exv10w1



 





Exhibit 10.1




 

 











CREDIT AGREEMENT




dated as of




November 7, 2007




among




BRUSH ENGINEERED MATERIALS INC.




WILLIAMS ADVANCED MATERIALS (NETHERLANDS) B.V.




The Other Foreign Subsidiary Borrowers Party Hereto




The Lenders Party Hereto




RBS CITIZENS, NATIONAL ASSOCIATION and KEYBANK NATIONAL ASSOCIATION

as Co-Documentation Agents




FIFTH THIRD BANK and LASALLE BANK NATIONAL ASSOCIATION

as Co-Syndication Agents




and




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

as Administrative Agent




 






J.P. MORGAN SECURITIES INC.

as Sole Bookrunner and Sole Lead Arranger




 

 
















 












TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE I Definitions	 	 	 	 
	 
	 	 	 	 	 	 
	Defined Terms	 	 	1	 
	SECTION 1.01.
	 	Classification of Loans and Borrowings	 	 	20	 
	SECTION 1.02.
	 	Terms Generally	 	 	20	 
	SECTION 1.03.
	 	Accounting Terms; GAAP	 	 	21	 
	 
	 	 	 	 	 	 
	ARTICLE II The Credits	 	 	21	 
	 
	 	 	 	 	 	 
	SECTION 2.01.
	 	Commitments	 	 	21	 
	SECTION 2.02.
	 	Loans and Borrowings	 	 	21	 
	SECTION 2.03.
	 	Requests for Revolving Borrowings	 	 	22	 
	SECTION 2.04.
	 	Determination of Dollar Amounts	 	 	23	 
	SECTION 2.05.
	 	Swingline Loans	 	 	23	 
	SECTION 2.06.
	 	Letters of Credit	 	 	24	 
	SECTION 2.07.
	 	Funding of Borrowings	 	 	28	 
	SECTION 2.08.
	 	Interest Elections	 	 	29	 
	SECTION 2.09.
	 	Termination and Reduction of Commitments	 	 	30	 
	SECTION 2.10.
	 	Repayment of Loans; Evidence of Debt	 	 	31	 
	SECTION 2.11.
	 	Prepayment of Loans	 	 	31	 
	SECTION 2.12.
	 	Fees	 	 	32	 
	SECTION 2.13.
	 	Interest	 	 	33	 
	SECTION 2.14.
	 	Alternate Rate of Interest	 	 	34	 
	SECTION 2.15.
	 	Increased Costs	 	 	34	 
	SECTION 2.16.
	 	Break Funding Payments	 	 	35	 
	SECTION 2.17.
	 	Taxes	 	 	36	 
	SECTION 2.18.
	 	Payments Generally; Allocations of Proceeds; Pro Rata Treatment; Sharing of Set-offs	 	 	37	 
	SECTION 2.19.
	 	Mitigation Obligations; Replacement of Lenders	 	 	39	 
	SECTION 2.20.
	 	Expansion Option	 	 	39	 
	SECTION 2.21.
	 	Market Disruption	 	 	40	 
	SECTION 2.22.
	 	Judgment Currency	 	 	41	 
	SECTION 2.23.
	 	Designation of Foreign Subsidiary Borrowers	 	 	41	 
	 
	 	 	 	 	 	 
	ARTICLE III Representations and Warranties	 	 	42	 
	 
	 	 	 	 	 	 
	SECTION 3.01.
	 	Organization; Powers; Subsidiaries	 	 	42	 
	SECTION 3.02.
	 	Authorization; Enforceability	 	 	42	 
	SECTION 3.03.
	 	Governmental Approvals; No Conflicts	 	 	42	 
	SECTION 3.04.
	 	Financial Condition; No Material Adverse Change	 	 	43	 
	SECTION 3.05.
	 	Properties	 	 	43	 
	SECTION 3.06.
	 	Litigation and Environmental Matters	 	 	43	 
	SECTION 3.07.
	 	Compliance with Laws	 	 	44	 
















 






Table of Contents

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 3.08.
	 	Investment Company Status	 	 	44	 
	SECTION 3.09.
	 	Taxes	 	 	44	 
	SECTION 3.10.
	 	ERISA	 	 	44	 
	SECTION 3.11.
	 	Disclosure	 	 	44	 
	SECTION 3.12.
	 	Federal Reserve Regulations	 	 	44	 
	SECTION 3.13.
	 	Liens	 	 	44	 
	SECTION 3.14.
	 	No Default	 	 	44	 
	SECTION 3.15.
	 	No Burdensome Restrictions	 	 	44	 
	SECTION 3.16.
	 	Solvency	 	 	44	 
	SECTION 3.17.
	 	Insurance	 	 	45	 
	SECTION 3.18.
	 	Security Interest in Collateral	 	 	45	 
	 
	 	 	 	 	 	 
	ARTICLE IV Conditions	 	 	45	 
	 
	 	 	 	 	 	 
	SECTION 4.01.
	 	Effective Date	 	 	45	 
	SECTION 4.02.
	 	Each Credit Event	 	 	47	 
	SECTION 4.03.
	 	Designation of a Foreign Subsidiary Borrower	 	 	47	 
	 
	 	 	 	 	 	 
	ARTICLE V Affirmative Covenants	 	 	48	 
	 
	 	 	 	 	 	 
	SECTION 5.01.
	 	Financial Statements and Other Information	 	 	48	 
	SECTION 5.02.
	 	Notices of Material Events	 	 	49	 
	SECTION 5.03.
	 	Existence; Conduct of Business	 	 	49	 
	SECTION 5.04.
	 	Payment of Obligations	 	 	50	 
	SECTION 5.05.
	 	Maintenance of Properties; Insurance	 	 	50	 
	SECTION 5.06.
	 	Books and Records; Inspection Rights	 	 	50	 
	SECTION 5.07.
	 	Compliance with Laws and Material Contractual Obligations	 	 	51	 
	SECTION 5.08.
	 	Use of Proceeds	 	 	51	 
	SECTION 5.09.
	 	Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances	 	 	51	 
	 
	 	 	 	 	 	 
	ARTICLE VI Negative Covenants	 	 	52	 
	 
	 	 	 	 	 	 
	SECTION 6.01.
	 	Indebtedness	 	 	52	 
	SECTION 6.02.
	 	Liens	 	 	53	 
	SECTION 6.03.
	 	Fundamental Changes and Asset Sales	 	 	54	 
	SECTION 6.04.
	 	Investments, Loans, Advances, Guarantees and Acquisitions	 	 	55	 
	SECTION 6.05.
	 	Swap Agreements	 	 	57	 
	SECTION 6.06.
	 	Transactions with Affiliates	 	 	57	 
	SECTION 6.07.
	 	Restricted Payments	 	 	57	 
	SECTION 6.08.
	 	Restrictive Agreements	 	 	57	 
	SECTION 6.09.
	 	Subordinated Indebtedness and Amendments to Subordinated Indebtedness Documents	 	 	57	 
	SECTION 6.10.
	 	Sale and Leaseback Transactions	 	 	58	 
	SECTION 6.11.
	 	Financial Covenants	 	 	58	 






ii









 






Table of Contents

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE VII Events of Default	 	 	59
	 
	 	 	 	 	 	 
	ARTICLE VIII The Administrative Agent	 	 	61
	 
	 	 	 	 	 	 
	ARTICLE IX Miscellaneous	 	 	64
	 
	 	 	 	 	 	 
	SECTION 9.01.
	 	Notices	 	 	64
	SECTION 9.02.
	 	Waivers; Amendments	 	 	65
	SECTION 9.03.
	 	Expenses; Indemnity; Damage Waiver	 	 	67
	SECTION 9.04.
	 	Successors and Assigns	 	 	68
	SECTION 9.05.
	 	Survival	 	 	71
	SECTION 9.06.
	 	Counterparts; Integration; Effectiveness	 	 	71
	SECTION 9.07.
	 	Severability	 	 	71
	SECTION 9.08.
	 	Right of Setoff	 	 	71
	SECTION 9.09.
	 	Governing Law; Jurisdiction; Consent to Service of Process	 	 	72
	SECTION 9.10.
	 	WAIVER OF JURY TRIAL	 	 	73
	SECTION 9.11.
	 	Headings	 	 	73
	SECTION 9.12.
	 	Confidentiality	 	 	73
	SECTION 9.13.
	 	USA PATRIOT Act	 	 	73
	SECTION 9.14.
	 	Appointment for Perfection	 	 	74
	 
	 	 	 	 	 	 
	ARTICLE X Cross-Guarantee	 	 	74






iii









 






Table of Contents

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	SCHEDULES:
	 
	Schedule 2.01

	 	—
	 	Commitments	 	 
	Schedule 2.02

	 	—
	 	Mandatory Cost	 	 
	Schedule 2.06

	 	—
	 	Existing Letters of Credit	 	 
	Schedule 3.01

	 	—
	 	Subsidiaries	 	 
	Schedule 6.01

	 	—
	 	Existing Indebtedness	 	 
	Schedule 6.02

	 	—
	 	Existing Liens	 	 
	Schedule 6.04

	 	—
	 	Existing Investments	 	 






EXHIBITS:




	 	 	 	 	 
	Exhibit A

	 	—
	 	Form of Assignment and Assumption
	Exhibit B-1

	 	—
	 	Form of Opinion of U.S. Loan Parties’ Counsel
	Exhibit B-2

	 	—
	 	Form of Opinion of Dutch Borrower’s Counsel
	Exhibit C

	 	—
	 	Form of Increasing Lender Supplement
	Exhibit D

	 	—
	 	Form of Augmenting Lender Supplement
	Exhibit E

	 	—
	 	List of Closing Documents
	Exhibit F-1

	 	—
	 	Form of Borrowing Subsidiary Agreement
	Exhibit F-2

	 	—
	 	Form of Borrowing Subsidiary Termination
	Exhibit G

	 	—
	 	Form of Written Money Transfer Instruction







iv











 





          CREDIT AGREEMENT (this “Agreement”) dated as of November 7, 2007 among BRUSH
ENGINEERED MATERIALS INC., WILLIAMS ADVANCED MATERIALS (NETHERLANDS) B.V., the other FOREIGN
SUBSIDIARY BORROWERS from time to time party hereto, the LENDERS from time to time party hereto,
FIFTH THIRD BANK and LASALLE BANK NATIONAL ASSOCIATION, as Co-Syndication Agents and RBS CITIZENS,
NATIONAL ASSOCIATION and KEYBANK NATIONAL ASSOCIATION, as Co-Documentation Agents and JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent.




          The parties hereto agree as follows:




ARTICLE I




Definitions




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




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




          “Acquisition” means any transaction, or any series of related transactions,
consummated on or after the Effective Date, by which the Company or any Subsidiary (a) acquires any
going business or all or substantially all of the assets of any Person, whether through purchase of
assets, merger or otherwise or (b) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in number of votes) of
the Equity Interests of a Person which has ordinary voting power for the election of directors or
other similar management personnel of a Person (other than Equity Interests having such power only
by reason of the happening of a contingency) or a majority of the outstanding Equity Interests of a
Person.




          “Adjusted LIBO Rate” means, with respect to any Eurocurrency Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of
1%) equal to the sum of (i) (a) the LIBO Rate for such Interest Period multiplied by (b) the
Statutory Reserve Rate plus, without duplication, (ii) in the case of Loans by a Lender
from its office or branch in the United Kingdom, the Mandatory Cost.




          “Administrative Agent” means JPMorgan Chase Bank, National Association (including its
branches and affiliates), in its capacity as administrative agent for the Lenders hereunder.




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




          “Affected Foreign Subsidiary” means any Foreign Subsidiary to the extent such Foreign
Subsidiary acting as a Subsidiary Guarantor would cause a Deemed Dividend Problem or a Financial
Assistance Problem.




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




 









 








          “Aggregate Commitment” means the aggregate of the Commitments of all of the Lenders,
as reduced or increased from time to time pursuant to the terms and conditions hereof. As of the
Effective Date, the Aggregate Commitment is $240,000,000.




          “Agreed Currencies” means (i) Dollars, (ii) euro, (iii) Pounds Sterling, (iv) Japanese
Yen and (v) any other Foreign Currency agreed to by the Administrative Agent and each of the
Lenders.




          “Alternate Base Rate” means, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or
the Federal Funds Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.




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




          “Applicable Pledge Percentage” means 100%, but 65% in the case of a pledge of Equity
Interests of a Foreign Subsidiary to the extent a 100% pledge would cause a Deemed Dividend
Problem.




          “Applicable Rate” means, for any day, with respect to commitment fees payable
hereunder, Eurocurrency Revolving Loans, ABR Revolving Loans or with respect to commissions on
outstanding commercial Letters of Credit payable hereunder, as the case may be, the applicable rate
per annum set forth below under the caption “Commitment Fee Rate”, “Eurocurrency Spread”, “ABR
Spread” or “Commercial L/C Rate”, as the case may be, based upon the Leverage Ratio applicable on
such date:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Commitment	 	Eurocurrency	 	 	 	 	 	Commercial
	 	 	Leverage Ratio:	 	Fee Rate	 	Spread	 	ABR Spread	 	L/C Rate
	Category 1:
	 	< 1.00 to 1.00	 	 	0.125	%	 	 	0.625	%	 	 	0	%	 	 	0.3125	%
	Category 2:
	 	≥ 1.00 to 1.00	 	 	0.15	%	 	 	0.75	%	 	 	0	%	 	 	0.375	%
	 
	 	but	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	< 1.50 to 1.00	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Category 3:
	 	≥ 1.50 to 1.00 but	 	 	0.175	%	 	 	0.875	%	 	 	0	%	 	 	0.4375	%
	 
	 	< 2.00 to 1.00	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Category 4:
	 	≥ 2.00 to 1.00	 	 	0.20	%	 	 	1.00	%	 	 	0	%	 	 	0.50	%
	 
	 	but	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	< 2.50 to 1.00	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Category 5:
	 	≥ 2.50 to 1.00	 	 	0.25	%	 	 	1.25	%	 	 	0.25	%	 	 	0.625	%







     For purposes of the foregoing,




     (i) if at any time the Company fails to deliver the Financials on or before the date
the Financials are due pursuant to Section 5.01, Category 5 shall be deemed applicable for
the period commencing three (3) Business Days after the required date of delivery and ending
on the date which is three (3) Business Days after the Financials are actually delivered,
after which the Category shall be determined in accordance with the table above as
applicable;



2









 






     (ii) adjustments, if any, to the Category then in effect shall be effective three (3)
Business Days after the Administrative Agent has received the applicable Financials (it
being understood and agreed that each change in Category shall apply during the period
commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change); and




     (iii) notwithstanding the foregoing, Category 2 shall be deemed to be applicable until
the Administrative Agent’s receipt of the applicable Financials for the Company’s first full
or partial Fiscal Quarter ending after the Effective Date (unless such Financials
demonstrate that Category 3, 4 or 5 should have been applicable during such period, in which
case such other Category shall be deemed to be applicable during such period) and
adjustments to the Category then in effect shall thereafter be effected in accordance with
the preceding paragraphs.



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




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




          “Augmenting Lender” has the meaning assigned to such term in Section 2.20.




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




          “Banking Services” means each and any of the following bank services provided to the
Company or any Subsidiary by any Lender or any of its Affiliates: (a) commercial credit cards, (b)
stored value cards and (c) treasury management services (including, without limitation, controlled
disbursement, automated clearinghouse transactions, return items, overdrafts and interstate
depository network services).




          “Banking Services Agreement” means any agreement entered into by the Company or any
Subsidiary in connection with Banking Services.




          “Banking Services Obligations” means any and all obligations of the Company or any
Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced
or acquired (including all renewals, extensions and modifications thereof and substitutions
therefor) in connection with Banking Services.




          “Beryllium Contracts” means any and all agreements or other arrangements (however
styled) for the purchase, procurement or other acquisition of Beryllium, in whatever form
(including, without limitation, Beryl ore, Copper Beryllium Master Alloy, Vacuum Cast Beryllium
Ingot, and Vacuum Hot Pressed Beryllium Billet), entered into from time to time by the Company or
any Subsidiary, but only to the extent that the Dollar Amount of any Indebtedness related thereto
does not exceed $20,000,000 during any consecutive 12-month period.




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




          “Borrower” means the Company or any Foreign Subsidiary Borrower.




3









 








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




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




          “Borrowing Subsidiary Agreement” means a Borrowing Subsidiary Agreement substantially
in the form of Exhibit F-1.




          “Borrowing Subsidiary Termination” means a Borrowing Subsidiary Termination
substantially in the form of Exhibit F-2.




          “Burdensome Restrictions” means any consensual encumbrance or restriction of the type
described in clause (a) or (b) of Section 6.08 (without giving effect to any exceptions described
in clauses (i) through (iv) of such Section 6.08).




          “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurocurrency Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in Agreed Currencies
in the London interbank market or the principal financial center of the country in which payment or
purchase of such Agreed Currency can be made (and, if the Borrowings or LC Disbursements which are
the subject of a borrowing, drawing, payment, reimbursement or rate selection are denominated in
euro, the term “Business Day” shall also exclude any day on which the TARGET payment system is not
open for the settlement of payments in euro).




          “Capital Expenditures” means, without duplication, any expenditure of money for any
purchase or other acquisition or development of any asset which would be classified as a fixed or
capital asset on a consolidated balance sheet of the Company and its Subsidiaries prepared in
accordance with GAAP.




          “Capitalized Lease” of a Person means any lease of Property by such Person as lessee
which would be capitalized on a balance sheet of such Person prepared in accordance with GAAP.




          “Capitalized Lease Obligations” of a Person means the aggregate amount of the
obligations of such Person under Capitalized Leases which would be shown as a liability on a
balance sheet of such Person prepared in accordance with GAAP.




          “Cash Equivalent Investments” means (a) direct obligations of, or fully guaranteed by,
the U.S. maturing within one year from the date of acquisition thereof, (b) commercial paper rated
A-1 or better by S&P or P-1 or better by Moody’s, (c) demand deposit accounts maintained in the
ordinary course of business, and (d) certificates of deposit issued by and time deposits with any
Lender or any commercial bank (whether domestic or foreign) having capital and surplus in excess of
$100,000,000; provided that, in each case, the same provides for payment of both principal and
interest (and not principal alone or interest alone) and is not subject to any contingency
regarding the payment of principal or interest.




