan.
4.3 Adjustments in Authorized Shares.
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(a)
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If the Shares, as currently constituted, are changed into or exchanged for a
different number or kind of shares of stock or other securities of the Company or of
another corporation (whether because of merger, consolidation, recapitalization,
reclassification, split, reverse split, combination of shares, or other similar change
in the corporate structure of the Company affecting the Shares) or if the number of
Shares is increased through the payment of a stock dividend, then the Committee will
substitute for or add to each Share previously appropriated, later subject to, or which
may become subject to, an Award, the number and kind of shares of stock or other
securities into which each outstanding Share was changed for which each such Share was
exchanged, or to which each such Share is entitled, as the case may be. Outstanding
Awards will also be appropriately adjusted as to price and other terms, to the extent
necessary to reflect the events described above.
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(b)
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Fractional Shares resulting from any adjustment in Awards pursuant to this
section may be settled in cash or otherwise as the Committee determines. The Company
will give notice of any adjustment to each Participant who holds an Award that has been
adjusted and the adjustment (whether or not that notice is given) will be effective and
binding for all Plan purposes.
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-9-
Article 5. Eligibility and Participation
5.1 Eligibility.
All Eligible Employees, including Eligible Employees who are members of the
Board, are eligible to participate in this Plan.
5.2 Actual Participation.
Subject to the provisions of the Plan, the Committee will, from
time to time, select those Eligible Employees to whom Awards will be granted, and will determine
the nature and amount of each Award.
Article 6. Stock Options
6.1 Grant of Options.
Subject to the terms and provisions of the Plan, Options may be granted
to Eligible Employees in the number, and upon the terms, and at any time and from time to time, as
determined by the Committee.
6.2 Award Agreement.
Each Option grant will be evidenced by an Award Agreement that specifies
the Exercise Price, the duration of the Option, the number of Shares to which the Option pertains,
the manner, time and rate of exercise or vesting of the Option, and such other provisions as the
Committee determines. The Award Agreement will also specify whether the Option is intended to be
an ISO or an NQSO.
6.3 Exercise Price.
The Exercise Price for each share subject to an Option will be at least
one hundred percent of the Fair Market Value on the date the Option is granted.
6.4 Duration of Options.
Each Option will expire at the time determined by the Committee at
the time of grant, but no later than the tenth anniversary of the date of its grant.
6.5 No Dividend Equivalents.
Subject to Section 4.3, the Committee may not grant payments in
connection with Options that are equivalent to dividends declared and paid on the Shares underlying
the Options.
6.6 Exercise of Options.
Options will be exercisable at such times and be subject to such
restrictions and conditions as the Committee in each instance approves, which need not be the same
for each Award or for each Participant.
6.7 Payment.
The holder of an Option may exercise the Option only by delivering a written
notice of exercise to the Company setting forth the number of Shares as to which the Option is to
be exercised, together with full payment at the Exercise Price for the Shares and any withholding
tax relating to the exercise of the Option.
-10-
The Exercise Price and any related withholding taxes will be payable to the Company in full
either: (a) in cash, or its equivalent, in United States dollars; (b) by tendering Shares owned by
the Participant and duly endorsed for transfer to the Company, Shares issuable to the Participant
upon exercise of the Option, or any combination of cash, certified or cashiers check and Shares
described in this clause (b); or (c) by any other means the Committee determines to be consistent
with the Plans purposes and applicable law. Cashless exercise must meet the requirements of the
Federal Reserve Boards Regulation T and any applicable securities law restrictions. For this
purpose, cashless exercise will mean that the Participant notifies the Company it will exercise,
and the Company is instructed to deliver the Share issuable on exercise to a broker, who sells the
Shares and holds back the exercise price (and, often, the federal and state withholdings). No more
than the minimum required withholding may be satisfied by the tender of Shares.
6.8 Restrictions on Share Transferability.
The Committee may impose such restrictions on any
Shares acquired through exercise of an Option as it deems necessary or advisable, including,
without limitation, restrictions under applicable federal securities laws, under the requirements
of any stock exchange or market upon which the Shares are then listed or traded, and under any blue
sky or state securities laws applicable to the Shares.
6.9 Termination of Employment.
Each Option Award Agreement will set forth the extent to which
the Participant has the right to exercise the Option after his or her termination of employment
with the Company and all Affiliates. These terms will be determined by the Committee in its sole
discretion, need not be uniform among all Options, and may reflect, among other things,
distinctions based on the reasons for termination of employment.
6.10 Nontransferability of Options.
Except as otherwise provided in a Participants Award
Agreement, no Option granted under the Plan may be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution,
or pursuant to a domestic relations order (as defined in Code Section 414(p)). Further, except
as otherwise provided in a Participants Award Agreement, all Options will be exercisable during
the Participants lifetime only by the Participant or his or her guardian or legal representative.
The Committee may, in its discretion, require a Participants guardian or legal representative to
supply it with the evidence the Committee deems necessary to establish the authority of the
guardian or legal representative to act on behalf of the Participant.
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Article 7. Stock Appreciation Rights
7.1 Grant of SARs.
Subject to the terms and conditions of the Plan, SARs may be granted to
Participants at any time and from time to time, as determined by the Committee. The Committee may
grant Freestanding SARs, Tandem SARs or any combination of the two.
Within the limits of Article 4, the Committee will have sole discretion to determine the
number of SARs granted to each Participant and, consistent with the provisions of the Plan, to
determine the terms and conditions pertaining to SARs.
The grant price of a SAR will equal the Fair Market Value on the date of grant of the SAR.
7.2 Exercise of Tandem SARs.
Tandem SARs may be exercised for all or part of the Shares
subject to the related Option, upon the surrender of the right to exercise the equivalent portion
of the related Option. A Tandem SAR may be exercised only with respect to the Shares for which its
related Option is then exercisable.
7.3 Exercise of Freestanding SARs.
Freestanding SARs may be exercised upon whatever terms and
conditions the Committee, in its sole discretion, imposes.
7.4 Award Agreement.
Each SAR grant will be evidenced by an Award Agreement that specifies
the grant price, the term of the SAR and such other provisions as the Committee determines.
7.5 Term of SARs.
The term of an SAR will be determined by the Committee, in its sole
discretion, but may not exceed ten years.
7.6 Payment of SAR Amount.
Upon exercise of an SAR, a Participant will be entitled to receive
payment from the Company in an amount determined by multiplying:
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(a)
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the excess (or some portion of the excess as determined at the
time of the grant by the Committee) if any, of the Fair Market Value on the
date of exercise of the SAR over the grant price specified in the Award
Agreement; by
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(b)
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the number of Shares as to which the SAR is exercised.
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The payment upon SAR exercise may be made in cash, in Shares of equivalent Fair Market Value or in
some combination of the two, as specified in the Award Agreement.
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7.7 Termination of Employment.
Each SAR Award Agreement will set forth the extent to which
the Participant has the right to exercise the SAR after his or her termination of employment with
the Company and all Affiliates. These terms will be determined by the Committee in its sole
discretion, need not be uniform among all SARs issued under the Plan, and may reflect, among other
things, distinctions based on the reasons for termination of employment.
7.8 Nontransferability of SARs.
Except as otherwise provided in a Participants Award
Agreement, no SAR may be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution, or pursuant to a
domestic relations order (as defined in Code Section 414(p)). Further, except as otherwise
provided in a Participants Award Agreement, all SARs will be exercisable during the Participants
lifetime only by the Participant or the Participants guardian or legal representative. The
Committee may, in its discretion, require a Participants guardian or legal representative to
supply it with evidence the Committee deems necessary to establish the authority of the guardian or
legal representative to act on behalf of the Participant.
7.9 No Dividend Equivalents.
Subject to Section 4.3, the Committee may not grant payments in
connection with SARs that are equivalent to dividends declared and paid on the Shares underlying
the SARs.
Article 8. Restricted Stock, Restricted Stock Units and Restricted Units
8.1 Grant of Restricted Stock, Restricted Stock Units or Restricted Units.
Subject to the
terms and provisions of the Plan, the Committee may, at any time and from time to time, grant
Restricted Stock, Restricted Stock Units or Restricted Units to Participants in such amounts as it
determines.
8.2 Award Agreement.
Each grant of Restricted Stock, Restricted Units or Restricted Stock
Units will be evidenced by an Award Agreement that specifies the Restriction Periods, the number of
Shares or Share equivalent units granted, and such other provisions as the Committee determines.