          “Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof),




4









 







of Equity Interests representing more than 20% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Company; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the Company by Persons
who were neither (i) nominated by the board of directors of the Company nor (ii) appointed by
directors so nominated; or (c) the
occurrence of a change in control, or other similar provision, as defined in any agreement or
instrument evidencing any Material Indebtedness (triggering a default or mandatory prepayment,
which default or mandatory prepayment has not been waived in writing).




          “Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending
office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.




          “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.




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




          “Co-Documentation Agent” means each of RBS Citizens, National Association and KeyBank
National Association in its capacity as co-documentation agent for the credit facility evidenced by
this Agreement.




          “Collateral” means any and all property owned, leased or operated by a Person covered
by the Collateral Documents and any and all other property of any Loan Party, now existing or
hereafter acquired, that may at any time be or become subject to a security interest or Lien in
favor of Administrative Agent, on behalf of itself and the Holders of Secured Obligations, to
secure the Secured Obligations.




          “Collateral Documents” means, collectively, the Security Agreement, the Mortgages and
all other agreements, instruments and documents executed in connection with this Agreement that are
intended to create or evidence Liens to secure the Secured Obligations, including, without
limitation, all other security agreements, pledge agreements, mortgages, deeds of trust, loan
agreements, notes, guarantees, subordination agreements, pledges, powers of attorney, consents,
assignments, contracts, fee letters, notices, leases, financing statements and all other written
matter whether heretofore, now, or hereafter executed by the Company or any of its Subsidiaries and
delivered to the Administrative Agent.




          “Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced or terminated from time to time pursuant
to Section 2.09, (b) increased from time to time pursuant to Section 2.20 and (c) reduced or
increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.
The initial amount of each Lender’s Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, as
applicable.




          “Company” means Brush Engineered Materials Inc., an Ohio corporation.




          “Computation Date” is defined in Section 2.04.




5









 








          “Consolidated EBITDA” means Consolidated Net Income plus, to the extent
deducted from revenues in determining Consolidated Net Income, (a) Consolidated Interest Expense,
(b) Consolidated Tax Expense, (c) depreciation, (d) amortization, (e) depletion expense and (f)
nonrecurring
losses incurred other than in the ordinary course of business, minus, to the extent
included in Consolidated Net Income, nonrecurring gains realized other than in the ordinary course
of business, all calculated for the Company and its Subsidiaries on a consolidated basis.




          “Consolidated Fixed Charges” means, with reference to any period, without duplication,
Consolidated Interest Expense to the extent paid in cash during such period, plus scheduled
principal payments on Indebtedness made during such period, plus Capitalized Lease payments
made during such period, all calculated for the Company and its Subsidiaries on a consolidated
basis.




          “Consolidated Funded Debt” means all Indebtedness for borrowed money and Capitalized
Leases, including, without limitation, current, long-term and Subordinated Indebtedness, for the
Company and its Subsidiaries on a consolidated basis; provided that, for purposes of this
definition, obligations under the following will not be considered in calculating Consolidated
Funded Debt: (a) obligations under Swap Agreements, (b) Permitted Precious Metals Agreements (up to
a maximum outstanding amount of $180,000,000), (c) the Beryllium Contracts, and (d) Indebtedness
under any Sale and Leaseback Transaction.




          “Consolidated Interest Expense” means, with reference to any period, the interest
expense of the Company and its Subsidiaries calculated on a consolidated basis for such period (but
not including any up-front fees paid in connection with this Agreement).




          “Consolidated Net Income” means, with reference to any period, the net income (or
loss) of the Company and its Subsidiaries calculated on a consolidated basis for such period.




          “Consolidated Net Worth” means, on any date, all amounts that would be included under
stockholders’ equity on a consolidated balance sheet of the Company and its consolidated
Subsidiaries, as determined on a consolidated basis in accordance with GAAP.




          “Consolidated Tax Expense” means, with reference to any period, the tax expense of the
Company and its Subsidiaries calculated on a consolidated basis for such period.




          “Consolidated Total Assets” means, as of the date of any determination thereof, total
assets of the Company and its Subsidiaries calculated in accordance with GAAP on a consolidated
basis as of such date.




          “Contingent Obligation” of a Person means any agreement, undertaking or arrangement by
which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds
for the payment of, or otherwise becomes or is contingently liable upon, the obligation or
liability of any other Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating agreement, take-or-pay
contract or the obligations of any such Person as general partner of a partnership with respect to
the liabilities of the partnership.




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




6









 








          “Co-Syndication Agent” means each of Fifth Third Bank and LaSalle Bank National
Association in its capacity as co-syndication agent for the credit facility evidenced by this
Agreement.




          “Country Risk Event” means:




          (i) any law or action by any Governmental Authority in any Borrower’s or Letter of Credit
beneficiary’s country which has the effect of:





     (a) changing the obligations under the relevant Letter of Credit, the Credit
Agreement or any of the other Loan Documents as originally agreed or otherwise
creating any additional liability, cost or expense to the Issuing Bank, the Lenders
or the Administrative Agent,




     (b) changing the ownership or control by such Borrower or Letter of Credit
beneficiary of its business, or




     (c) preventing or restricting the conversion into or transfer of the applicable
Agreed Currency;



          (ii) force majeure; or




          (iii) any similar event



which, in relation to (i), (ii) and (iii), directly or indirectly, prevents or restricts the
payment or transfer of any amounts owing under the relevant Letter of Credit in the applicable
Agreed Currency to the Administrative Agent or the Issuing Bank and freely available to the
Administrative Agent or the Issuing Bank.




          “Credit Event” means a Borrowing, the issuance of a Letter of Credit, an LC
Disbursement or any of the foregoing.




          “Deemed Dividend Problem” means, with respect to any Foreign Subsidiary, such Foreign
Subsidiary’s accumulated and undistributed earnings and profits being deemed to be repatriated to
the Company or the applicable parent Domestic Subsidiary for U.S. federal income tax purposes and
the effect of such repatriation causing materially adverse tax consequences to the Company or such
parent Domestic Subsidiary, in each case as determined by the Company in its commercially
reasonable judgment acting in good faith and in consultation with its legal and tax advisors.




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




          “Dollar Amount” of any currency at any date shall mean (i) the amount of such currency
if such currency is Dollars or (ii) the equivalent in such currency of Dollars if such currency is
a Foreign Currency, calculated on the basis of the Exchange Rate for such currency, on or as of the
most recent Computation Date provided for in Section 2.04.




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




          “Domestic Subsidiary” means a Subsidiary organized under the laws of a jurisdiction
located in the United States of America.




7









 








          “Dutch Borrower” means Williams Advanced Materials (Netherlands) B. V., a besloten
vennootschap met beperkte aansprakelijkheid incorporated under the laws of the Netherlands having
its corporate seat (statutaire zetel) in Amsterdam, the Netherlands.




          “Dutch Financial Supervision Act” means the Dutch Financial Supervision Act 2007 (Wet
op het Financieel Toezicht 2007), as amended from time to time.




          “Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).




          “Eligible Foreign Subsidiary” means any Foreign Subsidiary that is approved from time
to time by the Administrative Agent, which approval shall not be unreasonably withheld.




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




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




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




          “Equivalent Amount” of any currency with respect to any amount of Dollars at any date
shall mean the equivalent in such currency of such amount of Dollars, calculated on the basis of
the arithmetical mean of the buy and sell spot rates of exchange of the Administrative Agent for
such other currency at 11:00 a.m., London time, on the date on or as of which such amount is to be
determined.




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.




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




          “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Company or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Company or any ERISA Affiliate from the PBGC or a
plan administrator of




8









 







any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the Company or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal of the Company or
any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by the Company
or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition upon the Company or any of its ERISA Affiliates of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.




          “EU” means the European Union.




          “euro” and/or “EUR” means the single currency of the participating member
states of the EU.




          “Eurocurrency”, when used in reference to a currency means an Agreed Currency and,
when used in reference to any Loan or Borrowing, means that such Loan, or the Loans comprising such
Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate.




          “Eurocurrency Payment Office” of the Administrative Agent shall mean, for each Foreign
Currency, the office, branch, affiliate or correspondent bank of the Administrative Agent for such
currency as specified from time to time by the Administrative Agent to the Company and each Lender.




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




          “Exchange Rate” means, on any day, with respect to any Foreign Currency, the rate at
which such Foreign Currency may be exchanged into Dollars, as set forth at approximately 11:00
a.m., Local Time, on such date on the Reuters World Currency Page for such Foreign Currency. In
the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate with
respect to such Foreign Currency shall be determined by reference to such other publicly available
service for displaying exchange rates as may be reasonably selected by the Administrative Agent or,
in the event no such service is selected, such Exchange Rate shall instead be calculated on the
basis of the arithmetical mean of the buy and sell spot rates of exchange of the Administrative
Agent for such Foreign Currency on the London market at 11:00 a.m., Local Time, on such date for
the purchase of Dollars with such Foreign Currency, for delivery two Business Days later;
provided, that if at the time of any such determination, for any reason, no such spot rate
is being quoted, the Administrative Agent, after consultation with the Company, may use any
reasonable method it deems appropriate to determine such rate, and such determination shall be
conclusive absent manifest error.




          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Company hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by
the United States of America or any other Governmental Authority, including the jurisdiction under
the laws of which such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable lending office is located, (b) any branch profits
taxes imposed by the United States of America or any other Governmental Authority, including any
similar tax imposed by any other jurisdiction in which the Company or any Subsidiary is located
and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the
Company under Section 2.19(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a
new lending office) or is attributable to such Foreign Lender’s failure to comply with Section
2.17(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new lending office (or assignment), to




9









 







receive additional amounts from
the Company with respect to such withholding tax pursuant to Section 2.17(a).




          “Existing Letters of Credit” is defined in Section 2.06(a).




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




          “Financial Assistance Problem” means, with respect to any Foreign Subsidiary, the
inability of such Foreign Subsidiary to become a Subsidiary Guarantor or to permit its Equity
Interests from being pledged pursuant to a pledge agreement on account of legal or financial
limitations imposed by the jurisdiction of organization of such Foreign Subsidiary or other
relevant jurisdictions having authority over such Foreign Subsidiary, in each case as determined by
the Company in its commercially reasonable judgment acting in good faith and in consultation with
its legal and tax advisors.




          “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Company.




          “Financials” means the annual or quarterly financial statements, and accompanying
certificates and other documents, of the Company and its Subsidiaries required to be delivered
pursuant to Section 5.01(a) or 5.01(b).




          “First Tier Foreign Subsidiary” means each Foreign Subsidiary with respect to which
any one or more of the Company and its Domestic Subsidiaries directly owns or controls more than
50% of such Foreign Subsidiary’s issued and outstanding Equity Interests.




          “Fiscal Quarter” means any of the quarterly accounting periods of the Company.




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




          “Fixed Charge Coverage Ratio” means, the ratio, determined as of the end of each
Fiscal Quarter of the Company for the then most-recently ended four Fiscal Quarters of (a)
Consolidated EBITDA, minus cash taxes paid, minus the unfinanced portion of Capital
Expenditures, minus cash dividends, plus cash tax refunds to (b) Consolidated Fixed
Charges, all calculated for the Company and its Subsidiaries on a consolidated basis.




          “Foreign Currencies” means currencies other than Dollars.




          “Foreign Currency LC Exposure” means, at any time, the sum of (a) the Dollar Amount of
the aggregate undrawn and unexpired amount of all outstanding Foreign Currency Letters of Credit at
such time plus (b) the aggregate principal Dollar Amount of all LC Disbursements in respect
of Foreign Currency Letters of Credit that have not yet been reimbursed at such time.




          “Foreign Currency Letter of Credit” means a Letter of Credit denominated in a Foreign
Currency.




10









 








          “Foreign Currency Sublimit” means $20,000,000.




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




          “Foreign Subsidiary” means any Subsidiary which is not a Domestic Subsidiary.




          “Foreign Subsidiary Borrower” means (i) the Dutch Borrower and (ii) any other Eligible
Foreign Subsidiary that has been designated as a Foreign Subsidiary Borrower pursuant to Section
2.23 and that has not ceased to be a Foreign Subsidiary Borrower pursuant to such Section.




          “Foreign Subsidiary Borrower Sublimit” means $20,000,000.




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




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




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




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




          “Holders of Secured Obligations” means the holders of the Secured Obligations from
time to time and shall include (i) each Lender and the Issuing Bank in respect of its Loans and LC
Exposure respectively, (ii) the Administrative Agent, the Issuing Bank and the Lenders in respect
of all other present and future obligations and liabilities of the Company and each Subsidiary of
every type and description arising under or in connection with this Agreement or any other Loan
Document, (iii) each Lender and affiliate of such Lender in respect of Swap Agreements and Banking
Services Agreements entered into with such Person by the Company or any Subsidiary, (iv) each
indemnified party under Section 9.03 in respect of the obligations and liabilities of the Borrowers
to such Person hereunder and under the other Loan Documents, and (v) their respective successors
and (in the case of a Lender, permitted) transferees and assigns.




11









 








          “Hostile Acquisition” means (a) the Acquisition of the Equity Interests of a Person
through a tender offer or similar solicitation of the owners of such Equity Interests which has not
been approved (prior to such Acquisition) by the board of directors (or any other applicable
governing body) of
such Person or by similar action if such Person is not a corporation and (b) any such
Acquisition as to which such approval has been withdrawn.




          “Increasing Lender” has the meaning assigned to such term in Section 2.20.




          “Incremental Term Loan” has the meaning assigned to such term in Section 2.20.




          “Incremental Term Loan Amendment” has the meaning assigned to such term in Section
2.20.




          “Indebtedness” of a Person means, without duplication, such Person’s (a) obligations
for borrowed money, (b) obligations representing the deferred purchase price of Property or
services (other than accounts payable arising in the ordinary course of such Person’s business
payable on terms customary in the trade), (c) obligations, whether or not assumed, secured by Liens
or payable out of the proceeds or production from Property now or hereafter owned or acquired by
such Person, (d) obligations which are evidenced by notes, acceptances, or other similar
instruments, (e) obligations of such Person to purchase securities or other Property arising out of
or in connection with the sale of the same or substantially similar securities or Property or any
other Off-Balance Sheet Liabilities, (f) Capitalized Lease Obligations, (g) Contingent Obligations
for which the underlying transaction constitutes Indebtedness under this definition, (h) the stated
face amount of all letters of credit or bankers’ acceptances issued for the account of such Person
and, without duplication, all reimbursement obligations with respect to such issued letters of
credit, (i) any and all obligations, contingent or otherwise, whether now existing or hereafter
arising, under or in connection with Swap Agreements, including, without limitation, Net
Mark-to-Market Exposure, and (j) obligations of such Person under any Sale and Leaseback
Transaction.




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




          “Information Memorandum” means the Confidential Information Memorandum dated September
2007 relating to the Company and the Transactions.




          “Intercreditor Agreements” means (a) that certain Intercreditor Agreement dated as of
the date hereof by and among the Administrative Agent, on behalf of itself and the Lenders, and The
Bank of Nova Scotia, on behalf of itself and as collateral agent on behalf of other consignors of
Precious Metal and (b) every other intercreditor agreement related to the Loans entered into by the
Administrative Agent, on behalf of itself and the other Lenders, on or after the Effective Date.




          “Interest Election Request” means a request by the applicable Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.08.




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




12









 








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




          “Investment” of a Person means any (a) loan or advance, (b) extension of credit (other
than accounts receivable arising in the ordinary course of business on terms customary in the
trade), (c) contribution of capital by such Person, (d) stocks, bonds, mutual funds, partnership
interests, notes, debentures, securities or other Equity Interest owned by such Person, (e) any
deposit accounts and certificate of deposit owned by such Person, and (f) structured notes,
derivative financial instruments and other similar instruments or contracts owned by such Person.




          “Issuing Bank” means JPMorgan Chase Bank, National Association, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section
2.06(i). The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be
issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.




          “Japanese Yen” means the lawful currency of Japan.




          “LC Collateral Account” has the meaning assigned to such term in Section 2.06(j).




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




          “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn Dollar Amount
of all outstanding Letters of Credit at such time plus (b) the aggregate Dollar Amount of
all LC Disbursements that have not yet been reimbursed by or on behalf of the Company at such time.
The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC
Exposure at such time.




          “Lenders” means the Persons listed on Schedule 2.01 and any other Person that
shall have become a Lender hereunder pursuant to Section 2.20 or pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment
and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline
Lender.




          “Letter of Credit” means any letter of credit issued pursuant to this Agreement.




          “Leverage Ratio” means, the ratio, determined as of the end of each Fiscal Quarter of
the Company for the then most-recently ended four Fiscal Quarters of (a) Consolidated Funded Debt
to (b) Consolidated EBITDA.




13









 








          “LIBO Rate” means, with respect to any Eurocurrency Borrowing for any Interest Period,
the rate appearing on, in the case of Dollars, Reuters BBA Libor Rates Page 3750 and, in the case
of any Foreign Currency, the appropriate page of such service which displays British Bankers
Association
Interest Settlement Rates for deposits in such Foreign Currency (or, in each case, on any
successor or substitute page of such Service, or any successor to or substitute for such Service,
providing rate quotations comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to deposits in the relevant Agreed Currency in the London interbank
market) at approximately 11:00 a.m., London time, two (2) Business Days prior to (or, in the case
of Loans denominated in Pounds Sterling, on the day of) the commencement of such Interest Period,
as the rate for deposits in the relevant Agreed Currency with a maturity comparable to such
Interest Period. In the event that such rate is not available at such time for any reason, then
the “LIBO Rate” with respect to such Eurocurrency Borrowing for such Interest Period shall
be the rate at which deposits in the relevant Agreed Currency in an Equivalent Amount of $5,000,000
and for a maturity comparable to such Interest Period are offered by the principal London office of
the Administrative Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such
Interest Period.