8.3 Nontransferability.
Restricted Stock, Restricted Units and Restricted Stock Units granted
herein may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,
other than by will or by the laws of descent and distribution, or pursuant to a domestic relations
order (as defined in Code Section 414(p)), until the end of the applicable
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Restriction Period as
specified in the Award Agreement, or upon earlier satisfaction of any other
conditions specified by the Committee in its sole discretion and set forth in the Award
Agreement. All rights with respect to Restricted Stock, Restricted Units and Restricted Stock
Units will be available during the Participants lifetime only to the Participant or the
Participants guardian or legal representative. The Committee may, in its discretion, require a
Participants guardian or legal representative to supply it with evidence the Committee deems
necessary to establish the authority of the guardian or legal representative to act on behalf of
the Participant.
8.4 Other Restrictions.
Subject to Article 11, the Committee may impose such other conditions
or restrictions on any Restricted Stock, Restricted Units or Restricted Stock Units as it deems
advisable including, without limitation, restrictions based upon the achievement of specific
performance objectives (Company-wide, business unit, individual, or any combination of them),
time-based restrictions on vesting following the attainment of the performance objectives, and
restrictions under applicable federal or state securities laws. The Committee may provide that
restrictions established under this Section 8.4 as to any given Award will lapse all at once or in
installments.
The Company will retain the certificates representing Shares of Restricted Stock in its
possession until all conditions and restrictions applicable to the Shares have been satisfied.
8.5 Payment of Awards.
Except as otherwise provided in this Article 8, Shares covered by each
Restricted Stock grant will become freely transferable by the Participant after the last day of the
applicable Restriction Period, and Share equivalent units covered by a Restricted Unit or
Restricted Stock Unit will be paid out in cash or Shares to the Participant following the last day
of the applicable Restriction Period, or on a later date provided in the Award Agreement.
8.6 Voting Rights.
During the Restriction Period, Participants holding Shares of Restricted
Stock may exercise full voting rights with respect to those Shares.
8.7 Dividends and Other Distributions.
During the Restriction Period, Participants awarded
Shares of Restricted Stock, Restricted Units or Restricted Stock Units hereunder will be credited
with regular cash dividends or dividend equivalents paid on those Shares or with respect to those
Share equivalent units. Dividends may be paid currently, accrued as contingent cash obligations,
or converted into additional Shares of Restricted Stock, upon such terms as the Committee
establishes.
The Committee may apply any restrictions it deems advisable to the crediting and payment of
dividends and other distributions. Without limiting the generality of the preceding
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sentence, if
the grant or vesting of Restricted Stock is designed to qualify for the Performance-
Based Exception, the Committee may apply any restrictions it deems appropriate to the payment
of dividends declared with respect to the Restricted Stock, so that the dividends and the
Restricted Stock continue to be eligible for the Performance-Based Exception.
8.8 Termination of Employment.
Each Award Agreement will set forth the extent to which the
Participant has the right to retain unvested Restricted Stock, Restricted Stock Units or Restricted
Units after his or her termination of employment with the Company or an Affiliate. These terms
will be determined by the Committee in its sole discretion, need not be uniform among all Awards of
Restricted Stock, and may reflect, among other things, distinctions based on the reasons for
termination of employment.
Article 9. Performance Units, Performance Shares and Other Awards
9.1 Grant of Performance Units or Performance Shares.
Subject to the terms of the Plan,
Performance Units or Performance Shares may be granted to Participants in such amounts and upon
such terms, and at any time and from time to time, as the Committee determines.
9.2 Value of Performance Units and Performance Shares.
Each Performance Unit will have an
initial value established by the Committee at the time of grant. Each Performance Share will have
an initial value equal to the Fair Market Value on the date of grant. The Committee will set
performance objectives in its discretion which, depending on the extent to which they are met, will
determine the number or value (or both) of Performance Units or Performance Shares that will be
paid out to the Participant. For purposes of this Article 9, the time period during which the
performance objectives must be met will be called a Performance Period and will be set by the
Committee in its discretion.
9.3 Earning of Performance Units and Performance Shares.
Subject to the terms of this Plan,
after the applicable Performance Period has ended, the holder of Performance Units or Performance
Shares will be entitled to receive payout on the number and value of Performance Units or
Performance Shares earned by the Participant over the Performance Period, to be determined as a
function of the extent to which the corresponding performance objectives have been achieved.
9.4 Award Agreement.
Each grant of Performance Units or Performance Shares will be evidenced
by an Award Agreement specifying the material terms and conditions of the Award
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(including the form
of payment of earned Performance Units or Performance Shares), and such other provisions as the
Committee determines.
9.5 Form and Timing of Payment of Performance Units and Performance Shares.
Except as
provided in Article 12, payment of earned Performance Units and Performance Shares will be made as
soon as practicable after the close of the applicable Performance Period, in a manner determined by
the Committee in its sole discretion. The Committee will pay earned Performance Units and
Performance Shares in the form of cash, in Shares, or in a combination of cash and Shares, as
specified in the Award Agreement. Performance Shares may be paid subject to any restrictions
deemed appropriate by the Committee.
9.6 Termination of Employment Due to Death or Disability.
Unless determined otherwise by the
Committee and set forth in the Participants Award Agreement, if a Participants employment is
terminated by reason of death or Disability during a Performance Period, the Participant will
receive a prorated payout of the Performance Units or Performance Shares, as specified by the
Committee in its discretion in the Award Agreement. Payment of earned Performance Units and
Performance Shares will be made at a time specified by the Committee in its sole discretion and set
forth in the Participants Award Agreement.
9.7 Termination of Employment for Other Reasons.
If a Participants employment terminates
during a Performance Period for any reason other than death or Disability, the Participant will
forfeit all Performance Units and Performance Shares to the Company, unless the Participants Award
Agreement provides otherwise.
9.8 Nontransferability.
Except as otherwise provided in a Participants Award Agreement,
Performance Units and Performance Shares may not be sold, transferred, pledged, assigned or
otherwise alienated or hypothecated, other than by will or by the laws of descent and
distribution, or pursuant to a domestic relations order (as defined in Code Section 414(p)).
Further, except as otherwise provided in a Participants Award Agreement, a Participants rights
under the Plan will be exercisable during the Participants lifetime only by the Participant or
Participants guardian or legal representative. The Committee may, in its discretion, require a
Participants guardian or legal representative to supply it with evidence the Committee deems
necessary to establish the authority of the guardian or legal representative to act on behalf of
the Participant.
9.9 Other Awards.
In addition to the Awards described in Articles 6 through 8 and Sections
9.1 through 9.8 above, and subject to the terms of the Plan, the Committee may grant
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other
incentives payable in cash or Shares under the Plan as it determines to be in the best interests of
the Company and subject to such other terms and conditions as it deems appropriate.
Article 10. Performance Measures
Unless and until the Committee proposes and the Companys shareholders approve a change in the
general performance measures set forth in this Article 10, the performance measure(s) to be used
for purposes of Awards designed to qualify for the Performance-Based Exception will be chosen from
among the following alternatives:
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(a)
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net earnings;
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(b)
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operating earnings or income;
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(c)
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earnings growth;
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(d)
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net sales growth;
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(e)
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net income (absolute or competitive growth rates comparative);
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(f)
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net income applicable to common stock;
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(g)
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cash flow, including operating cash flow, free cash flow, discounted cash flow
return on investment, and cash flow in excess of cost of capital;
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(h)
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earnings per share of common stock;
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(i)
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return on shareholders equity (absolute or peer-group comparative);
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(j)
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stock price (absolute or peer-group comparative);
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(k)
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absolute and/or relative return on common shareholders equity;
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(l)
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absolute and/or relative return on capital;
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(m)
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absolute and/or relative return on assets;
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(n)
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economic value added (income in excess of cost of capital);
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(o)
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customer satisfaction;
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(p)
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quality metrics;
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(q)
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expense reduction; and
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(r)
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ratio of operating expenses to operating revenues.
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The Committee may specify any reasonable definition of the performance measures it uses. Such
definitions may provide for reasonable adjustments and may include or exclude items, including but
not limited to: investment gains and losses; extraordinary, unusual or non-recurring items; gains
or losses on the sale of assets; effects of changes in accounting principles or the application
thereof; asset impairment charges; effects of currency fluctuations; acquisitions, divestitures, or
financing activities; recapitalizations, including stock splits and dividends; expenses for
restructuring or productivity initiatives; discontinued operations; and other non-operating items.
The Committee will have the discretion to adjust targets set for preestablished performance
objectives; however, Awards designed to qualify for the Performance-Based Exception may not be
adjusted upward, except to the extent permitted under Code Section 162(m), to reflect accounting
changes or other events.