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




          “Loan Documents” means this Agreement, each Borrowing Subsidiary Agreement, each
Borrowing Subsidiary Termination, any promissory notes issued pursuant to Section 2.10(e) of this
Agreement, any Letter of Credit applications, the Collateral Documents, the Subsidiary Guaranty,
and all other agreements, instruments, documents and certificates identified in Section 4.01
executed and delivered to, or in favor of, the Administrative Agent or any Lenders and including
all other pledges, powers of attorney, consents, assignments, contracts, notices, letter of credit
agreements and all other written matter whether heretofore, now or hereafter executed by or on
behalf of any Loan Party, and delivered to the Administrative Agent or any Lender in connection
with the Agreement or the transactions contemplated thereby. Any reference in the Agreement or any
other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto,
and all amendments, restatements, supplements or other modifications thereto, and shall refer to
the Agreement or such Loan Document as the same may be in effect at any and all times such
reference becomes operative.




          “Loan Parties” means, collectively, the Borrowers and the Subsidiary Guarantors.




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




          “Local Time” means (i) Chicago time in the case of a Loan, Borrowing or LC
Disbursement denominated in Dollars to, or for the account of, the Company and (ii) local time at
the place of the relevant Loan, Borrowing or LC Disbursement (or such earlier local time as is
necessary for the relevant funds to be received and transferred to the Administrative Agent for
same day value on the date the relevant reimbursement obligation is due) in the case of a Loan,
Borrowing or LC Disbursement which is denominated in a Foreign Currency or which is to, or for the
account of, a Foreign Subsidiary Borrower.





14









 








          “Mandatory Cost” is described in Schedule 2.02.




          “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
property, condition (financial or otherwise) or prospects of the Company and the 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 and the Lenders thereunder.




          “Material Indebtedness” means any Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the
Company and its Subsidiaries in an aggregate principal amount exceeding $10,000,000 (or the
equivalent thereof in currencies other than Dollars). For purposes of determining Material
Indebtedness, the “principal amount” of the obligations of the Company or any Subsidiary in respect
of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any
netting agreements) that the Company or such Subsidiary would be required to pay if such Swap
Agreement were terminated at such time.




          “Material Subsidiary” means each Subsidiary (i) which, as of the most recent Fiscal
Quarter of the Company, for the period of four consecutive Fiscal Quarters then ended, for which
financial statements have been delivered pursuant to Section 5.01, contributed greater than five
percent (5%) of the Company’s Consolidated EBITDA for such period or (ii) which contributed greater
than five percent (5%) of the Company’s Consolidated Total Assets as of such date; provided
that, if at any time the aggregate amount of the Company’s Consolidated EBITDA or Company’s
Consolidated Total Assets attributable to Subsidiaries (other than Affected Foreign Subsidiaries)
that are not Subsidiary Guarantors exceeds ten percent (10%) of the Company’s Consolidated EBITDA
for any such period or ten percent (10%) of the Company’s Consolidated Total Assets as of the end
of any such Fiscal Quarter, the Company (or, in the event the Company has failed to do so within
ten days, the Administrative Agent) shall designate sufficient Subsidiaries (other than Affected
Foreign Subsidiaries) as “Material Subsidiaries” to eliminate such excess, and such designated
Subsidiaries shall for all purposes of this Agreement constitute Material Subsidiaries.




          “Maturity Date” means November 7, 2012.




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




          “Mortgage” means each mortgage, deed of trust or other agreement which conveys or
evidences a Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent
and the Holders of Secured Obligations, on real property of a Loan Party, including any amendment,
restatement, modification or supplement thereto.




          “Mortgage Instruments” means such title reports, title insurance, opinions of counsel,
surveys, appraisals and environmental reports as are reasonably requested by, and in form and
substance reasonably acceptable to, the Administrative Agent from time to time.




          “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.




          “Net Mark-to-Market Exposure” of a Person means, as of any date of determination, the
excess (if any) of all unrealized losses over all unrealized profits of such Person arising from
Swap Agreements. As used in this definition, “unrealized losses” means the fair market value of
the cost to such Person of replacing such Swap Agreement as of the date of determination (assuming
the Swap Agreement were to be terminated as of that date), and “unrealized profits” means the fair
market value of





15












 




the gain to such Person of replacing such Swap Agreement as of the date of determination (assuming
such Swap Agreement were to be terminated as of that date).




          “New Money Credit Event” means with respect to the Issuing Bank, any increase
(directly or indirectly) in the Issuing Bank’s exposure (whether by way of additional credit or
banking facilities or otherwise, including as part of a restructuring) to any Borrower or any
Governmental Authority in any Borrower’s or any applicable Letter of Credit beneficiary’s country
occurring by reason of (i) any law, action or requirement of any Governmental Authority in such
Borrower’s or such Letter of Credit beneficiary’s country, or (ii) any request in respect of
external indebtedness of borrowers in such Borrower’s or such Letter of Credit beneficiary’s
country applicable to banks generally which conduct business with such borrowers, in each case to
the extent calculated by reference to the aggregate Revolving Credit Exposures outstanding prior to
such increase.




          “Off-Balance Sheet Liability” of a Person means (a) any repurchase obligation or
liability of such Person with respect to accounts or notes receivable sold by such Person, (b) any
indebtedness, liability or obligation under any Sale and Leaseback Transaction to which such Person
is a party which is not a Capitalized Lease, (c) any indebtedness, liability or obligation under
any so-called “synthetic lease” transaction entered into by such Person, or (d) any indebtedness,
liability or obligation arising with respect to any other transaction to which such Person is a
party which is the functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the balance sheets of such Person, but excluding obligations with respect
to Operating Leases.




          “Obligations” means all unpaid principal of and accrued and unpaid interest on the
Loans, all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities
and other obligations of the Loan Parties to the Lenders or to any Lender, the Administrative
Agent, the Issuing Bank or any indemnified party arising under the Loan Documents.




          “Operating Lease” of a Person means any lease of Property (other than a Capitalized
Lease) by such Person as lessee which has an original term (including any required renewals and any
renewals effective at the option of the lessor) of one year or more.




          “Other Taxes” means 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.




          “Overnight Foreign Currency Rate” means, for any amount payable in a Foreign Currency,
the rate of interest per annum as reasonably determined by the Administrative Agent at which
overnight or weekend deposits in the relevant currency (or if such amount due remains unpaid for
more than three Business Days, then for such other period of time as the Administrative Agent may
reasonably elect) for delivery in immediately available and freely transferable funds would be
offered by the Administrative Agent to major banks in the interbank market upon request of such
major banks for the relevant currency as determined above and in an amount comparable to the unpaid
principal amount of the related Credit Event, plus any taxes, levies, imposts, duties, deductions,
charges or withholdings imposed upon, or charged to, the Administrative Agent by any relevant
correspondent bank in respect of such amount in such relevant currency.




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




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




16









 








          “Permitted Liens” is defined in Section 6.02.




          “Permitted Precious Metals Agreements” means precious metals agreements and
arrangements (whether styled as debt, a lease, a consignment or otherwise) entered into from time
to time by the Company or any Subsidiary, but only to the extent that the aggregate Dollar Amount
of the precious metals outstanding thereunder does not exceed $180,000,000. For purposes of this
definition, “precious metals” shall include, without limitation, gold, silver, platinum, palladium
and copper (even though copper is not generally deemed to be a precious metal).




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




          “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Company or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.




          “Pledge Subsidiary” means (i) each Domestic Subsidiary which is a Material Subsidiary
and (ii) each First Tier Foreign Subsidiary which is a Material Subsidiary.




          “Pounds Sterling” means the lawful currency of the United Kingdom.




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




          “Precious Metals” has the meaning set forth in Section 5.09(b).




          “Property” of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person; other assets owned by such Person; and to the extent of such
Person’s interest therein, other assets leased or operated by such Person.




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




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




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




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




17









 








          “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time.




          “Revolving Loan” means a Loan made pursuant to Section 2.01.




          “S&P” means Standard & Poor’s.




          “Sale and Leaseback Transaction” means any sale or other transfer of Property by any
Person with the intent to lease such Property as lessee.




          “Secured Obligations” means all Obligations, together with all Swap Obligations and
Banking Services Obligations owing to one or more Lenders or their respective Affiliates.




          “Security Agreement” means that certain Pledge and Security Agreement (including any
and all supplements thereto), dated as of the date hereof, between the Loan Parties and the
Administrative Agent, for the benefit of the Administrative Agent and the other Holders of Secured
Obligations, and any other pledge or security agreement entered into, after the date of this
Agreement by any other Loan Party (as required by this Agreement or any other Loan Document), or
any other Person, as the same may be amended, restated or otherwise modified from time to time.




          “Solvent” means, in reference to any Borrower, (i) the fair value of the assets of
such Borrower, at a fair valuation, will exceed its debts and liabilities, subordinated, contingent
or otherwise; (ii) the present fair saleable value of the property of such Borrower will be greater
than the amount that will be required to pay the probable liability of its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become
absolute and matured; (iii) such Borrower will be able to pay its debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured;
and (iv) such Borrower will not have unreasonably small capital with which to conduct the business
in which it is engaged as such business is now conducted and is proposed to be conducted after the
Effective Date.




          “Statutory Reserve Rate” means, with respect to any currency, a fraction (expressed as
a decimal), the numerator of which is the number one and the denominator of which is the number one
minus the aggregate of the maximum reserve, liquid asset or similar requirements (including any
marginal, special, emergency or supplemental reserves or other requirements) established by any
central bank, monetary authority, the Board, the Financial Services Authority, the European Central
Bank or other Governmental Authority for any category of deposits or liabilities customarily used
to fund loans in such currency, expressed in the case of each such requirement as a decimal. Such
reserve, liquid asset or similar requirements shall, in the case of Dollar denominated Loans,
include those imposed pursuant to Regulation D of the Board. Eurocurrency Loans shall be deemed to
be subject to such reserve, liquid asset or similar requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any Lender under any
applicable law, rule or regulation, including Regulation D of the Board. The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of any change in any reserve,
liquid asset or similar requirement.




          “Subordinated Indebtedness” means any Indebtedness of the Company or any Subsidiary
the payment of which is subordinated to payment of the Secured Obligations to the written
satisfaction of, and the terms and conditions of which are otherwise satisfactory to, the
Administrative Agent.




18









 








          “Subordinated Indebtedness Documents” means any document, agreement or instrument
evidencing any Subordinated Indebtedness or entered into in connection with any Subordinated
Indebtedness.




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




          “Subsidiary” means any subsidiary of the Company.




          “Subsidiary Guarantor” means each Material Subsidiary (other than Affected Foreign
Subsidiaries) that is required to become a party to the Subsidiary Guaranty (including pursuant to
a joinder or supplement thereto). The Subsidiary Guarantors on the Effective Date are identified
as such in Schedule 3.01 hereto.




          “Subsidiary Guaranty” means that certain Guaranty dated as of the Effective Date
(including any and all supplements thereto) and executed by each Subsidiary Guarantor party
thereto, and, in the case of any guaranty by a Foreign Subsidiary, any other guaranty agreements
executed by a Foreign Subsidiary for the benefit of the Administrative Agent and the other Holders
of Secured Obligations, in each case as amended, restated, supplemented or otherwise modified from
time to time.




          “Substantial Portion” means Property which represents more than 10% of the
Consolidated Total Assets of the Company or Property which is responsible for more than 10% of the
consolidated net sales or of the Consolidated Net Income of the Company, in each case, as would be
shown in the consolidated financial statements of the Company as at the beginning of the
four-quarter period ending with the quarter in which such determination is made (or if financial
statements have not been delivered hereunder for that quarter which begins the four quarter period,
then the financial statements delivered hereunder for the quarter ending immediately prior to that
quarter).




          “Swap Agreement” means any transaction (including an agreement with respect thereto)
now existing or hereafter entered into by the Company or any Subsidiary which is a rate swap, basis
swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions) or any combination thereof, whether linked to
one or more interest rates, foreign currencies, commodity prices, equity prices or other financial
measures.




          “Swap Obligations” means any and all obligations of the Company or any Subsidiary,
whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor), under
(a) any and all Swap Agreements permitted hereunder with a Lender or an Affiliate of a Lender, and
(b) any and all cancellations, buy backs, reversals, terminations or assignments of any such Swap
Agreement transaction.




19









 








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




          “Swingline Lender” means JPMorgan Chase Bank, National Association, in its capacity as
lender of Swingline Loans hereunder.




          “Swingline Loan” means a Loan made pursuant to Section 2.05.




          “TARGET” means the Trans-European Automated Real-time Gross Settlement Express
Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other
payment system (if any) reasonably determined by the Administrative Agent to be a suitable
replacement) for the settlement of payments in euro.




          “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.




          “Transactions” means the execution, delivery and performance by the Loan Parties of
this Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions,
the use of the proceeds thereof and the issuance of Letters of Credit hereunder.




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




          “UCC” means the Uniform Commercial Code as in effect from time to time in the State of
New York or any other state the laws of which are required to be applied in connection with the
issue of perfection of security interests.




          “Unliquidated Obligations” means, at any time, any Secured Obligations (or portion
thereof) that are contingent in nature or unliquidated at such time, including any Secured
Obligation that is: (i) an obligation to reimburse a bank for drawings not yet made under a letter
of credit issued by it; (ii) any other obligation (including any guarantee) that is contingent in
nature at such time; or (iii) an obligation to provide collateral to secure any of the foregoing
types of obligations.




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




          SECTION 1.01. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or
by Type (e.g., a “Eurocurrency Loan”) or by Class and Type (e.g., a “Eurocurrency
Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a
“Revolving Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type
(e.g., a “Eurocurrency Revolving Borrowing”).




          SECTION 1.02. Terms Generally. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be




20









 







construed as referring to such agreement, instrument or other document as from time to time
amended, restated, supplemented or otherwise modified (subject to any restrictions on such
amendments, restatements, supplements or modifications set forth herein), (b) any reference herein
to any Person shall be construed to include such Person’s successors and assigns, (c) the words
“herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights.




          SECTION 1.03. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Company notifies the Administrative Agent
that the Company 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 Company that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.




ARTICLE II




The Credits




          SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein,
each Lender agrees to make Revolving Loans to the Borrowers in Agreed Currencies from time to time
during the Availability Period in an aggregate principal amount that will not result in (a) the
Dollar Amount of such Lender’s Revolving Credit Exposure exceeding the Dollar Amount of such
Lender’s Commitment, (b) subject to Section 2.04, the sum of the Dollar Amount of the total
Revolving Credit Exposures exceeding the Aggregate Commitment, (c) subject to Section 2.04, the
Dollar Amount of the total outstanding Revolving Loans and LC Exposure, in each case denominated in
Foreign Currencies, exceeding the Foreign Currency Sublimit or (d) subject to Section 2.04, the
Dollar Amount of the total Revolving Credit Exposures in respect of Foreign Subsidiary Borrowers
exceeding the Foreign Subsidiary Borrower Sublimit. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Revolving
Loans.




          SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made as part
of a Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their
respective Commitments. The failure of any Lender to make any Loan required to be made by it shall
not relieve any other Lender of its obligations hereunder; provided that the Commitments of
the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make
Loans as required.




          (b) Subject to Section 2.14, each Revolving Borrowing shall be comprised entirely of ABR
Loans or Eurocurrency Loans as the relevant Borrower may request in accordance herewith;
provided that each ABR Loan shall only be made in Dollars. Each Swingline Loan shall be an
ABR Loan. Each Lender at its option may make any Eurocurrency Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of
such option shall not



21









 






affect the obligation of the relevant Borrower to repay such Loan in accordance with the terms
of this Agreement.




          (c) At the commencement of each Interest Period for any Eurocurrency Revolving Borrowing that
is made to the Company, such Borrowing shall be in an aggregate amount that is an integral multiple
of $1,000,000 and not less than $3,000,000 (or the Equivalent Amount of each such amount if such
Borrowing is denominated in a Foreign Currency). Subject to paragraph (e) of this Section, at the
commencement of each Interest Period for any Eurocurrency Revolving Borrowing that is made to a
Foreign Subsidiary Borrower, such Borrowing shall be in an aggregate amount that is an integral
multiple of $100,000 and not less than $100,000 (or the Equivalent Amount of each such amount if
such Borrowing is denominated in a Foreign Currency). At the time that each ABR Revolving
Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of
$500,000 and not less than $1,000,000; provided that an ABR Revolving Borrowing may be in
an aggregate amount that is equal to the entire unused balance of the Aggregate Commitment or that
is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e).
Each Swingline Loan shall be in an amount that is an integral multiple of $500,000 and not less
than $500,000. Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of eight (8) Eurocurrency
Revolving Borrowings outstanding.




          (d) Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.




          (e) The initial borrowing from any Lender to the Dutch Borrower shall at all times exceed
€50,000 (or its equivalent in another currency).




          SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving Borrowing,
the applicable Borrower, or the Company on behalf of the applicable Borrower, shall notify the
Administrative Agent of such request by telephone (a) in the case of a Eurocurrency Borrowing, not
later than 11:00 a.m., Local Time, three (3) Business Days (in the case of a Eurocurrency Borrowing
denominated in Dollars to the Company) or four (4) Business Days (in the case of a Eurocurrency
Borrowing denominated in a Foreign Currency or a Eurocurrency Borrowing to a Foreign Subsidiary
Borrower), in each case before the date of the proposed Borrowing or (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., Chicago time, one (1) Business Day before the date of the
proposed Borrowing; provided that any such notice of an ABR Revolving Borrowing to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.06(e) may be given not later
than 10:00 a.m., Chicago time, on the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative
Agent and signed by the applicable Borrower, or the Company on behalf of the applicable Borrower.
Each such telephonic and written Borrowing Request shall specify the following information in
compliance with Section 2.02:





     (i) the aggregate amount of the requested Borrowing;




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




     (iii) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;




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



22









 






     (v) the location and number of the applicable Borrower’s account to which funds are to
be disbursed, which shall comply with the requirements of Section 2.07.


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




          SECTION 2.04. Determination of Dollar Amounts. The Administrative Agent will
determine the Dollar Amount of:




          (a) each Eurocurrency Borrowing as of the date three (3) Business Days prior to the date of
such Borrowing or, if applicable, the date of conversion/continuation of any Borrowing as a
Eurocurrency Borrowing,




          (b) the LC Exposure as of the date of each request for the issuance, amendment, renewal or
extension of any Letter of Credit, and




          (c) all outstanding Credit Events on and as of the last Business Day of each calendar quarter
and, during the continuation of an Event of Default, on any other Business Day elected by the
Administrative Agent in its discretion or upon instruction by the Required Lenders.



Each day upon or as of which the Administrative Agent determines Dollar Amounts as described in the
preceding clauses (a), (b) and (c) is herein described as a “Computation Date” with respect to each
Credit Event for which a Dollar Amount is determined on or as of such day.




          SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans in Dollars to the Company from time to
time during the Availability Period, in an aggregate principal amount at any time outstanding that
will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding
$25,000,000 or (ii) the Dollar Amount of the total Revolving Credit Exposures exceeding the
Aggregate Commitment; provided that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject
to the terms and conditions set forth herein, the Company may borrow, prepay and reborrow Swingline
Loans.




          (b) To request a Swingline Loan, the Company shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, Chicago time, on the day
of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received from the
Company. The Swingline Lender shall make each Swingline Loan available to the Company by means of
a credit to the general deposit account of the Company with the Swingline Lender (or, in the case
of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section
2.06(e), by remittance to the Issuing Bank) by 3:00 p.m., Chicago time, on the requested date of
such Swingline Loan.




          (c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., Chicago time, on any Business Day require the Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the




23









 







aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt
of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in
such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender
hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to
the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable
Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each
Lender shall comply with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.07 with respect to Loans made by such
Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations
of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall notify the Company of
any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter
payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from the Company (or other party on
behalf of the Company) in respect of a Swingline Loan after receipt by the Swingline Lender of the
proceeds of a sale of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph
and to the Swingline Lender, as their interests may appear; provided that any such payment
so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable,
if and to the extent such payment is required to be refunded to the Company for any reason. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the
Company of any default in the Company’s repayment of such Swingline Loan.




          SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Company may request the issuance of Letters of Credit denominated
in Agreed Currencies for its own account or any Subsidiary, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time during the
Availability Period. In the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit application or other
agreement submitted by the Company to, or entered into by the Company with, the Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement shall control;
provided, however, if the Issuing Bank is requested to issue Letters of Credit with respect
to a jurisdiction the Issuing Bank deems, in its reasonable judgment, may at any time subject it to
a New Money Credit Event or a Country Risk Event, the Company shall, at the request of the Issuing
Bank, guaranty and indemnify the Issuing Bank against any and all costs, liabilities and losses to
the extent resulting from such New Money Credit Event or Country Risk Event, in each case in a form
and substance reasonably satisfactory to the Issuing Bank. The letters of credit identified on
Schedule 2.06 (the “Existing Letters of Credit”) shall be deemed to be “Letters of Credit”
issued on the Effective Date for all purposes of the Loan Documents, except that the Issuing Bank
shall not collect any issuance or fronting fee or similar compensation with respect to the deemed
issuance thereof on the Effective Date.




          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Company shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the Issuing Bank) to
the Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be



24









 






amended, renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the
Agreed Currency applicable thereto, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the Issuing Bank, the Company also shall submit a letter of credit application on the
Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal
or extension of each Letter of Credit the Company shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (i) the Dollar Amount of the
LC Exposure shall not exceed $50,000,000, (ii) subject to Section 2.04, the sum of the Dollar
Amount of the total Revolving Credit Exposures shall not exceed the Aggregate Commitment and (iii)
subject to Section 2.04, the Dollar Amount of the sum of the total outstanding Revolving Loans and
LC Exposure, in each case denominated in Foreign Currencies, shall not exceed the Foreign Currency
Sublimit.




          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five (5) Business Days prior to the Maturity Date.




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




          (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of
a Letter of Credit, the Company shall reimburse such LC Disbursement by paying to the
Administrative Agent in Dollars the Dollar Amount equal to such LC Disbursement, calculated as of
the date the Issuing Bank made such LC Disbursement (or if the Issuing Bank shall so elect in its
sole discretion by notice to the Company, in such other Agreed Currency which was paid by the
Issuing Bank pursuant to such LC Disbursement in an amount equal to such LC Disbursement) not later
than 12:00 noon, Local Time, on the date that such LC Disbursement is made, if the Company shall
have received notice of such LC Disbursement prior to 10:00 a.m., Local Time, on such date, or, if
such notice has not been received by the Company prior to such time on such date, then not later
than 12:00 noon, Local Time, on the Business Day immediately following the day that the Company
receives such notice; provided that, if such LC Disbursement is at least the Dollar Amount
of $1,000,000, the Company may, subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 or 2.05 that such payment be financed with an ABR Revolving Borrowing
or Swingline Loan in an equivalent Dollar Amount of such LC Disbursement and, to the extent so
financed, the Company’s obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing or Swingline Loan. If the Company



25









 






fails to make such payment when due, the Administrative Agent shall notify each Lender of the
applicable LC Disbursement, the payment then due from the Company in respect thereof and such
Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Lender
shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the
Company, in the same manner as provided in Section 2.07 with respect to Loans made by such Lender
(and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Lenders. Promptly following receipt by the Administrative Agent of any
payment from the Company pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their
interests may appear. Any payment made by a Lender pursuant to this paragraph to reimburse the
Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a Swingline
Loan as contemplated above) shall not constitute a Loan and shall not relieve the Company of its
obligation to reimburse such LC Disbursement. If the Company’s reimbursement of, or obligation to
reimburse, any amounts in any Foreign Currency would subject the Administrative Agent, the Issuing
Bank or any Lender to any stamp duty, ad valorem charge or similar tax that would not be payable if
such reimbursement were made or required to be made in Dollars, the Company shall, at its option,
either (x) pay the amount of any such tax requested by the Administrative Agent, the Issuing Bank
or the relevant Lender or (y) reimburse each LC Disbursement made in such Foreign Currency in
Dollars, in an amount equal to the Equivalent Amount, calculated using the applicable Exchange
Rates, on the date such LC Disbursement is made, of such LC Disbursement.




          (f) Obligations Absolute. The Company’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Company’s obligations hereunder. Neither the Administrative Agent, the Lenders nor the Issuing
Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or
in connection with the issuance or transfer of any Letter of Credit or any payment or failure to
make any payment thereunder (irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank. Notwithstanding
anything to the contrary in this paragraph, nothing herein shall be construed to excuse the Issuing
Bank from liability to the Company to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Company to the extent permitted by
applicable law) suffered by the Company that are caused by the Issuing Bank’s failure to exercise
care when determining whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of the Issuing Bank, the Issuing Bank shall be deemed
to have exercised care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to documents presented which
appear on their face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or information to the
contrary, or



26









 






refuse to accept and make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.




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




          (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Company shall reimburse such LC Disbursement in full on the date such LC Disbursement is
made, the unpaid amount thereof shall bear interest, for each day from and including the date such
LC Disbursement is made to but excluding the date that the Company reimburses such LC Disbursement,
at the rate per annum then applicable to ABR Revolving Loans (or in the case such LC Disbursement
is denominated in a Foreign Currency, at the Overnight Foreign Currency Rate for such Agreed
Currency plus the then effective Applicable Rate with respect to Eurocurrency Revolving
Loans); provided that, if the Company fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.13(c) shall apply. Interest accrued
pursuant to this paragraph shall be for the account of the Issuing Bank, except that interest
accrued on and after the date of payment by any Lender pursuant to paragraph (e) of this Section to
reimburse the Issuing Bank shall be for the account of such Lender to the extent of such payment.




          (i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at any time by
written agreement among the Company, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of the Issuing Bank. At the time any such replacement shall become effective, the Company shall
pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.12(b). From and after the effective date of any such replacement, (i) the successor Issuing Bank
shall have all the rights and obligations of the Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank”
shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing
Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have
all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit then outstanding and issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.




          (j) Cash Collateralization. If any Event of Default shall occur and be continuing,
on the Business Day that the Company receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Company shall deposit in an account with the Administrative Agent,
in the name of the Administrative Agent and for the benefit of the Lenders (the “LC Collateral
Account”), an amount in cash equal to 105% of the Dollar Amount of the LC Exposure as of such
date plus any accrued and unpaid interest thereon; provided that (i) the portions of such
amount attributable to undrawn Foreign Currency Letters of Credit or LC Disbursements in a Foreign
Currency that the Company is not late in reimbursing shall be deposited in the applicable Foreign
Currencies in the actual amounts of such undrawn Letters of Credit and LC Disbursements and (ii)
the obligation to deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Company described in



27









 






clause (h) or (i) of Article VII. For the purposes of this paragraph, the Foreign Currency LC
Exposure shall be calculated using the applicable Exchange Rates on the date notice demanding cash
collateralization is delivered to the Company. The Company also shall deposit cash collateral
pursuant to this paragraph as and to the extent required by Section 2.11(b). Such deposit shall be
held by the Administrative Agent as collateral for the payment and performance of the Secured
Obligations. The Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account and the Company hereby grants the Administrative
Agent a security interest in the LC Collateral Account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and sole discretion of
the Administrative Agent and at the Company’s risk and expense, such deposits shall not bear
interest. Interest or profits, if any, on such investments shall accumulate in such account.
Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Bank
for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall
be held for the satisfaction of the reimbursement obligations of the Company for the LC Exposure at
such time or, if the maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be applied to
satisfy other Secured Obligations. If the Company is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the
extent not applied as aforesaid) shall be returned to the Company within three (3) Business Days
after all Events of Default have been cured or waived.




          (k) Conversion. In the event that the Loans become immediately due and payable on
any date pursuant to Article VII, all amounts (i) that the Company is at the time or thereafter
becomes required to reimburse or otherwise pay to the Administrative Agent in respect of LC
Disbursements made under any Foreign Currency Letter of Credit (other than amounts in respect of
which the Company has deposited cash collateral pursuant to paragraph (j) above, if such cash
collateral was deposited in the applicable Foreign Currency to the extent so deposited or applied),
(ii) that the Lenders are at the time or thereafter become required to pay to the Administrative
Agent and the Administrative Agent is at the time or thereafter becomes required to distribute to
the Issuing Bank pursuant to paragraph (e) of this Section in respect of unreimbursed LC
Disbursements made under any Foreign Currency Letter of Credit and (iii) of each Lender’s
participation in any Foreign Currency Letter of Credit under which an LC Disbursement has been made
shall, automatically and with no further action required, be converted into the Dollar Amount,
calculated using the Exchange Rates on such date (or in the case of any LC Disbursement made after
such date, on the date such LC Disbursement is made), of such amounts. On and after such
conversion, all amounts accruing and owed to the Administrative Agent, the Issuing Bank or any
Lender in respect of the obligations described in this paragraph shall accrue and be payable in
Dollars at the rates otherwise applicable hereunder.




          SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
(i) in the case of Loans denominated in Dollars to the Company, by 12:00 noon, Chicago time, to the
account of the Administrative Agent most recently designated by it for such purpose by notice to
the Lenders and (ii) in the case of each Loan denominated in a Foreign Currency or to a Foreign
Subsidiary Borrower, by 12:00 noon, Local Time, in the city of the Administrative Agent’s
Eurocurrency Payment Office for such currency and Borrower and at such Eurocurrency Payment Office;
provided that Swingline Loans shall be made as provided in Section 2.05. The
Administrative Agent will make such Loans available to the relevant Borrower by promptly crediting
the amounts so received, in like funds, to (x) an account of the Company maintained with the
Administrative Agent in New York City or Chicago and designated by the relevant Borrower in the
applicable Borrowing Request, in the case of Loans denominated in Dollars to the Company and (y) an
account of such Borrower maintained with the Administrative Agent in the relevant jurisdiction and
designated by such Borrower in the applicable Borrowing Request, in the case of Loans denominated
in a Foreign Currency or to a Foreign Subsidiary Borrower; provided that ABR



28









 






Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in Section
2.06(e) shall be remitted by the Administrative Agent to the Issuing Bank.




          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the relevant Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and such Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to such Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation (including without limitation the Overnight
Foreign Currency Rate in the case of Loans denominated in a Foreign Currency) or (ii) in the case
of such Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.




          SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing initially shall be
of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency
Revolving Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the relevant Borrower may elect to convert such Borrowing to a different Type or to
continue such Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect Interest
Periods therefor, all as provided in this Section. A Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This Section shall not
apply to Swingline Borrowings, which may not be converted or continued.




          (b) To make an election pursuant to this Section, a Borrower, or the Company on its behalf,
shall notify the Administrative Agent of such election by telephone by the time that a Borrowing
Request would be required under Section 2.03 if such Borrower were requesting a Revolving Borrowing
of the Type resulting from such election to be made on the effective date of such election. Each
such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by
hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the relevant Borrower, or the Company on
its behalf. Notwithstanding any contrary provision herein, this Section shall not be construed to
permit any Borrower to (i) change the currency of any Borrowing, (ii) elect an Interest Period for
Eurocurrency Loans that does not comply with Section 2.02(d) or (iii) convert any Borrowing to a
Borrowing of a Type not available under the Class of Commitments pursuant to which such Borrowing
was made.




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





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



29









 






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




     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing; and




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


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




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




          (e) If the relevant Borrower fails to deliver a timely Interest Election Request with respect
to a Eurocurrency Revolving Borrowing prior to the end of the Interest Period applicable thereto,
then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period (i) in
the case of a Borrowing denominated in Dollars, such Borrowing shall be converted to an ABR
Borrowing and (ii) in the case of a Borrowing denominated in a Foreign Currency, such Borrowing
shall automatically continue as a Eurocurrency Borrowing in the same Agreed Currency with an
Interest Period of one month unless (x) such Eurocurrency Borrowing is or was repaid in accordance
with Section 2.11 or (y) such Borrower shall have given the Administrative Agent an Interest
Election Request requesting that, at the end of such Interest Period, such Eurocurrency Borrowing
continue as a Eurocurrency Borrowing for the same or another Interest Period. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the Company, then, so
long as an Event of Default is continuing (i) no outstanding Revolving Borrowing borrowed by the
Company may be converted to or continued as a Eurocurrency Borrowing and (ii) unless repaid, each
Eurocurrency Revolving Borrowing borrowed by the Company shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto.




          SECTION 2.09. Termination and Reduction of Commitments. (a) Unless previously
terminated, the Commitments shall terminate on the Maturity Date.




          (b) The Company may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in an amount that is an
integral multiple of $5,000,000 and not less than $10,000,000 and (ii) the Company shall not
terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.11, the Dollar Amount of the sum of the Revolving Credit
Exposures would exceed the Aggregate Commitment.




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



30









 






date) if such condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.




          SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Revolving Loan made to such Borrower on the Maturity Date in
the currency of such Loan and (ii) in the case of the Company, to the Swingline Lender the then
unpaid principal amount of each Swingline Loan on the earlier of the Maturity Date and the first
date after such Swingline Loan is made that is the 15th or last day of a calendar month
and is at least two Business Days after such Swingline Loan is made; provided that on each
date that a Revolving Borrowing is made, the Company shall repay all Swingline Loans then
outstanding.




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




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




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




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




          SECTION 2.11. Prepayment of Loans.




          (a) Any Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to prior notice in accordance with the provisions of this
Section 2.11(a). The applicable Borrower, or the Company on behalf of the applicable Borrower,
shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the
Swingline Lender) by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case
of prepayment of a Eurocurrency Revolving Borrowing, not later than 11:00 a.m., Local Time, three
Business Days before the date of prepayment, (ii) in the case of prepayment of an ABR Revolving
Borrowing, not later than 11:00 a.m., Chicago time, one Business Day before the date of prepayment
or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, Chicago time, on
the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment
date and the principal amount of




31









 







each Borrowing or portion thereof to be prepaid; provided that, if a notice of
prepayment is given in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.09, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.09. Promptly following receipt of any such
notice relating to a Revolving Borrowing, the Administrative Agent shall advise the Lenders of the
contents thereof. Each partial prepayment of any Revolving Borrowing shall be in an amount that
would be permitted in the case of an advance of a Revolving Borrowing of the same Type as provided
in Section 2.02. Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by (i) accrued interest to the
extent required by Section 2.13 and (ii) break funding payments pursuant to Section 2.16.




          (b) If at any time, (i) other than as a result of fluctuations in currency exchange rates,
the sum of the aggregate principal Dollar Amount of all of the Revolving Credit Exposures
(calculated, with respect to those Credit Events denominated in Foreign Currencies, as of the most
recent Computation Date with respect to each such Credit Event) exceeds the Aggregate Commitment or
such sum in respect of Foreign Subsidiary Borrowers exceeds the Foreign Subsidiary Borrower
Sublimit and (ii) solely as a result of fluctuations in currency exchange rates, the sum of the
aggregate principal Dollar Amount of all of the outstanding Revolving Loans and LC Exposure, in
each case denominated in Foreign Currencies (collectively, “Foreign Currency Exposure”), as
of the most recent Computation Date with respect to each such Credit Event, exceeds 105% of the
Foreign Currency Sublimit or such sum in respect of Foreign Subsidiary Borrowers exceeds the
Foreign Subsidiary Borrower Sublimit, the Borrowers shall immediately repay Borrowings or cash
collateralize LC Disbursements in an account with the Administrative Agent pursuant to Section
2.06(j), as applicable, in an aggregate principal amount sufficient to cause (x) the aggregate
Dollar Amount of all Revolving Credit Exposures (so calculated) to be less than or equal to the
Aggregate Commitment, (y) the Foreign Currency Exposure to be less than or equal to the Foreign
Currency Sublimit and (z) the aggregate Dollar Amount of all Revolving Credit Exposures in respect
of the Foreign Subsidiary Borrowers to be less than the Foreign Subsidiary Borrower Sublimit.




          SECTION 2.12. Fees. (a) The Company agrees to pay to the Administrative Agent for
the account of each Lender a commitment fee, which shall accrue at the Applicable Rate on the
average daily unused Dollar Amount of the Commitment of such Lender during the period from and
including the Effective Date to but excluding the date on which such Commitment terminates.
Accrued commitment fees shall be payable in arrears on the third (3rd) Business Day
immediately following the last day of March, June, September and December of each year and on the
date on which the Commitments terminate, commencing on the first such date to occur after the date
hereof. All commitment fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but excluding the last day).
For purposes of computing commitment fees, (i) the Commitment of a Lender (other than the
Swingline Lender) shall be deemed to be used to the extent of the outstanding Revolving Loans and
LC Exposure of such Lender, and (ii) the Commitment of the Lender acting as Swingline Lender shall
be deemed to be used to the extent of the outstanding Revolving Loans, LC Exposure and Swingline
Loans of such Lender.