If Code Section 162(m) or other applicable tax or securities laws change to allow the
Committee discretion to change the types of performance measures without obtaining shareholder
approval, the Committee will have sole discretion to make such changes without obtaining
shareholder approval. In addition, if the Committee determines it is advisable to grant Awards
that will not qualify for the Performance-Based Exception, the Committee may grant Awards that do
not so qualify.
Article 11. Beneficiary Designation
Each Participant may, from time to time, name any beneficiary or beneficiaries (who may be
named contingently or successively) to whom any benefit under the Plan is to be paid in case the
Participant should die before receiving any or all of his or her Plan benefits. Each beneficiary
designation will revoke all prior designations by the same Participant, must be in a form
prescribed by the Committee, and must be made during the Participants lifetime. If the
Participants designated beneficiary predeceases the Participant or no beneficiary has been
designated, benefits remaining unpaid at the Participants death will be paid to the Participants
estate or other entity described in the Participants Award Agreement.
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Article 12. Deferrals
The Committee may, consistent with the requirements of Code Section 409A, permit a Participant
to defer receipt of cash or Shares that would otherwise be due to him or her by virtue of an Option
or SAR exercise, the lapse or waiver of restrictions on Restricted Stock, Restricted
Stock Units, Restricted Units or other Awards, or the satisfaction of any requirements or
objectives with respect to Performance Units, Performance Shares or other Awards. If any such
deferral election is permitted, the Committee will, in its sole discretion, establish rules and
procedures for such deferrals consistent with the requirements of Code Section 409A.
Article 13. Rights of Employees
13.1 Employment.
Nothing in the Plan will interfere with or limit in any way the right of the
Company or any affiliate of the Company (as defined in federal securities laws) to terminate any
Participants employment at any time, or confer upon any Participant any right to continue in the
employ of the Company or any Affiliate.
13.2 Participation.
No Eligible Employee will have the right to receive an Award under this
Plan, or, having received any Award, to receive a future Award.
Article 14. Change in Control
14.1 Treatment of Outstanding Awards.
Upon the occurrence of a Change in Control, unless
otherwise specifically prohibited under applicable laws, or by the rules and regulations of any
governing governmental agencies or national securities exchanges:
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(a)
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any and all outstanding Options and SARs will become immediately exercisable
(and will deemed to be exercisable immediately prior to the Change in Control), and
will remain exercisable throughout their entire term (the Vested Options and SARs);
provided, however, that, with respect to Vested Options and SARs that are not exercised
in connection with the Change in Control, such Vested Options and SARs will be subject
to the provisions of Section 14.1(e) below, as applicable;
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(b)
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any Restriction Periods or other restrictions imposed on Restricted Stock,
Restricted Stock Units and Restricted Units will lapse, except that the degree of
vesting associated with those awards that is conditioned on the achievement of
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performance conditions will be determined as set forth in Section 14.1(c) or Section
14.1(d), as applicable;
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(c)
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except as otherwise provided in the Award Agreement, the vesting of all
Performance Units and Performance Shares will be accelerated as of the effective date
of the Change in Control, and Participants will be paid in cash, within thirty
days after the effective date of the Change in Control, a pro rata amount based on
an assumed achievement of all relevant performance objectives at target levels, and
upon the length of time within the Performance Period that elapsed prior to the
effective date of the Change in Control;
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(d)
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notwithstanding the foregoing, if the Committee determines that actual
performance to the effective date of the Change in Control exceeds target levels, the
prorated payouts made pursuant to Sections 14.1(b) and (c) will be made at levels
commensurate with the actual performance (determined by extrapolating the actual
performance to the end of the Performance Period) based on the length of time within
the Performance Period that elapsed prior to the Change in Control; and
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(e)
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(i) if the Company is a party to an agreement that is reasonably likely to result in a
Change in Control, such agreement may provide for: (A) the continuation of the Vested
Options and SARs by the Company, if the Company is the surviving corporation; (B) the
assumption of the Vested Options and SARs by the surviving corporation or its parent or
subsidiary; (C) the substitution by the surviving corporation or its parent or
subsidiary of equivalent awards for the Vested Options and SARs; or (D) settlement of
the Vested Options and SARs for the Change in Control Price (less, to the extent
applicable, the per share exercise or grant price), or, if the per share exercise or
grant price equals or exceeds the Change in Control Price, such Vested Options and SARs
shall terminate and be canceled.
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(ii) to the extent that Restricted Stock, Restricted Units and Restricted Stock
Units settle in Shares in accordance with their terms upon a Change in Control, such
Shares shall be entitled to receive as a result of the Change in Control transaction
the same consideration as the Shares held by shareholders of the Company as a result
of the Change in Control transaction.
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For purposes of this Section 14.1(e), Change in Control Price shall mean the Fair
Market Value of a Share upon a Change in Control. To the extent that the
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consideration paid in any such Change in Control transaction consists all or in part
of securities or other non-cash consideration, the value of such securities or other
non-cash consideration shall be determined in good faith by the Committee.
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14.2 Termination, Amendment and Modifications of Change in Control Provisions.
Notwithstanding any other provision of this Plan or any provision in an Award Agreement, this
Article 14 may not be terminated, amended or modified on or after the effective
date of a Change in Control in a way that would adversely affect any Award in any material way
theretofore granted to a Participant, unless the Participant gives his or her prior written consent
to the termination, amendment or modification.
Article 15. Amendment, Modification and Termination
15.1 Amendment, Modification and Termination.
Subject to Section 14.2, the Committee or Board
may at any time and from time to time, alter, amend, modify or terminate the Plan in whole or in
part. The Committee or Board will not, however, increase the number of Shares that may be issued
or transferred to Participants under the Plan, as described in the first sentence of Section 4.1
(and subject to adjustment as provided in Sections 4.2 and 4.3).
Subject to the terms and conditions of the Plan, the Committee may modify, extend or renew
outstanding Awards under the Plan, or accept the surrender of outstanding Awards (to the extent not
already exercised) and grant new Awards in substitution of them (to the extent not already
exercised). Except as provided in Sections 4.3 and 15.2, the Committee will not, however, modify
any outstanding Option or SAR so as to specify a lower Exercise Price or grant price (and will not
cancel an Option or SAR and substitute for it an Option or SAR with a lower Exercise price or grant
price), without the approval of the Companys shareholders. In addition, except as provided in
Sections 4.3 and 15.2, the Committee may not cancel an outstanding Option or SAR whose Exercise
Price or grant price is equal to or greater than the current Fair Market Value of a Share and
substitute for it another Award without the prior approval of the Companys shareholders.
Notwithstanding the foregoing, no alteration, modification or termination of an Award will, without
the prior written consent of the Participant, adversely alter or impair any rights or obligations
under any Award already granted under the Plan.
15.2 Adjustment of Awards Upon the Occurrence of Certain Unusual or Nonrecurring Events.
The
Committee may, using reasonable care, make adjustments in the terms and conditions of, and the
criteria included in, Awards in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan (i) in recognition of unusual or
nonrecurring events (including, without limitation, the events
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described in Section 4.3) affecting
the Company or its financial statements, (ii) in recognition of changes in applicable laws,
regulations, or accounting principles, or (iii) whenever the Committee determines that such
adjustments are necessary, equitable and/or appropriate. In the case of an Award designed to
qualify for the Performance-Based Exception, the Committee will take care not to make an adjustment
that would disqualify the Award.
15.3 Awards Previously Granted.
No termination, amendment or modification of the Plan will
adversely affect in any material way any Award already granted, without the written consent of the
Participant who holds the Award.
15.4 Compliance with Code
Section 162(m)
and Code Section 409A.
Awards will comply with the
requirements of Code Section 162(m), unless the Committee determines that such compliance is not
desired with respect to an Award available for grant under the Plan. In addition, if changes are
made to Code Section 162(m) to permit greater flexibility as to any Award available under the Plan,
the Committee may, subject to this Article 15, make any adjustments it deems appropriate. The Plan
and Awards, and all amounts payable with respect to Awards, are intended to comply with, or be
exempt from, Code Section 409A and the interpretative guidance thereunder and shall be construed,
interpreted and administered accordingly. If an unintentional operational failure occurs with
respect to Code Section 409A, any affected Participant or beneficiary shall fully cooperate with
the Company to correct the failure to the extent possible in accordance with any correction
procedure established by the U.S. Department of the Treasury. If a Participant is a specified
employee (as such term is defined for purposes of Code Section 409A) at the time of his or her
termination of employment, no amount that is subject to Code Section 409A and that becomes payable
by reason of such termination of employment shall be paid to the Participant before the earlier of
(i) the expiration of the six-month period measured from the date of the Participants termination
of employment, and (ii) the date of the Participants death. A termination of employment shall be
deemed to occur only if it is a separation from service within the meaning of Code Section 409A,
and references in the Plan and any Award Agreement to termination, termination of employment,
or like terms shall mean a separation from service. A separation from service shall be deemed to
occur if it is anticipated that the level of services the Participant will perform after a certain
date (whether as an employee or as an independent contractor) will permanently decrease to no more
than twenty percent (20%) of the average level of services provided by the Participant in the
immediately preceding thirty-six (36) months.