          (b) The Company agrees to pay (i) to the Administrative Agent for the account of each Lender
a participation fee with respect to its participations in Letters of Credit, which shall accrue, in
the case of commercial Letters of Credit, at the Applicable Rate and, in the case of standby
Letters of Credit, at the same Applicable Rate used to determine the interest rate applicable to
Eurocurrency Revolving Loans on the average daily Dollar Amount of such Lender’s LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date on which such Lender’s
Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to
the Issuing Bank a fronting fee, which



32









 






shall accrue at the rate of 0.125% per annum on the average daily Dollar Amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) attributable
to Letters of Credit issued by the Issuing Bank during the period from and including the Effective
Date to but excluding the later of the date of termination of the Commitments and the date on which
there ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees and commissions
(including, without limitation, standard commissions with respect to commercial Letters of Credit,
payable at the time of invoice of such amounts) with respect to the issuance, amendment,
cancellation, negotiation, transfer, presentment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Unless otherwise specified above, participation fees and
fronting fees accrued through and including the last day of March, June, September and December of
each year shall be payable on the third (3rd) Business Day following such last day,
commencing on the first such date to occur after the Effective Date; provided that all such
fees shall be payable on the date on which the Commitments terminate and any such fees accruing
after the date on which the Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be payable within ten (10) days after
invoice. All participation fees and fronting fees shall be computed on the basis of a year of 360
days and shall be payable for the actual number of days elapsed (including the first day but
excluding the last day).




          (c) The Company agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Company and the Administrative
Agent.




          (d) All fees payable hereunder shall be paid on the dates due, in Dollars and immediately
available funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable
to it) for distribution, in the case of commitment fees and participation fees, to the Lenders.
Fees paid shall not be refundable under any circumstances.




          SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing (including each
Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.




          (b) The Loans comprising each Eurocurrency Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.




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




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




          (e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest (i) computed by reference to the Alternate Base Rate at times when the Alternate Base Rate
is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a
leap year)



33









 






and (ii) for Borrowings denominated in Pounds Sterling shall be computed on the basis of a
year of 365 days, and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate Base Rate, Adjusted
LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.



          SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurocurrency Borrowing:





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




     (b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or
its Loan) included in such Borrowing for such Interest Period;


then the Administrative Agent shall give notice thereof to the applicable Borrower and the Lenders
by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the applicable Borrower and the Lenders that the circumstances giving rise to such notice
no longer exist, (i) any Interest Election Request that requests the conversion of any Revolving
Borrowing to, or continuation of any Revolving Borrowing as, a Eurocurrency Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurocurrency Revolving Borrowing, such
Borrowing shall be made as an ABR Borrowing; provided that if the circumstances giving rise
to such notice affect only one Type of Borrowings, then the other Type of Borrowings shall be
permitted.




          SECTION 2.15. Increased Costs. (a) If any Change in Law shall:





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




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


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan or of maintaining its obligation to make any such Loan
(including, without limitation, pursuant to any conversion of any Borrowing denominated in an
Agreed Currency into a Borrowing denominated in any other Agreed Currency) or to increase the cost
to such Lender or the Issuing Bank of participating in, issuing or maintaining any Letter of Credit
(including, without limitation, pursuant to any conversion of any Borrowing denominated in an
Agreed Currency into a Borrowing denominated in any other Agreed Currency) or to reduce the amount
of any sum received or receivable by such Lender or the Issuing Bank hereunder, whether of
principal, interest or otherwise (including, without limitation, pursuant to any conversion of any
Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed
Currency), then the applicable Borrower will pay to such Lender or the Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank, as
the case may be, for such additional costs incurred or reduction suffered.




34









 








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




          (c) A certificate of a Lender or the Issuing Bank describing the Change in Law in reasonable
detail and setting forth the amount or amounts necessary to compensate such Lender or the Issuing
Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this
Section shall be delivered to the Company and shall be conclusive absent manifest error. The
Company shall pay, or cause the other Borrowers to pay, such Lender or the Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.




          (d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right
to demand such compensation; provided that the Company shall not be required to compensate
a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 270 days prior to the date that such Lender or the Issuing Bank, as the case may
be, notifies the Company of the Change in Law giving rise to such increased costs or reductions and
of such Lender’s or the Issuing Bank’s intention to claim compensation therefor; provided
further that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.




          SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurocurrency Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to
Section 2.11), (b) the conversion of any Eurocurrency Loan other than on the last day of the
Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any
Eurocurrency Loan on the date specified in any notice delivered pursuant hereto (regardless of
whether such notice may be revoked under Section 2.11(b) and is revoked in accordance therewith) or
(d) the assignment of any Eurocurrency Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by the Company pursuant to Section 2.19, then, in any
such event, the Borrowers shall compensate each Lender for the loss, cost and expense attributable
to such event. Such loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate
that would have been applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for such Loan), over
(ii) the amount of interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of such period, for
deposits in the relevant currency of a comparable amount and period from other banks in the eurocurrency market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the applicable Borrower and shall be conclusive absent manifest
error. The





35












 




applicable Borrower shall pay such Lender the amount shown as due on any such certificate within
ten (10) days after receipt thereof.




          SECTION 2.17. Taxes. (a) Any and all payments by or on account of any obligation of
each Borrower hereunder shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if any Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or Issuing Bank (as
the case may be) receives an amount equal to the sum it would have received had no such deductions
been made, (ii) such Borrower shall make such deductions and (iii) such Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law.




          (b) In addition, each Borrower shall pay any Other Taxes related to such Borrower and imposed
on or incurred by the Administrative Agent, a Lender or the Issuing Bank to the relevant
Governmental Authority in accordance with applicable law.




          (c) The relevant Borrower shall indemnify the Administrative Agent, each Lender and the
Issuing Bank, within ten (10) days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank,
as the case may be, on or with respect to any payment by or on account of any obligation of such
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other
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 the Company by a Lender or
the Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.




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




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




          (f) If the Administrative Agent or a Lender determines, in its reasonable discretion, that it
has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the
Borrowers or with respect to which a Borrower has paid additional amounts pursuant to this Section
2.17, it shall pay over such refund to such Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by such Borrower under this Section 2.17 with respect to the
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); provided, that such Borrower,
upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over
to such Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in



36









 






the event the Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This Section shall not be construed to require the Administrative Agent or
any Lender to make available its tax returns (or any other information relating to its taxes which
it deems confidential) to any Borrower or any other Person.




          SECTION 2.18. Payments Generally; Allocations of Proceeds; Pro Rata Treatment; Sharing of
Set-offs.




          (a) Each Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.15, 2.16 or 2.17, or otherwise) prior to (i) in the case of payments denominated in Dollars by
the Company, 12:00 noon, Chicago time and (ii) in the case of payments denominated in a Foreign
Currency or by a Foreign Subsidiary Borrower, 12:00 noon, Local Time, in the city of the
Administrative Agent’s Eurocurrency Payment Office for such currency, in each case on the date when
due, in immediately available funds, without set-off or counterclaim. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made (i) in the same currency in which the applicable Credit Event was made
(or where such currency has been converted to euro, in euro) and (ii) to the Administrative Agent
at its offices at Chase Tower, Chicago, Illinois 60603 or, in the case of a Credit Event
denominated in a Foreign Currency or to a Foreign Subsidiary Borrower, the Administrative Agent’s
Eurocurrency Payment Office for such currency, except payments to be made directly to the Issuing
Bank or Swingline Lender as expressly provided herein and except that payments pursuant to Sections
2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments denominated in the same currency received
by it for the account of any other Person to the appropriate recipient promptly following receipt
thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such extension.
Notwithstanding the foregoing provisions of this Section, if, after the making of any Credit Event
in any Foreign Currency, currency control or exchange regulations are imposed in the country which
issues such currency with the result that the type of currency in which the Credit Event was made
(the “Original Currency”) no longer exists or any Borrower is not able to make payment to
the Administrative Agent for the account of the Lenders in such Original Currency, then all
payments to be made by such Borrower hereunder in such currency shall instead be made when due in
Dollars in an amount equal to the Dollar Amount (as of the date of repayment) of such payment due,
it being the intention of the parties hereto that the Borrowers take all risks of the imposition of
any such currency control or exchange regulations.




          (b) Any proceeds of Collateral received by the Administrative Agent (i) not constituting a
specific payment of principal, interest, fees or other sum payable under the Loan Documents (which
shall be applied as specified by the Company) or (ii) after an Event of Default has occurred and is
continuing and the Administrative Agent so elects or the Required Lenders so direct, such funds
shall be applied ratably first, to pay any fees, indemnities, or expense reimbursements
including amounts then due to the Administrative Agent and the Issuing Bank from any Borrower
(other than in connection with Banking Services Obligations and Swap Obligations), second,
to pay any fees or expense reimbursements then due to the Lenders from any Borrower (other than in
connection with Banking Services Obligations and Swap Obligations), third, to pay interest
then due and payable on the Loans ratably, fourth, to prepay principal on the Loans and
unreimbursed LC Disbursements ratably, fifth, to pay an amount to the Administrative Agent
equal to one hundred five percent (105%) of the aggregate undrawn face amount of all outstanding
Letters of Credit and the aggregate amount of any unpaid LC Disbursements, to be held as cash
collateral for such Obligations, sixth, to payment of any amounts owing with respect to
Banking Services Obligations and Swap Obligations, and seventh, to the payment of any other
Secured Obligation




37









 







due to the Administrative Agent or any Lender by any Borrower. Notwithstanding anything to
the contrary contained in this Agreement, unless so directed by the Company, or unless an Event of
Default is in existence, none of the Administrative Agent or any Lender shall apply any payment
which it receives to any Eurocurrency Loan of a Class, except (a) on the expiration date of the
Interest Period applicable to any such Eurocurrency Loan or (b) in the event, and only to the
extent, that there are no outstanding ABR Loans of the same Class and, in any event, the Borrowers
shall pay the break funding payment required in accordance with Section 2.16. The Administrative
Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and
reapply any and all such proceeds and payments to any portion of the Secured Obligations.




          (c) At the election of the Administrative Agent, all payments of principal, interest, LC
Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all
reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the
Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a
request by a Borrower (or the Company on behalf of a Borrower) pursuant to Section 2.03 or a deemed
request as provided in this Section or may be deducted from any deposit account of such Borrower
maintained with the Administrative Agent. Each Borrower hereby irrevocably authorizes (i) the
Administrative Agent to make a Borrowing for the purpose of paying each payment of principal,
interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and
agrees that all such amounts charged shall constitute Loans (including Swingline Loans) and that
all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05,
as applicable and (ii) the Administrative Agent to charge any deposit account of the relevant
Borrower maintained with the Administrative Agent for each payment of principal, interest and fees
as it becomes due hereunder or any other amount due under the Loan Documents.




          (d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Revolving Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Revolving Loans and participations in LC Disbursements and Swingline
Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Revolving Loans and participations in LC Disbursements and Swingline
Loans; provided that (i) if any such participations are purchased and all or any portion of
the payment giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and (ii) the provisions
of this paragraph shall not be construed to apply to any payment made by any Borrower pursuant to
and in accordance with the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements and Swingline Loans to any assignee or participant, other than
to the Company or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). Each Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Borrower under this
Agreement in the amount of such participation.




          (e) Unless the Administrative Agent shall have received notice from the relevant Borrower
prior to the date on which any payment is due to the Administrative Agent for the account of the
Lenders or the Issuing Bank hereunder that such Borrower will not make such payment, the




38









 







Administrative Agent may assume that such Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the
Issuing Bank, as the case may be, the amount due. In such event, if such Borrower has not in fact
made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including the date such amount
is distributed to it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation (including without limitation the
Overnight Foreign Currency Rate in the case of Loans denominated in a Foreign Currency).




          (f) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are fully paid.




          SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.15, or if any Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or
2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Company hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.




          (b) If any Lender requests compensation under Section 2.15, or if any Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, or if any Lender defaults in its obligation to fund Loans hereunder, then
the Company may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all its interests, rights and obligations under the
Loan Documents to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Company shall have
received the prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans,
accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company
(in the case of all other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17,
such assignment will result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Company to require such assignment and
delegation cease to apply.




          SECTION 2.20. Expansion Option. The Company may from time to time elect to increase
the Commitments or enter into one or more tranches of term loans (each an “Incremental Term
Loan”), in each case in minimum increments of $25,000,000 so long as, after giving effect
thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed
$50,000,000.




39









 







The Company may arrange for any such increase or tranche to be provided by one or more Lenders
(each Lender so agreeing to an increase in its Commitment, or to participate in such Incremental
Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or
other entities (each such new bank, financial institution or other entity, an “Augmenting
Lender”), to increase their existing Commitments, or to participate in such Incremental Term
Loans, or extend Commitments, as the case may be; provided that (i) each Augmenting Lender,
shall be subject to the approval of the Company and the Administrative Agent and (ii) (x) in the
case of an Increasing Lender, the Company and such Increasing Lender execute an agreement
substantially in the form of Exhibit C hereto, and (y) in the case of an Augmenting Lender,
the Company and such Augmenting Lender execute an agreement substantially in the form of
Exhibit D hereto. Increases and new Commitments and Incremental Term Loans created
pursuant to this Section 2.20 shall become effective on the date agreed by the Company, the
Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders and the
Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase
in the Commitments (or in the Commitment of any Lender) or tranche of Incremental Term Loans shall
become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such
increase or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of
Section 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent
shall have received a certificate to that effect dated such date and executed by a Financial
Officer of the Company and (B) the Company shall be in compliance (on a pro forma basis reasonably
acceptable to the Administrative Agent) with the covenants contained in Section 6.11 and (ii) the
Administrative Agent shall have received documents consistent with those delivered on the Effective
Date as to the corporate power and authority of the Borrowers to borrow hereunder after giving
effect to such increase. On the effective date of any increase in the Commitments or any
Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall
make available to the Administrative Agent such amounts in immediately available funds as the
Administrative Agent shall determine, for the benefit of the other Lenders, as being required in
order to cause, after giving effect to such increase and the use of such amounts to make payments
to such other Lenders, each Lender’s portion of the outstanding Revolving Loans of all the Lenders
to equal its Applicable Percentage of such outstanding Revolving Loans, and (ii) except in the case
of any Incremental Term Loans, the Borrowers shall be deemed to have repaid and reborrowed all
outstanding Revolving Loans as of the date of any increase in the Commitments (with such
reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if
applicable, specified in a notice delivered by the applicable Borrower, or the Company on behalf of
the applicable Borrower, in accordance with the requirements of Section 2.03). The deemed payments
made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment
of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan, shall be
subject to indemnification by the Borrowers pursuant to the provisions of Section 2.16 if the
deemed payment occurs other than on the last day of the related Interest Periods. The Incremental
Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not
mature earlier than the Maturity Date
(but may have amortization prior to such date) and (c) shall
be treated substantially the same as (and in any event no more favorably than) the Revolving Loans;
provided that the Incremental Term Loans may be priced differently than the Revolving
Loans. Incremental Term Loans may be made hereunder pursuant to an amendment (an “Incremental
Term Loan Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed
by the Borrowers, each Augmenting Lender participating in such tranche, if any, and the
Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other
Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary
or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of
this Section 2.20.




          SECTION 2.21. Market Disruption. Notwithstanding the satisfaction of all conditions
referred to in Article II and Article IV with respect to any Credit Event to be effected in any
Foreign Currency, if (i) there shall occur on or prior to the date of such Credit Event any change
in national or




40









 







international financial, political or economic conditions or currency exchange rates or
exchange controls which would in the reasonable opinion of the Administrative Agent, the Issuing
Bank (if such Credit Event is a Letter of Credit) or the Required Lenders make it impracticable for
the Eurocurrency Borrowings or Letters of Credit comprising such Credit Event to be denominated in
the Agreed Currency specified by the applicable Borrower or (ii) an Equivalent Amount of such
currency is not readily calculable, then the Administrative Agent shall forthwith give notice
thereof to such Borrower, the Lenders and, if such Credit Event is a Letter of Credit, the Issuing
Bank, and such Credit Events shall not be denominated in such Agreed Currency but shall, except as
otherwise set forth in Section 2.07, be made on the date of such Credit Event in Dollars, (a) if
such Credit Event is a Borrowing, in an aggregate principal amount equal to the Dollar Amount of
the aggregate principal amount specified in the related Credit Event Request or Interest Election
Request, as the case may be, as ABR Loans, unless such Borrower notifies the Administrative Agent
at least one Business Day before such date that (i) it elects not to borrow on such date or (ii) it
elects to borrow on such date in a different Agreed Currency, as the case may be, in which the
denomination of such Loans would in the reasonable opinion of the Administrative Agent and the
Required Lenders be practicable and in an aggregate principal amount equal to the Dollar Amount of
the aggregate principal amount specified in the related Credit Event Request or Interest Election
Request, as the case may be or (b) if such Credit Event is a Letter of Credit, in a face amount
equal to the Dollar Amount of the face amount specified in the related request or application for
such Letter of Credit, unless such Borrower notifies the Administrative Agent at least one (1)
Business Day before such date that (i) it elects not to request the issuance of such Letter of
Credit on such date or (ii) it elects to have such Letter of Credit issued on such date in a
different Agreed Currency, as the case may be, in which the denomination of such Letter of Credit
would in the reasonable opinion of the Issuing Bank, the Administrative Agent and the Required
Lenders be practicable and in face amount equal to the Dollar Amount of the face amount specified
in the related request or application for such Letter of Credit, as the case may be.




          SECTION 2.22. Judgment Currency. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due from any Borrower hereunder in the currency expressed to
be payable herein (the “specified currency”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall
be that at which in accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative Agent’s main New
York City office on the Business Day preceding that on which final, non-appealable judgment is
given. The obligations of each Borrower in respect of any sum due to any Lender or the
Administrative Agent hereunder shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the Business Day following receipt by
such Lender or the Administrative Agent (as the case may be) of any sum adjudged to be so due in
such other currency such Lender or the Administrative Agent (as the case may be) may in accordance
with normal, reasonable banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is less than the sum originally due
to such Lender or the Administrative Agent, as the case may be, in the specified currency, each
Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the Administrative Agent, as the
case may be, against such loss, and if the amount of the specified currency so purchased exceeds
(a) the sum originally due to any Lender or the Administrative Agent, as the case may be, in the
specified currency and (b) any amounts shared with other Lenders as a result of allocations of such
excess as a disproportionate payment to such Lender under Section 2.18, such Lender or the
Administrative Agent, as the case may be, agrees to remit such excess to such Borrower.




          SECTION 2.23. Designation of Foreign Subsidiary Borrowers. The Company may at any
time and from time to time designate any Eligible Foreign Subsidiary as a Foreign Subsidiary
Borrower by delivery to the Administrative Agent of a Borrowing Subsidiary Agreement executed by




41









 







such Subsidiary and the Company and the satisfaction of the other conditions precedent set
forth in Section 4.03, and upon such delivery and satisfaction such Subsidiary shall for all
purposes of this Agreement be a Foreign Subsidiary Borrower and a party to this Agreement until the
Company shall have executed and delivered to the Administrative Agent a Borrowing Subsidiary
Termination with respect to such Subsidiary, whereupon such Subsidiary shall cease to be a Foreign
Subsidiary Borrower and a party to this Agreement. Notwithstanding the preceding sentence, no
Borrowing Subsidiary Termination will become effective as to any Foreign Subsidiary Borrower at a
time when any principal of or interest on any Loan to such Borrower shall be outstanding hereunder;
provided that such Borrowing Subsidiary Termination shall be effective to terminate the
right of such Foreign Subsidiary Borrower to make further Borrowings under this Agreement. As soon
as practicable upon receipt of a Borrowing Subsidiary Agreement, the Administrative Agent shall
furnish a copy thereof to each Lender.




ARTICLE III




Representations and Warranties




          Each Borrower represents and warrants to the Lenders that:




          SECTION 3.01. Organization; Powers; Subsidiaries. Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing (to the extent such concept
is applicable in the relevant jurisdiction) under the laws of the jurisdiction of its organization,
has all requisite power and authority to carry on its business as now conducted and, except where
the failure to do so, individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect, is qualified to do business in, and is in good standing (to the
extent such concept is applicable) in, every jurisdiction where such qualification is required.
Schedule 3.01 hereto (as supplemented from time to time) identifies each Subsidiary, if
such Subsidiary is a Material Subsidiary, the jurisdiction of its incorporation or organization, as
the case may be, the percentage of issued and outstanding shares of each class of its capital stock
or other equity interests owned by the Company and the other Subsidiaries and, if such percentage
is not 100% (excluding directors’ qualifying shares as required by law), a description of each
class issued and outstanding. All of the outstanding shares of capital stock and other equity
interests of each Subsidiary are validly issued and outstanding and fully paid and nonassessable
and all such shares and other equity interests indicated on Schedule 3.01 as owned by the
Company or another Subsidiary are owned, beneficially and of record, by the Company or any
Subsidiary free and clear of all Liens, other than Liens created under the Loan Documents. There
are no outstanding commitments or other obligations of the Company or any Subsidiary to issue, and
no options, warrants or other rights of any Person to acquire, any shares of any class of capital
stock or other equity interests of the Company or any Subsidiary, except pursuant to compensation
plans of the Company and such Subsidiaries.




          SECTION 3.02. Authorization; Enforceability. The Transactions are within each Loan
Party’s corporate powers and have been duly authorized by all necessary corporate and, if required,
shareholder action. The Loan Documents to which each Loan Party is a party have been duly executed
and delivered by such Loan Party and constitute a legal, valid and binding obligation of such Loan
Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding in equity or at law.




          SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and effect
and except for filings necessary to perfect Liens created pursuant to the Loan Documents, (b) will
not violate any




42









 







applicable law or regulation or the charter, by-laws or other organizational documents of the
Company or any of its Subsidiaries or any order of any Governmental Authority, (c) will not violate
or result in a default under any indenture or material agreement or other instrument binding upon
the Company or any of its Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by the Company or any of its Subsidiaries, and (d) will not result in the
creation or imposition of any Lien (other than a Permitted Lien) on any asset of the Company or any
of its Subsidiaries, except Liens created pursuant to the Loan Documents.




          SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Company has
heretofore furnished to the Lenders its consolidated balance sheet and statements of income,
stockholders equity and cash flows (i) as of and for the Fiscal Year ended December 31, 2006
reported on by Ernst & Young LLP, independent public accountants, and (ii) as of and for the Fiscal
Quarter and the portion of the Fiscal Year ended June 30, 2007, certified by its chief financial
officer. Such financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Company and its consolidated Subsidiaries
as of such dates and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred to in clause (ii)
above.




          (b) Since December 31, 2006, there has been no material adverse change in the business,
assets, operations or condition, financial or otherwise, of the Company and its Subsidiaries, taken
as a whole.




          SECTION 3.05. Properties. (a) Each of the Company and its Subsidiaries has good
title to, or valid leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their intended purposes.




          (b) Each of the Company and its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its business, and the
use thereof by the Company and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.




          SECTION 3.06. Litigation and Environmental Matters. (a) There are no actions, suits,
proceedings or investigations by or before any arbitrator or Governmental Authority pending against
or, to the knowledge of any Borrower, threatened against or affecting the Company or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect or (ii) that question the validity of this Agreement or the
Transactions. There are no labor controversies pending against or, to the knowledge of the
Company, threatened against or affecting the Company or any of its Subsidiaries (i) which could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect,
or (ii) that question the validity of this Agreement or the Transactions.




          (b) Except with respect to any matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the Company nor any of its
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law, (ii) has become
subject to any Environmental Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental Liability.




43









 








          SECTION 3.07. Compliance with Laws. Each of the Company and its Subsidiaries is in
compliance with all laws, regulations and orders of any Governmental Authority applicable to it or
its property and all indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. Furthermore, the Dutch Borrower is in compliance
with the Dutch Financial Supervision Act.




          SECTION 3.08. Investment Company Status. Neither the Company nor any of its
Subsidiaries is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.




          SECTION 3.09. Taxes. Each of the Company and its Subsidiaries has timely filed or
caused to be filed all Tax returns and related reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which the Company or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to
do so could not reasonably be expected to result in a Material Adverse Effect.




          SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect.




          SECTION 3.11. Disclosure. The Company has disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information Memorandum nor any of the
other reports, financial statements, certificates or other information furnished by or on behalf of
the Company or any Subsidiary to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to state any material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial information,
the Borrowers represent only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.




          SECTION 3.12. Federal Reserve Regulations. No part of the proceeds of any Loan have
been used or will be used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations T, U and X.




          SECTION 3.13. Liens. There are no Liens on any of the real or personal properties of
the Company or any Subsidiary except for Permitted Liens.




          SECTION 3.14. No Default. Each Borrower is in full compliance with this Agreement
and no Default or Event of Default has occurred and is continuing.




          SECTION 3.15. No Burdensome Restrictions. On the date hereof, no Borrower is subject
to any Burdensome Restrictions except Burdensome Restrictions permitted under Section 6.08.




          SECTION 3.16. Solvency.




          (a) Immediately after the consummation of the Transactions to occur on the Effective Date,
the Company and its Subsidiaries, taken as a whole, are and will be Solvent.




44









 








          (b) The Company does not intend to, nor will it permit any of its Subsidiaries to, and the
Company does not believe that it or any of its Subsidiaries will, incur debts beyond its ability to
pay such debts as they mature, taking into account the timing of and amounts of cash to be received
by it or any such Subsidiary and the timing of the amounts of cash to be payable on or in respect
of its Indebtedness or the Indebtedness of any such Subsidiary.




          SECTION 3.17. Insurance. Except as qualified below, the Company maintains, and has
caused each Subsidiary to maintain, with financially sound and reputable insurance companies,
insurance on all their real and personal property in such amounts, subject to such deductibles and
self-insurance retentions and covering such properties and risks as are adequate and customarily
maintained by companies engaged in the same or similar businesses operating in the same or similar
locations. The Company and certain of its Subsidiaries are self-insured for general liability
coverage.




          SECTION 3.18. Security Interest in Collateral. The provisions of this Agreement and
the other Loan Documents create legal and valid Liens on all the Collateral in favor of the
Administrative Agent, for the benefit of the Holders of Secured Obligations, and provided that the
Administrative Agent does what is required to continue the perfection of such Liens under the UCC
or other applicable law, such Liens constitute perfected and continuing Liens on the Collateral,
securing the Secured Obligations, enforceable against the applicable Loan Party and all third
parties, and having priority over all other Liens on the Collateral except in the case of (a)
Permitted Liens, to the extent any such Permitted Liens would have priority over the Liens in favor
of the Administrative Agent pursuant to any applicable law or any Intercreditor Agreements and (b)
Liens perfected only by possession (including possession of any certificate of title) to the extent
the Administrative Agent has not obtained or does not maintain possession of such Collateral.




ARTICLE IV




Conditions




          SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and of
the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance with Section 9.02):





     (a) The Administrative Agent (or its counsel) shall have received from (i) each party
hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B)
written evidence satisfactory to the Administrative Agent (which may include telecopy or
electronic transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement and (ii) duly executed copies of the Loan Documents
and such other legal opinions, certificates, documents, instruments and agreements as the
Administrative Agent shall reasonably request in connection with the Transactions, all in
form and substance satisfactory to the Administrative Agent and its counsel and as further
described in the list of closing documents attached as Exhibit E.




     (b) The Administrative Agent shall have received a favorable written opinion
(addressed to the Administrative Agent and the Lenders, and dated the Effective Date) of (i)
Jones Day, U.S. counsel for the Loan Parties, substantially in the form of Exhibit
B-1, and (ii) BarentsKrans N.V., Dutch counsel for the Dutch Borrower, substantially in
the form of Exhibit B-2 and in each case covering such other matters relating to the Loan
Parties, the Loan Documents or the Transactions as the Administrative Agent shall reasonably
request. The Company hereby requests such counsel to deliver such opinions.



45









 






     (c) The Administrative Agent shall have received such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating to the organization,
existence and good standing of the initial Loan Parties, the authorization of the
Transactions and any other legal matters relating to such Loan Parties, the Loan Documents
or the Transactions, all in form and substance satisfactory to the Administrative Agent and
its counsel and as further described in the list of closing documents attached as
Exhibit E.




     (d) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial Officer of the Company,
confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section
4.02, as further described in the list of closing documents attached as Exhibit E.




     (e) The Administrative Agent shall have received evidence satisfactory to it that the
Company’s asset-based credit facility currently in effect shall have been terminated and
cancelled and all indebtedness thereunder shall have been fully repaid (except to the extent
being so repaid with the initial Revolving Loans) and any and all liens thereunder shall
have been terminated, as further described in the list of closing documents attached as
Exhibit E.




     (f) The Administrative Agent shall have received evidence reasonably satisfactory to
it that all governmental and third party approvals necessary or, in the reasonable
discretion of the Administrative Agent, advisable in connection with the Transactions have
been obtained and are in full force and effect.




     (g) The Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement
or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company
hereunder.




     (h) The Administrative Agent shall have received the results of a recent lien search
in each of the jurisdictions where the Loan Parties are organized, and such search shall
reveal no liens on any of the assets of the Loan Parties except for Permitted Liens or
discharged on or prior to the Effective Date pursuant to a pay-off letter or other
documentation satisfactory to the Administrative Agent, as further described in the list of
closing documents attached as Exhibit E.




     (i) The Administrative Agent shall have received (i) the certificates representing
the shares of Equity Interests pledged pursuant to the Security Agreement, 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 Administrative
Agent pursuant to the Security Agreement endorsed (without recourse) in blank (or
accompanied by an executed transfer form in blank) by the pledgor thereof.




     (j) Each document (including any UCC financing statement) required by the Collateral
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 Administrative Agent, for the
benefit of the Holders of Secured Obligations, a perfected Lien on the Collateral described
therein, prior and superior in right to any other Person (other than with respect to
Permitted Liens), shall be in proper form for filing, registration or recordation.




     (k) The Administrative Agent shall have received evidence of insurance coverage in
form, scope, and substance reasonably satisfactory to the Administrative Agent and otherwise
in



46









 






compliance with the terms of Section 5.05, as further described in the list of closing
documents attached as Exhibit E.




     (l) The Administrative Agent shall have received from the Dutch Borrower a
confirmation by an authorized signatory of the Dutch Borrower that there is no works council
with jurisdiction over the transactions as envisaged by any Loan Document to which it is a
party and that there is no obligation for the Dutch Borrower to establish a works council
pursuant to the Works Council Act (Wet op de Ondernemingraden), or, if a works council is
established, a confirmation that all consultation obligations in respect of such works
council have been complied with and that positive unconditional advice has been obtained,
attaching a copy of such advice and a copy of the request for such advice.




     (m) The Administrative Agent shall have received from the Company a written money
transfer instruction substantially in the form of Exhibit G hereto.


The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and such
notice shall evidence the satisfaction (or waiver in accordance of Section 9.02) of all of the
conditions in this Section 4.01 and shall be conclusive and binding.




          SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:





     (a) The representations and warranties of the Borrowers set forth in this Agreement
shall be true and correct on and as of the date of such Borrowing or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as applicable.




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




     (c) No law or regulation shall prohibit, and no order, judgment or decree of any
Governmental Authority shall enjoin, prohibit or restrain, any Lender from making the
requested Loan or the Issuing Bank or any Lender from issuing, renewing, extending or
increasing the face amount of or participating in the Letter of Credit requested to be
issued, renewed, extended or increased; provided that any of the forgoing shall only
affect or limit a requested Borrowing to the extent of such injunction, prohibition or
restraint.


Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrowers on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.




          SECTION 4.03. Designation of a Foreign Subsidiary Borrower. The designation of a
Foreign Subsidiary Borrower pursuant to Section 2.23 is subject to the condition precedent that the
Company or such proposed Foreign Subsidiary Borrower shall have furnished or caused to be furnished
to the Administrative Agent:





     (a) Copies, certified by the Secretary or Assistant Secretary (or comparable officer)
of such Subsidiary, of its Board of Directors’ resolutions (and resolutions of other bodies,
if any are deemed necessary by counsel for the Administrative Agent) approving the Borrowing
Subsidiary Agreement and any other Loan Documents to which such Subsidiary is becoming a
party;



47









 






     (b) An incumbency certificate, executed by the Secretary or Assistant Secretary (or
comparable officer) of such Subsidiary, which shall identify by name and title and bear the
signature of the officers of such Subsidiary authorized to request Borrowings hereunder and
sign the Borrowing Subsidiary Agreement and the other Loan Documents to which such
Subsidiary is becoming a party, upon which certificate the Administrative Agent and the
Lenders shall be entitled to rely until informed of any change in writing by the Company or
such Subsidiary;




     (c) Opinions of counsel to such Subsidiary, in form and substance reasonably
satisfactory to the Administrative Agent and its counsel, with respect to the laws of its
jurisdiction of organization and such other matters as are reasonably requested by counsel
to the Administrative Agent and addressed to the Administrative Agent and the Lenders; and




     (d) Any promissory notes requested by any Lender, and any other instruments and
documents reasonably requested by the Administrative Agent.



ARTICLE V




Affirmative Covenants




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




          SECTION 5.01. Financial Statements and Other Information. The Company will furnish
to the Administrative Agent for distribution to each Lender:





     (a) within ninety (90) days after the end of each Fiscal Year of the Company, its
audited consolidated balance sheet and related statements of operations, stockholders’
equity and cash flows as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous Fiscal Year, all reported on by Ernst & Young
LLP or other independent public accountants of recognized national standing (without a
“going concern” or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and results of
operations of the Company and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied (except as may be described as required by
paragraph (c)(iii) of this Section);




     (b) within forty-five (45) days after the end of each of the first three Fiscal
Quarters of each Fiscal Year of the Company, its consolidated balance sheet and related
statements of operations, stockholders’ equity and cash flows as of the end of and for such
Fiscal Quarter and the then elapsed portion of the Fiscal Year, setting forth in each case
in comparative form the figures for the corresponding period or periods of (or, in the case
of the balance sheet, as of the end of) the previous Fiscal Year, all certified by one of
its Financial Officers as presenting fairly in all material respects the financial condition
and results of operations of the Company and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied, subject to normal year-end audit
adjustments, the absence of footnotes and any matters described as required by paragraph
(c)(iii) of this Section;



48









 






     (c) concurrently with any delivery of financial statements under clause (a) or (b)
above, a certificate of a Financial Officer of the Company (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Section 6.11 and (iii) stating whether
any change in GAAP or in the application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying such
certificate;




     (d) concurrently with any delivery of financial statements under clause (a) above, a
certificate of the accounting firm that reported on such financial statements stating
whether they obtained knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent required by
accounting rules or guidelines);




     (e) as soon as available, but in any event not more than thirty (30) days prior to the
end of each Fiscal Year of the Company, a copy of the plan and forecast (including a
projected consolidated and consolidating balance sheet, income statement and funds flow
statement) of the Company for the upcoming Fiscal Year in form reasonably satisfactory to
the Administrative Agent; and




     (f) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Company or any Subsidiary, or
compliance with the terms of this Agreement, as the Administrative Agent or any Lender
(acting through the Administrative Agent) may reasonably request.



          SECTION 5.02. Notices of Material Events. The Company will furnish to the
Administrative Agent for distribution to each Lender prompt written notice of the following:





     (a) the occurrence of any Default;




     (b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Company or any Affiliate
thereof that, if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;




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




     (d) any other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect.


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




          SECTION 5.03. Existence; Conduct of Business. The Company will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence and the rights, qualifications, licenses, permits,
privileges, franchises, governmental authorizations and intellectual property rights material to
the conduct of its business, and maintain all requisite authority to conduct its business in each
jurisdiction in which its business is




49









 







conducted; provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.03.




          SECTION 5.04. Payment of Obligations. The Company will, and will cause each of its
Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could result in
a Material Adverse Effect before the same shall become delinquent or in default, except where (a)
the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the
Company or such Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably
be expected to result in a Material Adverse Effect.