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Article 16. Withholding
16.1 Tax Withholding.
The Company will have the power and the right to deduct or withhold, or
require a Participant to remit to the Company, an amount sufficient to satisfy federal, state, and
local taxes, domestic or foreign, required by law or regulation to be withheld with respect to any
taxable event arising under this Plan. No Award Agreement will permit reload options to be granted
in connection with any Shares used to pay a tax withholding obligation.
16.2 Share Withholding.
With respect to withholding required upon the exercise of Options or
SARs, upon the lapse of restrictions on Restricted Stock, or upon any other taxable event arising
as a result of Awards granted hereunder, the Company may satisfy the minimum withholding
requirement for supplemental wages, in whole or in part, by withholding Shares having a Fair Market
Value (determined on the date the Participant recognizes taxable income on the Award) equal to the
minimum withholding tax required to be collected on the transaction. The Participant may elect,
subject to the approval of the Committee, to deliver the necessary funds to satisfy the withholding
obligation to the Company, in which case there will be no reduction in the Shares otherwise
distributable to the Participant.
Article 17. Indemnification
Each person who is or has been a member of the Committee or the Board will be indemnified and
held harmless by the Company from and against any loss, cost, liability, or expense that may be
imposed upon or reasonably incurred by him or her in connection with or as a result of any claim,
action, suit or proceeding to which he or she may be a party or in which he or she may be involved
by reason of any action taken, or failure to act, under the Plan. Each such person will also be
indemnified and held harmless by the Company from and against any and all amounts paid by him or
her in a settlement approved by the Company, or paid by him or her in satisfaction of any judgment,
of or in a claim, action, suit or proceeding against him or her and described in the previous
sentence, so long as he or she gives the Company an opportunity, at its own expense, to handle and
defend the claim, action, suit or proceeding before he or she undertakes to handle and defend it.
The foregoing right of indemnification will not be exclusive of any other rights of indemnification
to which a person who is or has been a member of the Committee or the Board may be entitled under
the Companys Certificate of Incorporation or By-Laws, as a matter of law, or otherwise, or any
power that the Company may have to indemnify him or her or hold him or her harmless.
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Article 18. Successors
All obligations of the Company under the Plan or any Award Agreement will be binding on any
successor to the Company, whether the existence of the successor results from a direct or indirect
purchase of all or substantially all of the business or assets of the Company or both, or a merger,
consolidation, or otherwise.
Article 19. Legal Construction
19.1 Number.
Except where otherwise indicated by the context, any plural term used in this
Plan includes the singular and a singular term includes the plural.
19.2 Severability.
If any provision of the Plan is held illegal or invalid for any reason,
the illegality or invalidity will not affect the remaining parts of the Plan, and the Plan will be
construed and enforced as if the illegal or invalid provision had not been included.
19.3 Requirements of Law.
The granting of Awards and the issuance of Share or cash payouts
under the Plan will be subject to all applicable laws, rules, and regulations, and to any approvals
by governmental agencies or national securities exchanges as may be required.
19.4 Securities Law Compliance.
As to any individual who is, on the relevant date, an
officer, director or ten percent beneficial owner of any class of the Companys equity securities
that is registered pursuant to Section 12 of the Exchange Act, all as defined under Section 16 of
the Exchange Act, transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 under the Exchange Act, or any successor rule. To the extent any
provision of the Plan or action by the Committee fails to so comply, it will be deemed null and
void, to the extent permitted by law and deemed advisable by the Committee.
19.5 Awards to Foreign Nationals and Employees Outside the United States.
To the extent the
Committee deems it necessary, appropriate or desirable to comply with foreign law or practice and
to further the purposes of this Plan, the Committee may, without amending the Plan, (i) establish
rules applicable to Awards granted to Participants who are foreign nationals, are employed outside
the United States, or both, including rules that differ from those set forth in this Plan, and (ii)
grant Awards to such Participants in accordance with those rules.
19.6 Unfunded Status of the Plan.
The Plan is intended to constitute an unfunded plan for
incentive and deferred compensation. With respect to any payments or deliveries of Shares not yet
made to a Participant by the Company, the Participants rights are no greater than
-24-
those of a
general creditor of the Company. The Committee may authorize the establishment of trusts or other
arrangements to meet the obligations created under the Plan, so long as the arrangement does not
cause the Plan to lose its legal status as an unfunded plan.
19.7 Governing Law.
To the extent not preempted by federal law, the Plan and all agreements
hereunder will be construed in accordance with and governed by the laws of the State of Michigan
without giving effect to principles of conflicts of law.
*****
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Annex A RSU Terms and Conditions
LEAR CORPORATION
2009 LONG-TERM STOCK INCENTIVE PLAN
2009 RESTRICTED STOCK UNIT TERMS AND CONDITIONS
1.
Definitions
. Any term capitalized herein but not defined will have the meaning set
forth in the Plan.
2.
Grant and Vesting of Restricted Stock Units
.
(a) As of the Grant Date specified in the letter that accompanies this document, the Employee
will be credited with the number of Restricted Stock Units set forth in the letter that accompanies
this document. Each Restricted Stock Unit is a notional amount that represents one unvested share
of Common Stock, $0.01 par value, of the Company (the Common Stock). Each Restricted Stock Unit
constitutes the right, subject to the terms and conditions of the Plan and this document, to
distribution of a Share if and when the Restricted Stock Unit vests. If the Employees employment
with the Company and all of its Affiliates terminates before the date that all of the Restricted
Stock Units vest, his or her right to receive the Shares underlying unvested Restricted Stock Units
will be only as provided in Section 4.
(b) One-third of the Restricted Stock Units will vest on each of the first three anniversaries
of the Grant Date. Notwithstanding anything contained herein to the contrary, the right of an
Employee to receive Shares underlying a Restricted Stock Unit will be forfeited if the Committee
determines, in its sole discretion, that (i) the Employee has entered into a business or employment
relationship that is detrimentally competitive with the Company or substantially injurious to the
Companys financial interests; or (ii) the Employee has been discharged from employment with the
Company or an Affiliate for Cause.
3.
Rights as a Stockholder
.
(a) Unless and until a Restricted Stock Unit has vested and the Share underlying it has been
distributed to the Employee, the Employee will not be entitled to vote in respect of that RSU or
that Share.
(b) If the Company declares a cash dividend on its shares, then, on the payment date of the
dividend, the Employee will be credited with dividend equivalents equal to the amount of cash
dividend per share multiplied by the number of Restricted Stock Units credited to the Employee
through the record date. The dollar amount credited to an Employee under the preceding sentence
will be credited to an account (Account) established for the Employee for bookkeeping purposes
only on the books of the Company. The amounts credited to the Account will be credited as of the
last day of each month with interest, compounded monthly, until the amount credited to the Account
is paid to the Employee. The rate of interest
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credited under the previous sentence will be the
prime rate of interest as reported by the Midwest
edition of the Wall Street Journal for the second business day of each quarter on an annual
basis. The balance in the Account will be subject to the same terms regarding vesting and
forfeiture as the Employees Restricted Stock Units awarded under the accompanying letter and this
document, and will be paid in cash in a single sum at the time that the Shares associated with the
Employees Restricted Stock Units are delivered (or forfeited at the time that the Employees
Restricted Stock Units are forfeited).
4.
Termination of Employment
. Subject to the forfeiture provisions of clause 2(b)
above, an Employees right to receive the Shares underlying his or her Restricted Stock Units after
termination of his or her employment will be only as follows:
(a)
End of Service
. If the Employee experiences an End of Service Date, the Employee
will be entitled to receive the Shares underlying any Restricted Stock Units that have then vested.
In addition, the Employee will be entitled to receive immediately the Shares underlying the number
of Restricted Stock Units, if any, that have not yet vested but would have vested under Section 2
if the Employees End of Service Date had been 24 months following his actual End of Service Date.
The Employee will forfeit the right to receive Shares underlying any Restricted Stock Units that
have not yet vested or would not have vested in the next 24 months as described in the preceding
sentence. The Employees End of Service Date is the date of his or her retirement after
attaining age 55 and completing ten years of service.