          SECTION 5.05. Maintenance of Properties; Insurance. The Company will, and will cause
each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted, and (b) maintain
with financially sound and reputable carriers (i) insurance in such amounts (with no greater risk
retention) and against such risks (including loss or damage by fire and loss in transit; theft,
burglary, pilferage, larceny, embezzlement, and other criminal activities; business interruption;
and general liability) and such other hazards, as is customarily maintained by companies engaged in
the same or similar businesses operating in the same or similar locations and (ii) all insurance
required pursuant to the Collateral Documents; provided, that the Company and its Subsidiaries
shall be entitled to self-insure for general liability in a manner consistent with historical
practices. The Company will furnish to the Administrative Agent, upon request, information in
reasonable detail as to the insurance so maintained. The Company shall deliver to the
Administrative Agent endorsements (x) to all “All Risk” physical damage insurance policies on all
of the Loan Parties’ tangible personal property and assets and business interruption insurance
policies naming the Administrative Agent as lender loss payee, and (y) to all general liability and
other liability policies naming the Administrative Agent an additional insured. In the event the
Company or any of its Subsidiaries at any time or times hereafter shall fail to obtain or maintain
any of the policies or insurance required herein or to pay any premium in whole or in part relating
thereto, then after notice to the Company and a reasonable time to cure, the Administrative Agent,
without waiving or releasing any obligations or resulting Default hereunder, may at any time or
times thereafter (but shall be under no obligation to do so) obtain and maintain such policies of
insurance and pay such premiums and take any other action with respect thereto which the
Administrative Agent deems reasonably advisable. All sums so disbursed by the Administrative Agent
shall constitute part of the Obligations, payable as provided in this Agreement. The Company will
furnish to the Administrative Agent and the Lenders prompt written notice of any casualty or other
insured damage to any material portion of the Collateral or the commencement of any action or
proceeding for the taking of any material portion of the Collateral or interest therein under power
of eminent domain or by condemnation or similar proceeding.




          SECTION 5.06. Books and Records; Inspection Rights. The Company will, and will cause
each of its Subsidiaries to, 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. The Company will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine and make extracts from its books and records,
including environmental assessment reports and Phase I or Phase II studies commissioned previously
by the Company or any Subsidiary (it being understood that the Administrative Agent and Lenders
will not be entitled to conduct their own environmental studies with respect to the Company or any
of its Subsidiaries), and to discuss its affairs, finances and condition with its officers and
independent accountants, all at such reasonable times and as often as reasonably requested. During
any inspection or examination, the Administrative Agent will make reasonable efforts to cause all
of its representatives to comply in all material respects with all health, safety and security
requirements of general application of the Company or applicable Subsidiary,




50









 







or otherwise applicable to the relevant location. The Company acknowledges that the
Administrative Agent, after exercising its rights of inspection, may prepare and distribute to the
Lenders certain reports pertaining to the Company and its Subsidiaries’ assets for internal use by
the Administrative Agent and the Lenders.




          SECTION 5.07. Compliance with Laws and Material Contractual Obligations. The Company
will, and will cause each of its Subsidiaries to, (i) comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property (including without limitation
Environmental Laws) and (ii) perform in all material respects its obligations under material
agreements to which it is a party, in each case except where the failure to do so, individually or
in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.




          SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used only to
finance the working capital needs, and for general corporate purposes, of the Company and its
Subsidiaries in the ordinary course of business. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations T, U and X.




          SECTION 5.09. Subsidiary Guarantors; Pledges; Additional Collateral; Further
Assurances.




          (a) As promptly as possible but in any event within thirty (30) days (or such later date as
may be agreed upon by the Administrative Agent) after any Person becomes, or is designated by the
Company as, or qualifies independently as a Subsidiary Guarantor pursuant to the definitions of
“Material Subsidiary” and “Subsidiary Guarantor”, the Company shall provide the Administrative
Agent with written notice thereof setting forth information in reasonable detail describing the
material assets of such Person and shall cause each such Subsidiary which also qualifies as a
Subsidiary Guarantor to deliver to the Administrative Agent a joinder to the Subsidiary Guaranty
and the Security Agreement (in each case in the form contemplated thereby) pursuant to which such
Subsidiary agrees to be bound by the terms and provisions thereof, such Subsidiary Guaranty and the
Security Agreement to be accompanied by appropriate corporate resolutions, other corporate
documentation and legal opinions in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.




          (b) The Company will cause, and will cause each other Loan Party to cause, all of its owned
property (whether real, personal, tangible, intangible, or mixed; provided that (x) real property
shall be limited to mining property and (y) such owned property shall exclude precious metal, any
and all inventory or work-in-process that contains precious metal and any proceeds of the foregoing
(collectively, “Precious Metal”)), to be subject at all times to first priority, perfected
Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to
secure the Secured Obligations in accordance with the terms and conditions of the Collateral
Documents, subject in any case to Permitted Liens. Without limiting the generality of the
foregoing, the Company (i) will cause the Applicable Pledge Percentage of the issued and
outstanding Equity Interests of each Pledge Subsidiary directly owned by the Company or any other
Loan Party to be subject at all times to a first priority, perfected Lien in favor of the
Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions
of the Collateral Documents or such other security documents as the Administrative Agent shall
reasonably request and (ii) will, and will cause each Subsidiary Guarantor to, deliver Mortgages
and Mortgage Instruments with respect to real mining Property owned by the Company or such
Guarantor to the extent, and within such time period as is, reasonably required by the
Administrative Agent. Notwithstanding the foregoing, (i) no such Mortgages and Mortgage
Instruments are required to be delivered hereunder until December 15, 2007 or such later date as
the Administrative Agent may agree in the exercise of its reasonable discretion with respect
thereto and (ii) no such pledge




51









 







agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required
hereunder (A) until December 15, 2007 or such later date as the Administrative Agent may agree in
the exercise of its reasonable discretion with respect thereto, and (B) to the extent the
Administrative Agent or its counsel determines that such pledge would not provide material credit
support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding
and enforceable pledge agreements.




          (c) Without limiting the foregoing, the Company will, and will cause each other Loan Party
to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such
documents, agreements and instruments, and will take or cause to be taken such further actions
(including the filing and recording of financing statements, fixture filings, mortgages, deeds of
trust and other documents and such other actions or deliveries of the type required by Section
4.01, as applicable), which may be required by law or which the Administrative Agent may, from time
to time, reasonably request to carry out the terms and conditions of this Agreement and the other
Loan Documents and to ensure perfection and priority of the Liens created or intended to be created
by the Collateral Documents, all at the expense of the Company.




          (d) If any assets (including any real mining property or improvements thereto or any interest
therein but excluding Precious Metal) are acquired by a Loan Party after the Effective Date (other
than assets constituting Collateral under the Security Agreement that become subject to the Lien in
favor of the Security Agreement upon acquisition thereof), the Company will notify the
Administrative Agent thereof, and, if requested by the Administrative Agent, the Company will cause
such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the
other Loan Parties to take, such actions as shall be necessary or reasonably requested by the
Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c)
of this Section, all at the expense of the Company.




ARTICLE VI




Negative Covenants




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




          SECTION 6.01. Indebtedness. The Company will not, and will not permit any Subsidiary
to, create, incur, assume or permit to exist any Indebtedness, except:





     (a) the Secured Obligations;




     (b) Indebtedness existing on the date hereof and set forth in Schedule 6.01
and extensions, renewals and replacements of any such Indebtedness with Indebtedness of a
similar type that does not increase the outstanding principal amount thereof;




     (c) Indebtedness of (i) any Loan Party to any other Loan Party, (ii) any Subsidiary to
any Loan Party and (iii) any Subsidiary that is not a Loan Party to any other Subsidiary
that is not a Loan Party;



52









 






     (d) Guarantees by (i) any Loan Party of Indebtedness of any other Loan Party, (ii) any
Subsidiary of Indebtedness of any Loan Party and (iii) any Subsidiary that is not a Loan
Party of Indebtedness of any other Subsidiary that is not a Loan Party;




     (e) Indebtedness of the Company or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capitalized Lease
Obligations and any Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition thereof, and
extensions, renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that the aggregate principal amount
of Indebtedness incurred in any Fiscal Year pursuant to this clause (e) shall not exceed
$25,000,000;




     (f) Contingent Obligations (i) by endorsement of instruments for deposit or collection
in the ordinary course of business, (ii) consisting of the reimbursement obligations in
respect of LC Disbursements hereunder, (iii) consisting of the Subsidiary Guaranty and
Guarantees of Indebtedness incurred for the benefit of any other Loan Party if the primary
obligation is expressly permitted elsewhere in this Section 6.01, and (iv) under the
Beryllium Contracts;




     (g) Indebtedness arising under Swap Agreements having a Net Mark-to-Market Exposure
not exceeding $50,000,000, which amount shall include the Swap Agreements in existence on
the Effective Date;




     (h) Indebtedness arising under Permitted Precious Metals Agreements in an aggregate
principal amount not to exceed $180,000,000; and




     (i) other unsecured Indebtedness in an amount not in excess of $50,000,000.



          SECTION 6.02. Liens. The Company will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any Collateral, except the following
(collectively, “Permitted Liens”):





     (a) Liens created pursuant to any Loan Document;




     (b) Liens arising in connection with Permitted Precious Metals Agreements subject to
the Intercreditor Agreement referenced in clause (a) of the definition of “Intercreditor
Agreements” to the extent applicable;




     (c) any Lien on any property or asset of the Company or any Subsidiary existing on the
date hereof and set forth in Schedule 6.02; provided that (i) such Lien
shall not apply to any other property or asset of the Company or any Subsidiary and (ii)
such Lien shall secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the outstanding principal
amount thereof;




     (d) any Lien existing on any property or asset prior to the acquisition thereof by the
Company or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien
shall not apply to any other property or assets of the Company or any Subsidiary and (iii)
such Lien shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a



53









 






Subsidiary, as the case may be, and extensions, renewals and replacements thereof that
do not increase the outstanding principal amount thereof;




     (e) Liens on fixed or capital assets acquired, constructed or improved by the Company
or any Subsidiary; provided that (i) such security interests secure Indebtedness
permitted by clause (e) of Section 6.01, (ii) the Indebtedness secured thereby does not
exceed the cost of acquiring, constructing or improving such fixed or capital assets and
(iii) such security interests shall not apply to any other property or assets of the Company
or any Subsidiary;




     (f) Liens for taxes, fees, assessments, or other governmental charges or levies on the
Property of the Company or any Subsidiary if such Liens (a) shall not at the time be
delinquent or (b) subject to the provisions of Section 5.04, do not secure obligations in
excess of $10,000,000 and a stay of enforcement of such Lien is in effect;




     (g) Liens imposed by law, such as carrier’s, warehousemen’s, and mechanic’s Liens and
other similar Liens arising in the ordinary course of business which secure payment of
obligations not more than ten days past due or which are being contested in good faith by
appropriate proceedings diligently pursued and for which adequate reserves shall have been
provided on the Company or such Subsidiary’s books;




     (h) statutory Liens in favor of landlords of real Property leased by the Company or
any Subsidiary; provided that, the Company or such Subsidiary is current with
respect to payment of all rent and other material amounts due to such landlord under any
lease of such real Property;




     (i) Liens arising out of pledges or deposits under worker’s compensation laws,
unemployment insurance, old age pensions, or other social security or retirement benefits,
or similar legislation or to secure the performance of bids, tenders, or contracts (other
than for the repayment of Indebtedness) or to secure indemnity, performance, or other
similar bonds for the performance of bids, tenders, or contracts (other than for the
repayment of Indebtedness) or to secure statutory obligations (other than liens arising
under ERISA or Environmental Laws) or surety or appeal bonds, or to secure indemnity,
performance, or other similar bonds;




     (j) utility easements, building restrictions, and such other encumbrances or charges
against real Property as are of a nature generally existing with respect to properties of a
similar character and which do not in any material way affect the marketability of such real
Property or interfere in any material respect with the use thereof in the business of the
Company or any Subsidiary;




     (k) the equivalent of the types of Liens discussed in clauses (f) through (j) above,
inclusive, in any jurisdiction in which the Company or any Subsidiary is engaged in business
or owns Property or assets;




     (l) Liens arising from judgments or orders under circumstances that do not constitute
an Event of Default under clause (k) of Article VII; and




     (m) other Liens not otherwise permitted above so long as the aggregate principal
amount of the obligations subject to such Liens does not at any time exceed $10,000,000.



          SECTION 6.03. Fundamental Changes and Asset Sales. (a) The Company will not, and
will not permit any Subsidiary to, merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of
(in one




54









 







transaction or in a series of transactions) any of its assets, (including pursuant to a Sale
and Leaseback Transaction), or any of the Equity Interests of any of its Subsidiaries (in each
case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the
time thereof and immediately after giving effect thereto no Event of Default shall have occurred
and be continuing:





     (i) any Person may merge into the Company in a transaction in which the Company is the
surviving corporation;




     (ii) any Subsidiary may merge into a Loan Party in a transaction in which the
surviving entity is such Loan Party (provided that any such merger involving the Company
must result in the Company as the surviving entity) and any Subsidiary which is not a Loan
Party may merge into another Subsidiary which is not a Loan Party;




     (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to a
Loan Party and any Subsidiary which is not a Loan Party may sell, transfer, lease or
otherwise dispose of its assets to another Subsidiary which is not a Loan Party;




     (iv) the Company and its Subsidiaries may (A) sell inventory in the ordinary course of
business, (B) effect sales, trade-ins or dispositions of equipment that is obsolete or no
longer useful in any meaningful way in its business, (C) enter into licenses of technology
in the ordinary course of business, and (D) make any other sales, transfers, leases or
dispositions that, together with all other Property of the Company and its Subsidiaries
previously leased, sold or disposed of as permitted by this clause (D) during any Fiscal
Year of the Company, does not represent Property with a book value that (1) is greater than
10% of the Consolidated Total Assets of the Company or (2) is responsible for more than 10%
of the consolidated net sales or of the Consolidated Net Income of the Company, in each
case, as would be shown in the consolidated financial statements of the Company as at the
beginning of the four-quarter period ending with the quarter in which such determination is
made (or if financial statements have not been delivered hereunder for that quarter which
begins the four quarter period, then the financial statements delivered hereunder for the
quarter ending immediately prior to that quarter); and




     (v) any Subsidiary may liquidate or dissolve if the Company determines in good faith
that such liquidation or dissolution is in the best interests of the Company and is not
materially disadvantageous to the Lenders; provided that any such merger involving a
Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be
permitted unless also permitted by Section 6.04.



          (b) The Company will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by the Company and its
Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.




          (c) The Company will not, nor will it permit any of its Subsidiaries to, change its Fiscal
Year from the basis in effect on the Effective Date.




          SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. The Company
will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger)
any capital stock, evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, Guarantee any obligations of, or make or permit to
exist any Investment in, any other Person, or make any Acquisition, except:




55









 








          (a) Cash Equivalent Investments;




          (b) Investments in Subsidiaries existing as of the Effective Date and additional Investments
in Subsidiaries which are Loan Parties;




          (c) other Investments in existence on the Effective Date and described in Schedule
6.04;




          (d) Investments consisting of loans or advances made to employees of the Company or any
Subsidiary on an arms-length basis in the ordinary course of business consistent with past
practices for travel and entertainment expenses, and similar purposes up to a maximum of $50,000 to
any employee and up to a maximum of $250,000 in the aggregate at any one time outstanding;.




          (e) Investments comprised of notes payable, or stock or other securities issued by account
debtors to the Company or any Subsidiary pursuant to negotiated agreements with respect to
settlement of such account debtor’s accounts in the ordinary course of business, consistent with
past practices;




          (f) Investments made in connection with employee compensation arrangements, employee option
plans or deferred director compensation, all in a manner consistent with the Company’s historical
practices;




          (g) Acquisitions; provided, that, at the time of and immediately after giving effect
to any such Acquisition, (i) no Event of Default has occurred and is continuing or would arise
after giving effect thereto, (ii) such Acquisition is not a Hostile Acquisition, (iii) such Person
or division or line of business is engaged in the same or a similar line of business as the Company
and the Subsidiaries or business reasonably related thereto, (iv) all actions required to be taken
with respect to such acquired or newly formed Subsidiary under Section 5.09 shall have been taken,
(v) the Company and the Subsidiaries are in compliance, on a pro forma basis after giving effect to
such Acquisition (but without giving effect to any synergies or cost savings), with the covenants
contained in Section 6.11 recomputed as of the last day of the most recently ended Fiscal Quarter
of the Company for which financial statements are available, as if such Acquisition (and any
related incurrence or repayment of Indebtedness, with any new Indebtedness being deemed to be
amortized over the applicable testing period in accordance with its terms) had occurred on the
first day of each relevant period for testing such compliance and, if the aggregate consideration
paid in respect of such Acquisition exceeds $25,000,000, the Company shall have delivered to the
Administrative Agent a certificate of a Financial Officer of the Company to such effect, together
with all relevant financial information, statements and projections reasonably requested by the
Administrative Agent, (vi) in the case of an Acquisition or merger involving the Company or a
Subsidiary, the Company or such Subsidiary is the surviving entity of such merger and/or
consolidation and (vii) the aggregate cash consideration paid in respect of such Acquisition, when
taken together with the aggregate cash consideration paid in respect of all other Acquisitions,
does not exceed $50,000,000 during any Fiscal Year of the Company; provided,
however, that the foregoing $50,000,000 aggregate limitation for Acquisitions shall not
apply as long as the Leverage Ratio does not exceed 2.50 to 1.00 immediately prior to and
immediately after giving effect to any such Acquisition;




          (h) Investments under Permitted Precious Metal Agreements;




          (i) other Investments in non-Loan Party Subsidiaries (other than non-Loan Party Subsidiaries
of the Dutch Borrower) in an amount not to exceed $20,000,000 at any time; and




          (j) other Investments not to exceed $50,000,000 at any time outstanding.





56












 





          SECTION 6.05. Swap Agreements. The Company will not, and will not permit any of its
Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which the Company or any Subsidiary has actual exposure (other than those in
respect of Equity Interests of the Company or any of its Subsidiaries), 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 investment of the Company or any Subsidiary.




          SECTION 6.06. Transactions with Affiliates. The Company will not, and will not
permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices
and on terms and conditions not less favorable to the Company or such Subsidiary than could be
obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among
the Company and its wholly owned Subsidiaries not involving any other Affiliate and (c) any
Restricted Payment permitted by Section 6.07.