(b)
Other Termination of Employment
. If an Employees employment with the Company
shall be terminated for Disability or by the Company for any reason other than Cause, upon the
Employees death or, for an Employee who is a party to an employment or severance agreement with
the Company, by the Employee for Good Reason (as defined in the Employees employment or severance
agreement), the Employee will be immediately entitled to receive the Shares underlying all of the
Restricted Stock Units that have not yet vested under Section 2 above. If an Employees employment
with the Company terminates for any reason other than those provided in Section 4(a) or the first
sentence of this Section 4(b), the Employee or his or her estate (in the event of his or her death
after termination) will forfeit the right to receive Shares underlying any Restricted Stock Units
that have not yet vested. For each Employee who is a party to an employment or severance agreement
with the Company, for purposes of this Section 4, the term Disability shall mean Incapacity as
defined in such Employees employment or severance agreement, as applicable.
5.
Timing and Form of Payment
. Except as provided in this Section or in clause 2(b)
or Section 4, once a Restricted Stock Unit vests, the Employee will be entitled to receive a Share
in its place. Delivery of the Share will be made as soon as administratively feasible after its
associated Restricted Stock Unit vests. Shares will be credited to an account established for the
benefit of the Employee with the Companys administrative agent. The Employee will have full legal
and beneficial ownership with respect to the Shares at that time.
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6.
Assignment and Transfers
. The Employee may not assign, encumber or transfer any of
his or her rights and interests under the Award described in this document, except, in the event of
his or her death, by will or the laws of descent and distribution.
7.
Withholding Tax
. The Company and any Affiliate will have the right to retain
Shares or cash that are distributable to the Employee hereunder to the extent necessary to satisfy
any withholding taxes, whether federal or state, triggered by the distribution of Shares or cash
pursuant to the Award reflected in this document.
8.
Securities Law Requirements
.
(a) The Restricted Stock Units are subject to the further requirement that, if at any time the
Committee determines in its discretion that the listing or qualification of the Shares subject to
the Restricted Stock Units under any securities exchange requirements or under any applicable law,
or the consent or approval of any governmental regulatory body, is necessary as a condition of, or
in connection with, the issuance of Shares under it, then Shares will not be issued under the
Restricted Stock Units, unless the necessary listing, qualification, consent or approval has been
effected or obtained free of any conditions not acceptable to the Committee.
(b) No person who acquires Shares pursuant to the Award reflected in this document may,
during any period of time that person is an affiliate of the Company (within the meaning of the
rules and regulations of the Securities and Exchange Commission under the Securities Act of 1933
(the 1933 Act)) sell the Shares, unless the offer and sale is made pursuant to (i) an effective
registration statement under the 1933 Act, which is current and includes the Shares to be sold, or
(ii) an appropriate exemption from the registration requirements of the 1933 Act, such as that set
forth in Rule 144 promulgated under the 1933 Act. With respect to individuals subject to Section
16 of the Exchange Act, transactions under this Award are intended to comply with all applicable
conditions of Rule 16b-3, or its successors under the Exchange Act. To the extent any provision of
the Award or action by the Committee fails to so comply, the Committee may determine, to the extent
permitted by law, that the provision or action will be null and void.
9.
No Limitation on Rights of the Company
. Subject to Sections 4.3 and 15.2 of the
Plan, the grant of the Award described in this document will not in any way affect the right or
power of the Company to make adjustments, reclassification or changes in its capital or business
structure, or to merge, consolidate, dissolve, liquidate, sell or transfer all or any part of its
business or assets.
10.
Plan, Restricted Stock Units and Award Not a Contract of Employment
. Neither the
Plan, the Restricted Stock Units nor any other right or interest that is part of the Award
reflected in this document is a contract of employment, and no terms of employment of the Employee
will be affected in any way by the Plan, the Restricted Stock Units, the Award, this document or
related instruments, except as specifically provided therein. Neither the establishment of the
Plan nor the Award will be construed as conferring any legal rights upon the
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Employee for a
continuation of employment, nor will it interfere with the right of the Company or any Affiliate to
discharge the Employee and to treat him or her without regard to the effect that treatment might
have upon him or her as an Employee.
11.
Employee to Have No Rights as a Stockholder
. Except as provided in Section 3
above, the Employee will have no rights as a stockholder with respect to any Shares subject to the
Restricted Stock Units prior to the date on which he or she is recorded as the holder of those
Shares on the records of the Company.
12.
Notice
. Any notice or other communication required or permitted hereunder must be
in writing and must be delivered personally, or sent by certified, registered or express mail,
postage prepaid. Any such notice will be deemed given when so delivered personally or, if mailed,
three days after the date of deposit in the United States mail, in the case of the Company to 21557
Telegraph Road, Southfield, Michigan, 48033, Attention: General Counsel and, in the case of the
Employee, to the last known address of the Employee in the Companys records.
13.
Governing Law
. This document and the Award will be construed and enforced in
accordance with, and governed by, the laws of the State of Michigan, determined without regard to
its conflict of law rules.
14.
Code Section 409A
. Notwithstanding any other provision in this Restricted Stock
Unit document, if an Employee is a specified employee (as such term is defined for purposes of
Code Section 409A) at the time of his or her termination of employment, no amount that is subject
to Code Section 409A and that becomes payable by reason of such termination of employment shall be
paid to the Employee before the earlier of (i) the expiration of the six-month period measured from
the date of the Employees termination of employment, and (ii) the date of the Employees death.
15.
Plan Document Controls
. The rights granted under this Restricted Stock Unit
document are in all respects subject to the provisions of the Plan to the same extent and with the
same effect as if they were set forth fully therein. If the terms of this document or the Award
conflict with the terms of the Plan document, the Plan document will control.
A-4
Annex B Stock-Settled SAR Terms and Conditions
LEAR CORPORATION
2009 LONG-TERM STOCK INCENTIVE PLAN
STOCK-SETTLED STOCK APPRECIATION RIGHT TERMS AND CONDITIONS
1.
Definitions
. Any term capitalized herein but not defined will have the meaning set
forth in the Plan.
2.
Term, Vesting and Exercise of the SAR
.
(a) If the Employee remains employed by the Company, the SAR will expire seven years from the
Grant Date. If the Employee terminates employment with the Company before the seventh anniversary
of the Grant Date, his or her right to exercise the SAR after termination of his or her employment
will be only as provided in Section 3.
(b) The SAR will vest and become exercisable as to one-third of the Shares to which the SAR
relates on each of the first three anniversaries of the Grant Date. If the Employee experiences an
End of Service Date, the SAR will vest as to those Shares underlying the SAR, if any, that have not
yet vested but would have vested hereunder if the Employees End of Service Date had been 24 months
following his actual End of Service Date. The Employee will forfeit that portion of the SAR which
has not yet vested or would not have vested in the next 24 months as described in the preceding
sentence. Notwithstanding anything contained herein to the contrary, the right of an Employee to
exercise the SAR will be forfeited if the Committee determines, in its sole discretion, that (i)
the Employee has entered into a business or employment relationship which is detrimentally
competitive with the Company or substantially injurious to the Companys financial interests; or
(ii) the Employee has been discharged from employment with the Company or an Affiliate for Cause.
(c) The SAR may be exercised by written notice to the Company indicating the number of Shares
to which the SAR relates being exercised. When the SAR is vested and exercisable, it may be
exercised in whole at any time or in part from time to time as to any or all full Shares under the
SAR. Notwithstanding the foregoing, the SAR may not be exercised for fewer than 100 Shares at any
one time or, if fewer, all the Shares that are then subject to the SAR.
(d) Any amount due to the Employee upon exercise of the SAR will be paid in Shares. The
number of Shares delivered to Employee upon exercise of the SAR will be based on the amount, if
any, by which the Fair Market Value of a Share on the date of exercise exceeds the grant price
(Grant Price) of the SAR. The Employee will not receive a distribution of Shares if the Fair
Market Value on the date of exercise does not exceed the Grant Price. The Employees distribution
of Shares upon exercise of the SAR will be calculated by dividing
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(x) the aggregate dollar
difference between the Fair Market Value of a Share on the date of exercise
and the Grant Price for all SARs so exercised by (y) the Fair Market Value of a Share on the
date of exercise; provided, that the amount of Shares delivered to the Employee shall be subject to
any minimum withholding as specified in clause 4 hereof.
3.
Termination of Employment
. Subject to the forfeiture provisions in clause 2(b)
above, an Employees right to exercise the SAR after termination of his or her employment will be
only as follows:
(a)
End of Service
. If the Employee experiences an End of Service Date, the SAR will
immediately vest, in accordance with Section 2(b) hereof, as to those Shares underlying the SAR, if
any, that have not yet vested but would have vested hereunder if the Employees End of Service Date
had been 24 months following his actual End of Service Date, and the Employee will have the right
for thirteen months following his or her End of Service Date (but not later than the date on which
the SAR would otherwise expire), to exercise the SAR. If the Employee dies prior to the end of the
thirteen-month period after the End of Service Date, his or her estate will have the right to
exercise the SAR within thirteen months following the Employees End of Service Date (but not later
than the date on which the SAR would otherwise expire). The Employees End of Service Date is
the date of his or her retirement after attaining age 55 and completing ten years of service.
(b)
Disability, Death, Not for Cause or Good Reason Termination
. If an Employees
employment with the Company and all Affiliates shall be terminated for Disability or by the Company
for any reason other than Cause, upon the Employees death or, for an Employee who is a party to an
employment or severance agreement with the Company, by the Employee for Good Reason (as defined in
the Employees employment or severance agreement), the SAR will immediately vest and become
exercisable as to all Shares to which the SAR relates, and the Employee (or in the case of death,
the Employees estate) will have the right for a period of thirteen months following the date of
the termination (but not later than the date on which the SAR would otherwise expire) to exercise
the SAR. For each Employee who is a party to an employment or severance agreement with the
Company, for purposes of this Section 3(b), the term Disability shall mean Incapacity as
defined in such Employees employment or severance agreement, as applicable.
(c)
Other Termination
. If an Employees employment with the Company and all
Affiliates terminates for any reason other than those provided in clauses 3(a) or (b), the Employee
or his or her estate (in the event of his or her death after the Employees termination): (i) may,
within the 30-day period following the termination, exercise the SAR to the extent that it was
vested and exercisable on the date his or her employment terminated; and (ii) will forfeit the SAR
to the extent that it was not vested and exercisable on the date his or her employment terminated.
4.
Medium and Time of Payment
. Any withholding tax, up to the minimum withholding
requirement for supplemental wages may be paid with Shares issuable to the
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Employee upon exercise
under this SAR. Shares used to satisfy any minimum required withholding tax will be valued at
their Fair Market Value as of the date of exercise.
5.
Transferability of SAR and Shares Acquired Upon Exercise of SAR
. This SAR is
transferable only by will or the laws of descent and distribution, or pursuant to a domestic
relations order (as defined in Code Section 414(p)). The SAR will be exercisable during the
Employees lifetime only by the Employee or by his or her guardian or legal representative. The
Committee may, in its discretion, require a guardian or legal representative to supply it with
evidence the Committee deems necessary to establish the authority of the guardian or legal
representative to exercise the SAR on behalf of the Employee. Except as limited by applicable
securities laws and the provisions of Section 6 hereof, Shares acquired upon exercise of this SAR
will be freely transferable.
6.
Securities Law Requirements
.
(a) If required by the Company, the notice of exercise of the SAR must be accompanied by the
Employees written representation: (i) that the stock being acquired is purchased for investment
and not for resale or with a view to its distribution; (ii) acknowledging that the stock has not
been registered under the Securities Act of 1933, as amended (the 1933 Act); and (iii) agreeing
that the stock may not be sold or transferred unless either there is an effective Registration
Statement for it under the 1933 Act, or in the opinion of counsel for the Company, the sale or
transfer will not violate the 1933 Act. This SAR will not be exercisable in whole or in part, nor
will the Company be obligated to sell or issue any Shares subject to the SAR, if exercise and sale
(or issuance) may, in the opinion of counsel for the Company, violate the 1933 Act (or other
federal or state statutes having similar requirements), as it may be in effect at that time, or
cause the Company to violate the terms of Section 4.1 of the Plan.
(b) The SAR is subject to the further requirement that, if at any time the Committee
determines in its discretion that the registration, listing or qualification of the Shares subject
to the SAR under any federal securities law, securities exchange requirements or under any other
applicable law, or the consent or approval of any governmental regulatory body, is necessary as a
condition of, or in connection with, the granting of the SAR or the issuance of Shares under it,
the SAR may not be exercised in whole or in part, unless the necessary registration, listing,
qualification, consent or approval has been effected or obtained free of any conditions not
acceptable to the Committee.
(c) No person who acquires Shares pursuant to this SAR may, during any period of time that
person is an affiliate of the Company (within the meaning of the rules and regulations of the
Securities and Exchange Commission under the 1933 Act) sell the Shares, unless the offer and sale
is made pursuant to (i) an effective registration statement under the 1933 Act, which is current
and includes the Shares to be sold, or (ii) an appropriate exemption from the registration
requirements of the 1933 Act, such as that set forth in Rule 144 promulgated under the 1933 Act.
With respect to individuals subject to Section 16 of the Securities Exchange Act of 1934, as
amended (the Exchange Act), transactions under this SAR are intended to
B-3
comply with all
applicable conditions of Rule 16b-3, or its successors under the Exchange Act. To the extent any
provision of the SAR or action by the Committee fails to so comply, the
Committee may determine, to the extent permitted by law, that the provision or action will be
null and void.
7.
No Obligation to Exercise SAR
. The granting of the SAR imposes no obligation upon
the Employee (or upon a transferee of an Employee) to exercise the SAR.
8.
No Limitation on Rights of the Company
. Subject to Sections 4.3 and 15.2 of the
Plan, the grant of the SAR will not in any way affect the right or power of the Company to make
adjustments, reclassification or changes in its capital or business structure, or to merge,
consolidate, dissolve, liquidate, sell or transfer all or any part of its business or assets.
9.
Plan and SAR Not a Contract of Employment
. Neither the Plan nor this SAR is a
contract of employment, and no terms of employment of the Employee will be affected in any way by
the Plan, this SAR or related instruments except as specifically provided therein. Neither the
establishment of the Plan nor this SAR will be construed as conferring any legal rights upon the
Employee for a continuation of employment, nor will it interfere with the right of the Company or
any Affiliate to discharge the Employee and to treat him or her without regard to the effect that
treatment might have upon him or her as an Employee.
10.
Employee to Have No Rights as a Stockholder
. The Employee will have no rights as
a stockholder with respect to any Shares subject to the SAR prior to the date on which he or she is
recorded as the holder of those Shares on the records of the Company.
11.
No Deferral Rights
. Notwithstanding anything in Article 12 of the Plan to the
contrary, there shall be no deferral of payment, delivery or receipt of any amounts hereunder.
12.
Notice
. Any notice or other communication required or permitted hereunder must be
in writing and must be delivered personally, or sent by certified, registered or express mail,
postage prepaid. Any such notice will be deemed given when so delivered personally or, if mailed,
three days after the date of deposit in the United States mail, in the case of the Company to 21557
Telegraph Road, Southfield, Michigan, 48033, Attention: General Counsel and, in the case of the
Employee, to the last known address of the Employee in the Companys records.
13.
Governing Law
. This document and the SAR will be construed and enforced in
accordance with, and governed by, the laws of the State of Michigan, determined without regard to
its conflict of law rules.
14.
Plan Document Controls
. The rights granted under this SAR document are in all
respects subject to the provisions of the Plan to the same extent and with the same
B-4
effect as if
they were set forth fully herein. If the terms of this document or the SAR conflict with the terms
of the Plan document, the Plan document will control.
B-5
Annex C Cash-Settled SAR Terms and Conditions
LEAR CORPORATION
2009 LONG-TERM STOCK INCENTIVE PLAN
CASH-SETTLED STOCK APPRECIATION RIGHT TERMS AND CONDITIONS
1.
Definitions
. Any term capitalized herein but not defined will have the meaning set
forth in the Plan.
2.
Term, Vesting and Exercise of the SAR
.
(a) If the Employee remains employed by the Company, the SAR will expire seven years from the
Grant Date. If the Employee terminates employment with the Company before the seventh anniversary
of the Grant Date, his or her right to exercise the SAR after termination of his or her employment
will be only as provided in Section 3.
(b) The SAR will vest and become exercisable as to one-third of the Shares to which the SAR
relates on each of the first three anniversaries of the Grant Date. If the Employee experiences an
End of Service Date, the SAR will vest as to those Shares underlying the SAR, if any, that have not
yet vested but would have vested hereunder if the Employees End of Service Date had been 24 months
following his actual End of Service Date. The Employee will forfeit that portion of the SAR which
has not yet vested or would not have vested in the next 24 months as described in the preceding
sentence. Notwithstanding anything contained herein to the contrary, the right of an Employee to
exercise the SAR will be forfeited if the Committee determines, in its sole discretion, that (i)
the Employee has entered into a business or employment relationship which is detrimentally
competitive with the Company or substantially injurious to the Companys financial interests; or
(ii) the Employee has been discharged from employment with the Company or an Affiliate for Cause.
(c) The SAR may be exercised by written notice to the Company indicating the number of Shares
to which the SAR relates being exercised. When the SAR is vested and exercisable, it may be
exercised in whole at any time or in part from time to time as to any or all full Shares under the
SAR. Notwithstanding the foregoing, the SAR may not be exercised for fewer than 100 Shares at any
one time or, if fewer, all the Shares that are then subject to the SAR.
(d) Any amount due to the Employee upon exercise of the SAR will be paid in cash. The amount
delivered to Employee upon exercise of the SAR will be based on the amount, if any, by which the
Fair Market Value of a Share on the date of exercise exceeds the grant price (Grant Price) of the
SAR. The Employee will not receive a distribution of cash if the Fair Market Value on the date of
exercise does not exceed the Grant Price. The Employees distribution of cash upon exercise of the
SAR will be the aggregate dollar difference between the
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Fair Market Value of a Share on the date of
exercise and the Grant Price for all SARs so
exercised; provided, that the amount delivered to Employee shall be subject to the minimum
withholding tax for supplemental wages.
3.
Termination of Employment
. Subject to the forfeiture provisions in clause 2(b)
above, an Employees right to exercise the SAR after termination of his or her employment will be
only as follows:
(a)
End of Service
. If the Employee experiences an End of Service Date, the SAR will
immediately vest, in accordance with Section 2(b) hereof, as to those Shares underlying the SAR, if
any, that have not yet vested but would have vested hereunder if the Employees End of Service Date
had been 24 months following his actual End of Service Date, and the Employee will have the right
for thirteen months following his or her End of Service Date (but not later than the date on which
the SAR would otherwise expire), to exercise the SAR. If the Employee dies prior to the end of the
thirteen-month period after the End of Service Date, his or her estate will have the right to
exercise the SAR within thirteen months following the Employees End of Service Date (but not later
than the date on which the SAR would otherwise expire). The Employees End of Service Date is
the date of his or her retirement after attaining age 55 and completing ten years of service.
(b)
Disability, Death, Not for Cause or Good Reason Termination
. If an Employees
employment with the Company and all Affiliates shall be terminated for Disability or by the Company
for any reason other than Cause, upon the Employees death or, for an Employee who is a party to an
employment or severance agreement with the Company, by the Employee for Good Reason (as defined in
the Employees employment or severance agreement), the SAR will immediately vest and become
exercisable as to all Shares to which the SAR relates, and the Employee (or in the case of death,
the Employees estate) will have the right for a period of thirteen months following the date of
the termination (but not later than the date on which the SAR would otherwise expire) to exercise
the SAR. For each Employee who is a party to an employment or severance agreement with the
Company, for purposes of this Section 3(b), the term Disability shall mean Incapacity as
defined in such Employees employment or severance agreement, as applicable.
(c)
Other Termination
. If an Employees employment with the Company and all
Affiliates terminates for any reason other than those provided in clauses 3(a) or (b), the Employee
or his or her estate (in the event of his or her death after the Employees termination): (i) may,
within the 30-day period following the termination, exercise the SAR to the extent that it was
vested and exercisable on the date his or her employment terminated; and (ii) will forfeit the SAR
to the extent that it was not vested and exercisable on the date his or her employment terminated.
C-2
4.
Transferability of SAR
. This SAR is transferable only by will or the laws of
descent and distribution, or pursuant to a domestic relations order (as defined in Code Section
414(p)). The SAR will be exercisable during the Employees lifetime only by the Employee or by his
or her guardian or legal representative. The Committee may, in its discretion, require a guardian
or legal representative to supply it with evidence the Committee deems necessary to establish the
authority of the guardian or legal representative to exercise the SAR on behalf of the Employee.
5.
Securities Law Requirements
.
(a) This SAR will not be exercisable in whole or in part, if exercise may, in the opinion of
counsel for the Company, violate the Securities Act of 1933, as amended (or other federal or state
statutes having similar requirements), as it may be in effect at that time, or cause the Company to
violate the terms of Section 4.1 of the Plan.
(b) The SAR is subject to the further requirement that, if at any time the Committee
determines in its discretion that the registration, listing or qualification of the Shares subject
to the SAR under any federal securities law, securities exchange requirements or under any other
applicable law, or the consent or approval of any governmental regulatory body, is necessary as a
condition of, or in connection with, the granting of the SAR, the SAR may not be exercised in whole
or in part, unless the necessary registration, listing, qualification, consent or approval has been
effected or obtained free of any conditions not acceptable to the Committee.
(c) With respect to individuals subject to Section 16 of the Securities Exchange Act of 1934,
as amended (the Exchange Act), transactions under this SAR are intended to comply with all
applicable conditions of Rule 16b-3, or its successors under the Exchange Act. To the extent any
provision of the SAR or action by the Committee fails to so comply, the Committee may determine, to
the extent permitted by law, that the provision or action will be null and void.
6.
No Obligation to Exercise SAR
. The granting of the SAR imposes no obligation upon
the Employee (or upon a transferee of an Employee) to exercise the SAR.
7.
No Limitation on Rights of the Company
. Subject to Sections 4.3 and 15.2 of the
Plan, the grant of the SAR will not in any way affect the right or power of the Company to make
adjustments, reclassification or changes in its capital or business structure, or to merge,
consolidate, dissolve, liquidate, sell or transfer all or any part of its business or assets.
8.
Plan and SAR Not a Contract of Employment
. Neither the Plan nor this SAR is a
contract of employment, and no terms of employment of the Employee will be affected in any way by
the Plan, this SAR or related instruments except as specifically provided therein. Neither the
establishment of the Plan nor this SAR will be construed as conferring any legal rights upon the
Employee for a continuation of employment, nor will it interfere with the right of
C-3
the Company or
any Affiliate to discharge the Employee and to treat him or her without regard to the effect that
treatment might have upon him or her as an Employee.
9.
Employee to Have No Rights as a Stockholder
. The Employee will have no rights as a
stockholder with respect to any Shares subject to the SAR prior to the date on which he or she is
recorded as the holder of those Shares on the records of the Company.
10.
No Deferral Rights
. Notwithstanding anything in Article 12 of the Plan to the
contrary, there shall be no deferral of payment, delivery or receipt of any amounts hereunder.
11.
Notice
. Any notice or other communication required or permitted hereunder must be
in writing and must be delivered personally, or sent by certified, registered or express mail,
postage prepaid. Any such notice will be deemed given when so delivered personally or, if mailed,
three days after the date of deposit in the United States mail, in the case of the Company to 21557
Telegraph Road, Southfield, Michigan, 48033, Attention: General Counsel and, in the case of the
Employee, to the last known address of the Employee in the Companys records.
12.
Governing Law
. This document and the SAR will be construed and enforced in
accordance with, and governed by, the laws of the State of Michigan, determined without regard to
its conflict of law rules.
13.
Plan Document Controls
. The rights granted under this SAR document are in all
respects subject to the provisions of the Plan to the same extent and with the same effect as if
they were set forth fully herein. If the terms of this document or the SAR conflict with the terms
of the Plan document, the Plan document will control.
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Annex D Stock Option Terms and Conditions
LEAR CORPORATION
2009 LONG-TERM STOCK INCENTIVE PLAN
NONTRANSFERABLE NONQUALIFIED STOCK OPTION TERMS AND CONDITIONS
1.
Definitions
. Any term capitalized herein but not defined will have the meaning set
forth in the Plan.
2.
Term, Vesting and Exercise of the Stock Option
.
(a) If the Employee remains employed by the Company, the Option will expire seven years from
the Grant Date. If the Employee terminates employment with the Company before the seventh
anniversary of the Grant Date, his or her right to exercise the Option after termination of his or
her employment will be only as provided in Section 3.
(b) The Option will vest and become exercisable as to one-third of the Shares to which the
Option relates on each of the first three anniversaries of the Grant Date. If the Employee
experiences an End of Service Date, the Option will vest as to those Shares underlying the Option,
if any, that have not yet vested but would have vested hereunder if the Employees End of Service
Date had been 24 months following his actual End of Service Date. The Employee will forfeit that
portion of the Option which has not yet vested or would not have vested in the next 24 months as
described in the preceding sentence. Notwithstanding anything contained herein to the contrary,
the right of an Employee to exercise the Option will be forfeited if the Committee determines, in
its sole discretion, that (i) the Employee has entered into a business or employment relationship
which is detrimentally competitive with the Company or substantially injurious to the Companys
financial interests; or (ii) the Employee has been discharged from employment with the Company or
an Affiliate for Cause.
(c) The Option may be exercised by written notice to the Company indicating the number of
Shares being purchased. The notice must be signed by the Employee and must be accompanied by full
payment of the Exercise Price in accordance with Section 4. When the Option is vested and
exercisable, it may be exercised in whole at any time or in part from time to time as to any or all
full Shares under the Option. Notwithstanding the foregoing, the Option may not be exercised for
fewer than 100 Shares at any one time or, if fewer, all the Shares that are then subject to the
Option.
3.
Termination of Employment
. Subject to the forfeiture provisions in clause 2(b)
above, an Employees right to exercise the Option after termination of his or her employment will
be only as follows:
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(a)
End of Service
. If the Employee experiences an End of Service Date, the Option
will immediately vest, in accordance with Section 2(b) hereof, as to those Shares
underlying the Option, if any, that have not yet vested but would have vested hereunder if the
Employees End of Service Date had been 24 months following his actual End of Service Date, and the
Employee will have the right for thirteen months following his or her End of Service Date (but not
later than the date on which the Option would otherwise expire), to exercise the Option. If the
Employee dies prior to the end of the thirteen-month period after the End of Service Date, his or
her estate will have the right to exercise the Option within thirteen months following the
Employees End of Service Date (but not later than the date on which the Option would otherwise
expire). The Employees End of Service Date is the date of his or her retirement after attaining
age 55 and completing ten years of service.
(b)
Disability, Death, Not for Cause, or Good Reason Termination
. If an Employees
employment with the Company and all Affiliates shall be terminated for Disability or by the Company
for any reason other than Cause, upon the Employees death or, for an Employee who is a party to an
employment or severance agreement with the Company, by the Employee for Good Reason (as defined in
the Employees employment or severance agreement), the Option will immediately vest and become
exercisable as to all Shares to which the Option relates, and the Employee (or in the case of
death, the Employees estate) will have the right for a period of thirteen months following the
date of the termination (but not later than the date on which the Option would otherwise expire) to
exercise the Option. For each Employee who is a party to an employment or severance agreement with
the Company, for purposes of this Section 3(b), the term Disability shall mean Incapacity as
defined in such Employees employment or severance agreement, as applicable.
(c)
Other Termination
. If an Employees employment with the Company and all
Affiliates terminates for any reason other than those provided in clauses 3(a) or (b), the Employee
or his or her estate (in the event of his or her death after the Employees termination): (i) may,
within the 30-day period following the termination, exercise the Option to the extent that it was
vested and exercisable on the date his or her employment terminated; and (ii) will forfeit the
Option to the extent that it was not vested and exercisable on the date his or her employment
terminated.
4.
Medium and Time of Payment
.
(a) The Exercise Price must be paid in United States dollars. The Exercise Price may be paid
in cash, by certified check, by cashiers check, with Shares, or using any combination of those
forms of payment, or by means of a cashless exercise or by any other means the Committee determines
to be consistent with the Plans purpose and applicable law, in accordance with the terms of
Section 6.7 of the Plan. A certified or cashiers check used to pay all or part of the Exercise
Price must be made payable to the order of the Company at the time of purchase.
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(b) Any withholding tax, up to the minimum withholding requirement for supplemental wages may
be paid with Shares issuable to the Employee upon exercise under this Option. Shares used to
satisfy the Exercise Price and/or any minimum required withholding tax will be valued at their Fair
Market Value as of the date of exercise.
5.
Transferability of Option and Shares Acquired Upon Exercise of Option
. This Option
is transferable only by will or the laws of descent and distribution, or pursuant to a domestic
relations order (as defined in Code Section 414(p)). The Option will be exercisable during the
Employees lifetime only by the Employee or by his or her guardian or legal representative. The
Committee may, in its discretion, require a guardian or legal representative to supply it with
evidence the Committee deems necessary to establish the authority of the guardian or legal
representative to exercise the Option on behalf of the Employee. Except as limited by applicable
securities laws and the provisions of Section 6 hereof, Shares acquired upon exercise of this
Option will be freely transferable.
6.
Securities Law Requirements
.
(a) If required by the Company, the notice of exercise of the Option must be accompanied by
the Employees written representation: (i) that the stock being acquired is purchased for
investment and not for resale or with a view to its distribution; (ii) acknowledging that the stock
has not been registered under the Securities Act of 1933, as amended (the 1933 Act); and (iii)
agreeing that the stock may not be sold or transferred unless either there is an effective
Registration Statement for it under the 1933 Act, or in the opinion of counsel for the Company, the
sale or transfer will not violate the 1933 Act. This Option will not be exercisable in whole or in
part, nor will the Company be obligated to sell or issue any Shares subject to the Option, if
exercise and sale (or issuance) may, in the opinion of counsel for the Company, violate the 1933
Act (or other federal or state statutes having similar requirements), as it may be in effect at
that time, or cause the Company to violate the terms of Section 4.1 of the Plan.
(b) The Option is subject to the further requirement that, if at any time the Committee
determines in its discretion that the registration, listing or qualification of the Shares subject
to the Option under any federal securities law, securities exchange requirements or under any other
applicable law, or the consent or approval of any governmental regulatory body, is necessary as a
condition of, or in connection with, the granting of the Option or the issuance of Shares under it,
the Option may not be exercised in whole or in part, unless the necessary registration, listing,
qualification, consent or approval has been effected or obtained free of any conditions not
acceptable to the Committee.
(c) No person who acquires Shares pursuant to this Option may, during any period of time that
person is an affiliate of the Company (within the meaning of the rules and regulations of the
Securities and Exchange Commission under the 1933 Act) sell the Shares, unless the offer and sale
is made pursuant to (i) an effective registration statement under the 1933 Act, which is current
and includes the Shares to be sold, or (ii) an appropriate exemption from the registration
requirements of the 1933 Act, such as that set forth in Rule 144 promulgated
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under the 1933 Act.
With respect to individuals subject to Section 16 of the Exchange Act, transactions under this
Option are intended to comply with all applicable conditions of Rule 16b-3, or its successors under
the Exchange Act. To the extent any provision of the Option or action by the Committee fails to so
comply, the Committee may determine, to the extent permitted by law, that the provision or action
will be null and void.
7.
No Obligation to Exercise Option
. The granting of the Option imposes no obligation
upon the Employee (or upon a transferee of an Employee) to exercise the Option.
8.
No Limitation on Rights of the Company
. Subject to Sections 4.3 and 15.2 of the
Plan, the grant of the Option will not in any way affect the right or power of the Company to make
adjustments, reclassification or changes in its capital or business structure, or to merge,
consolidate, dissolve, liquidate, sell or transfer all or any part of its business or assets.
9.
Plan and Option Not a Contract of Employment
. Neither the Plan nor this Option is
a contract of employment, and no terms of employment of the Employee will be affected in any way by
the Plan, this Option or related instruments except as specifically provided therein. Neither the
establishment of the Plan nor this Option will be construed as conferring any legal rights upon the
Employee for a continuation of employment, nor will it interfere with the right of the Company or
any Affiliate to discharge the Employee and to treat him or her without regard to the effect that
treatment might have upon him or her as an Employee.
10.
Employee to Have No Rights as a Stockholder
. The Employee will have no rights as
a stockholder with respect to any Shares subject to the Option prior to the date on which he or she
is recorded as the holder of those Shares on the records of the Company. The Employee will not
have the rights of a stockholder until he or she has paid the Exercise Price in full.
11.
No Deferral Rights
. Notwithstanding anything in Article 12 of the Plan to the
contrary, there shall be no deferral of payment, delivery or receipt of any amounts hereunder.
12.
Notice
. Any notice or other communication required or permitted hereunder must be
in writing and must be delivered personally, or sent by certified, registered or express mail,
postage prepaid. Any such notice will be deemed given when so delivered personally or, if mailed,
three days after the date of deposit in the United States mail, in the case of the Company to 21557
Telegraph Road, Southfield, Michigan, 48033, Attention: General Counsel and, in the case of the
Employee, to the last known address of the Employee in the Companys records.
13.
Governing Law
. This document and the Option will be construed and enforced in
accordance with, and governed by, the laws of the State of Michigan, determined without regard to
its conflict of law rules.
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14.
Plan Document Controls
. The rights granted under this Option document are in all
respects subject to the provisions of the Plan to the same extent and with the same effect as if
they were set forth fully herein. If the terms of this document or the Option conflict with the
terms of the Plan document, the Plan document will control.
D-5