          SECTION 6.07. Restricted Payments. The Company will not, and will not permit any of
its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except (a) the Company may declare and pay dividends with respect to its Equity
Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and
pay dividends ratably with respect to their Equity Interests, (c) the Company may make Restricted
Payments pursuant to and in accordance with stock option plans or other benefit plans for
management or employees of the Company and its Subsidiaries and (d) the Company and its
Subsidiaries may make any other Restricted Payment so long as no Default or Event of Default has
occurred and is continuing prior to making such Restricted Payment or would arise after giving
effect (including pro forma effect) thereto and the aggregate amount of such Restricted Payments
does not exceed 10% of Consolidated Net Worth as of the most recently ended Fiscal Quarter of the
Company for which Financials have been delivered; provided, that the foregoing aggregate
limitation for Restricted Payments shall not apply as long as the Leverage Ratio does not exceed
2.50 to 1.00 immediately prior to and immediately after giving effect to any such Restricted
Payment.




          SECTION 6.08. Restrictive Agreements. The Company will not, and will not permit any
of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the
Company or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or
assets, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect
to holders of its Equity Interests or to make or repay loans or advances to the Company or any
other Subsidiary or to Guarantee Indebtedness of the Company or any other Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and conditions imposed by
law or by any Loan Document, (ii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending such sale;
provided such restrictions and conditions apply only to the Subsidiary that is to be sold
and such sale is permitted hereunder, (iii) the foregoing shall not apply to restrictions and
conditions set forth in any Permitted Precious Metals Agreement that is subject to the
Intercreditor Agreement referenced in clause (a) of the definition of “Intercreditor Agreements”,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness and (v) clause (a) of
the foregoing shall not apply to customary provisions in leases and other contracts restricting the
assignment thereof.




          SECTION 6.09. Subordinated Indebtedness and Amendments to Subordinated Indebtedness
Documents. The Company will not, and will not permit any Subsidiary to, directly or



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indirectly voluntarily prepay, defease or in substance defease, purchase, redeem, retire or
otherwise acquire, any Subordinated Indebtedness or any Indebtedness from time to time outstanding
under the Subordinated Indebtedness Documents. Furthermore, the Company will not, and will not
permit any Subsidiary to, amend the Subordinated Indebtedness Documents or any document, agreement
or instrument evidencing any Indebtedness incurred pursuant to the Subordinated Indebtedness
Documents (or any replacements, substitutions, extensions or renewals thereof) or pursuant to which
such Indebtedness is issued where such amendment, modification or supplement provides for the
following or which has any of the following effects:





     (a) increases the overall principal amount of any such Indebtedness or increases the
amount of any single scheduled installment of principal or interest;




     (b) shortens or accelerates the date upon which any installment of principal or
interest becomes due or adds any additional mandatory redemption provisions;




     (c) shortens the final maturity date of such Indebtedness or otherwise accelerates the
amortization schedule with respect to such Indebtedness;




     (d) increases the rate of interest accruing on such Indebtedness;




     (e) provides for the payment of additional fees or increases existing fees;




     (f) amends or modifies any financial or negative covenant (or covenant which prohibits
or restricts the Company or any Subsidiary from taking certain actions) in a manner which is
more onerous or more restrictive in any material respect to the Company or such Subsidiary
or which is otherwise materially adverse to the Company, any Subsidiary and/or the Lenders
or, in the case of any such covenant, which places material additional restrictions on the
Company or such Subsidiary or which requires the Company or such Subsidiary to comply with
more restrictive financial ratios or which requires the Company to better its financial
performance, in each case from that set forth in the existing applicable covenants in the
Subordinated Indebtedness Documents or the applicable covenants in this Agreement; or




     (g) amends, modifies or adds any affirmative covenant in a manner which (i) when taken
as a whole, is materially adverse to the Company, any Subsidiary and/or the Lenders or (ii)
is more onerous than the existing applicable covenant in the Subordinated Indebtedness
Documents or the applicable covenant in this Agreement.



          SECTION 6.10. Sale and Leaseback Transactions. The Company shall not, nor shall it
permit any Subsidiary to, enter into any Sale and Leaseback Transaction.




          SECTION 6.11. Financial Covenants.




          (a) Maximum Leverage Ratio. The Company will not permit the Leverage Ratio,
determined as of the end of each of its Fiscal Quarters for the then most-recently ended four
Fiscal Quarters, to be greater than 3.50 to 1.00.




          (b) Minimum Fixed Charge Coverage Ratio. The Company will not permit the Fixed
Charge Coverage Ratio, determined as of the end of each of its Fiscal Quarters for the then
most-recently ended four Fiscal Quarters, to be less than 1.50 to 1.00.




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ARTICLE VII




Events of Default




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




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




          (b) any Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article) payable under this Agreement, when
and as the same shall become due and payable, and such failure shall continue unremedied for a
period of three (3) Business Days;




          (c) any representation or warranty made or deemed made by or on behalf of any Loan Party in
or in connection with this Agreement or any other Loan Document or any amendment or modification
hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with this Agreement or any other
Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have
been materially incorrect when made or deemed made;




          (d) the Company shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to any Borrower’s existence), 5.08 or 5.09 or in
Article VI or in Article X;




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




          (f) the Company or any Subsidiary shall fail to make any payment (whether of principal or
interest and regardless of amount) in respect of any Material Indebtedness, when and as the same
shall become due and payable;




          (g) any event or condition occurs that results in any Material Indebtedness becoming due
prior to its scheduled maturity or that enables or permits (with or without the giving of notice,
the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets securing such Indebtedness;




          (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Company or any other Loan
Party or its debts, or of a Substantial Portion of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for
the Company or any other Loan Party or for a Substantial Portion of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;




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




          (j) the Company or any other Loan Party shall admit in writing its inability or fail
generally to pay its debts as they become due;




          (k) one or more judgments for the payment of money in an aggregate amount in excess of
$5,000,000 (or the equivalent thereof in currencies other than Dollars) shall be rendered against
the Company, any Subsidiary or any combination thereof and the same shall remain undischarged for a
period of thirty (30) consecutive days during which execution shall not be effectively stayed, or
any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the
Company or any Subsidiary to enforce any such judgment;




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




          (m) a Change in Control shall occur;




          (n) the occurrence of any “Default”, as defined in any Loan Document (other than this
Agreement) or the breach of any of the terms or provisions of any Loan Document (other than this
Agreement), which default or breach continues beyond any period of grace therein provided;




          (o) any material provision of any Loan Document for any reason ceases to be valid, binding
and enforceable in accordance with its terms (or any Loan Party shall challenge the enforceability
of any Loan Document or shall assert in writing, or engage in any action or inaction based on any
such assertion, that any provision of any of the Loan Documents has ceased to be or otherwise is
not valid, binding and enforceable in accordance with its terms); or




          (p) any Collateral Document shall for any reason fail to create a valid and perfected first
priority security interest in any portion of the Collateral purported to be covered thereby, except
as permitted by the terms of any Loan Document;



then, and in every such event (other than an event with respect to the Company described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Company, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall
become due and payable immediately, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrowers; and in case of any event with respect to any
Borrower described in clause (h) or (i) of this Article, the Commitments shall


60









 






automatically terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and all fees and other Secured Obligations accrued hereunder and under the other
Loan Documents, shall automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrowers. Upon the occurrence and
during the continuance of an Event of Default, the Administrative Agent may, and at the request of
the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent
under the Loan Documents or at law or equity, including all remedies provided under the UCC.




ARTICLE VIII




The Administrative Agent




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




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




          The Administrative Agent shall not have any duties or obligations except those expressly set
forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall
not have any duty to disclose, and shall not be liable for the failure to disclose, any information
relating to the Company or any of its Subsidiaries that is communicated to or obtained by the bank
serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent
shall not be liable for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default
unless and until written notice thereof is given to the Administrative Agent by the Company or a
Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document delivered hereunder or in
connection with any Loan Document, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, (v) the satisfaction of any condition set forth in Article IV or elsewhere
in any Loan Document, other than to confirm receipt of items expressly required to be delivered to
the Administrative Agent or (vi) the creation, perfection or priority of Liens on the Collateral or
the existence of the Collateral.




61









 








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




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




          Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Company. Upon any such resignation, the Required Lenders shall have the right
(with the consent of the Company, such consent not to be unreasonably withheld or delayed; provided
that no such consent shall be required if an Event of Default has occurred and is continuing) to
appoint a successor. If no successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and
the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in
New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The
fees payable by any Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between such Borrower and such successor. After the
Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Administrative Agent.




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




          None of the Lenders, if any, identified in this Agreement as a Co-Syndication Agent or
Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty
under this Agreement other than those applicable to all Lenders as such. Without limiting the
foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any
Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in
their respective capacities as Co-Syndication Agents or Co-Documentation Agents, as applicable, as
it makes with respect to the Administrative Agent in the preceding paragraph.




62









 








          Except with respect to the exercise of setoff rights of any Lender, in accordance with Section
9.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that
it will not take any action, nor institute any actions or proceedings, against any Loan Party or
with respect to any Loan Document, without the prior written consent of the Required Lenders or, as
may be provided in this Agreement or the other Loan Documents, with the consent of the
Administrative Agent.




          The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or
omissions of, or (except as otherwise set forth herein in case of the Administrative Agent)
authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right
on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after
the date such principal or interest has become due and payable pursuant to the terms of this
Agreement.




          In its capacity, the Administrative Agent is a “representative” of the Holders of Secured
Obligations within the meaning of the term “secured party” as defined in the UCC. Each Lender
authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a
party and to take all action contemplated by such documents. Each Lender agrees that no Holder of
Secured Obligations (other than the Administrative Agent) shall have the right individually to seek
to realize upon the security granted by any Collateral Document, it being understood and agreed
that such rights and remedies may be exercised solely by the Administrative Agent for the benefit
of the Holders of Secured Obligations upon the terms of the Collateral Documents. In the event
that any Collateral is hereafter pledged by any Person as collateral security for the Secured
Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney,
to execute and deliver on behalf of the Holders of Secured Obligations any Loan Documents necessary
or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent
on behalf of the Holders of Secured Obligations. The Lenders hereby authorize the Administrative
Agent, at its option and in its discretion, to release any Lien granted to or held by the
Administrative Agent upon any Collateral (i) as described in Section 9.02(c); (ii) as permitted by,
but only in accordance with, the terms of the applicable Loan Document; or (iii) if approved,
authorized or ratified in writing by the Required Lenders, unless such release is required to be
approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time,
the Lenders will confirm in writing the Administrative Agent’s authority to release particular
types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting
Collateral which is permitted pursuant to the terms of any Loan Document, or consented to in
writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five
Business Days’ prior written request by the Company to the Administrative Agent shall (and is
hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to
evidence the release of the Liens granted to the Administrative Agent for the benefit of the
Holders of Secured Obligations herein or pursuant hereto upon the Collateral that was sold or
transferred; provided, however, that (i) the Administrative Agent shall not be
required to execute any such document on terms which, in the Administrative Agent’s reasonable
opinion, would expose the Administrative Agent to liability or create any obligation or entail any
consequence other than the release of such Liens without recourse or warranty, and (ii) such
release shall not in any manner discharge, affect or impair the Secured Obligations or any Liens
upon (or obligations of the Loan Parties in respect of) all interests retained by any Loan Party,
including (without limitation) the proceeds of the sale, all of which shall continue to constitute
part of the Collateral.




          Each Borrower, on its behalf and on behalf of its Subsidiaries, and each Lender, on its behalf
and on the behalf of its affiliated Holders of Secured Obligations, hereby irrevocably constitute
the Administrative Agent as the holder of an irrevocable power of attorney (fondé de pouvoir within
the meaning of Article 2692 of the Civil Code of Québec) in order to hold hypothecs and security
granted by each Borrower or any Subsidiary on property pursuant to the laws of the Province of
Quebec to secure obligations of any Borrower or any Subsidiary under any bond, debenture or similar
title of indebtedness issued by any Borrower or any Subsidiary in connection with this Agreement,
and agree that the



63









 






Administrative Agent may act as the bondholder and mandatary with respect to any bond,
debenture or similar title of indebtedness that may be issued by any Borrower or any Subsidiary and
pledged in favor of the Holders of Secured Obligations in connection with this Agreement.
Notwithstanding the provisions of Section 32 of the An Act respecting the special powers of legal
persons (Quebec), JPMorgan Chase Bank, National Association as Administrative Agent may acquire and
be the holder of any bond issued by any Borrower or any Subsidiary in connection with this
Agreement (i.e., the fondé de pouvoir may acquire and hold the first bond issued under any deed of
hypothec by any Borrower or any Subsidiary).




          The Administrative Agent is hereby authorized to execute and deliver any documents necessary
or appropriate to create and perfect the rights of pledge for the benefit of the Holders of Secured
Obligations including a right of pledge with respect to the entitlements to profits, the balance
left after winding up and the voting rights of the Company as ultimate parent of any Subsidiary
which is organized under the laws of the Netherlands and the Equity Interests of which are pledged
in connection herewith (a “Dutch Pledge”). Without prejudice to the provisions of this
Agreement and the other Loan Documents, the parties hereto acknowledge and agree with the creation
of parallel debt obligations of the Company or any relevant Subsidiary as will be described in any
Dutch Pledge (the “Parallel Debt”), including that any payment received by the
Administrative Agent in respect of the Parallel Debt will — conditionally upon such payment not
subsequently being avoided or reduced by virtue of any provisions or enactments relating to
bankruptcy, insolvency, preference, liquidation or similar laws of general application — be deemed
a satisfaction of a pro rata portion of the corresponding amounts of the Obligations, and any
payment to the Holders of Secured Obligations in satisfaction of the Obligations shall -
conditionally upon such payment not subsequently being avoided or reduced by virtue of any
provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar
laws of general application — be deemed as satisfaction of the corresponding amount of the Parallel
Debt. The parties hereto acknowledge and agree that, for purposes of a Dutch Pledge, any
resignation by the Administrative Agent is not effective until its rights under the Parallel Debt
are assigned to the successor Administrative Agent.




          The Administrative Agent shall administer any Collateral Document which is governed by German
law and is a pledge (Pfandrecht) or otherwise transferred to any Holder of Secured
Obligations under an accessory security right (akzessorische Sicherheit) in the name and on
behalf of the Holders of Secured Obligations. In relation to any Collateral Document governed by
the laws of Germany, each party hereby authorizes the Administrative Agent to accept as its
representative any pledge or other creation of any accessory security right made to such party in
relation to this Agreement and to agree to and execute on its behalf as its representative
amendments, supplements and other alterations to any Collateral Document governed by the laws of
Germany which creates a pledge or any other accessory security right and to release on behalf of
such party any Collateral Document governed by the laws of Germany in accordance with the
provisions herein and/or the provisions in the relevant German law governed pledge agreement.




ARTICLE IX




Miscellaneous




          SECTION 9.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:




64









 









     (i) if to any Borrower, to it c/o Brush Engineered Materials Inc., 17876 St. Clair
Avenue, Cleveland, Ohio 44110, Attention of Michael C. Hasychak (Telecopy No. (216)
481-2523; Telephone No. (216) 383-6823);




     (ii) if to the Administrative Agent, to (A) in the case of Borrowings by the Company
denominated in Dollars, JPMorgan Chase Bank, National Association, JPMorgan Loan Services,
10 South Dearborn Street, 7th Floor, Chicago, Illinois 60603, Attention:
LaDesiree Williams (Facsimile No. (312) 732-4864) and (B) in the case of Borrowings by any
Foreign Subsidiary Borrower or denominated in Agreed Currencies other than Dollars, J.P.
Morgan Europe Limited, 125 London Wall, Floor 9, London EC2Y 5AJ, United Kingdom, Attention
of Mark Satchel (Telecopy No. 44 207 777 2360), and in each case with a copy to JPMorgan
Chase Bank, National Association, 1300 East Ninth Street, 13th Floor, Cleveland,
Ohio 44114, Attention: Maribeth Echan (Facsimile No. (216) 781-2271);




     (iii) if to the Issuing Bank, to it at JPMorgan Chase Bank, National Association,
JPMorgan Loan Services, 10 South Dearborn Street, 7th Floor, Chicago, Illinois
60603, Attention: LaDesiree Williams (Facsimile No. (312) 732-4864);




     (iv) if to the Swingline Lender, to it at JPMorgan Chase Bank, National Association,
JPMorgan Loan Services, 10 South Dearborn Street, 7th Floor, Chicago, Illinois
60603, Attention: LaDesiree Williams (Facsimile No. (312) 732-4864); and




     (v) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.



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




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




          SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of any Loan Document or consent to any
departure by any Loan Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether the



65









 






Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time.




          (b) Except as provided in Section 2.20 with respect to an Incremental Term Loan Amendment,
neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders or
by the Borrowers and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement
or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender directly affected thereby, (iii) postpone the scheduled date of payment of
the principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled
date of expiration of any Commitment, without the written consent of each Lender directly affected
thereby, (iv) change Section 2.18(b) or (d) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section or the definition of “Required Lenders” or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the written consent of
each Lender (it being understood that, solely with the consent of the parties prescribed by Section
2.20 to be parties to an Incremental Term Loan Amendment, Incremental Term Loans may be included in
the determination of Required Lenders on substantially the same basis as the Commitments and the
Revolving Loans are included on the Effective Date), (vi) release the Company or all or
substantially all of the Subsidiary Guarantors from their obligations under Article X or the
Subsidiary Guaranty, or (vii) except as provided in clause (d) of this Section or in any Collateral
Document, release all or substantially all of the Collateral, without the written consent of each
Lender; provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Issuing Bank or the Swingline Lender
hereunder without the prior written consent of the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be.




          (c) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended
(or amended and restated) with the written consent of the Required Lenders, the Administrative
Agent and each Borrower to each relevant Loan Document (x) to add Incremental Term Loans to share
ratably in the benefits of this Agreement and the other Loan Documents with the Revolving Loans and
the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders
holding such Incremental Term Loans in any determination of the Required Lenders and Lenders.




          (d) The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in
its sole discretion, to release any Liens granted to the Administrative Agent by the Loan Parties
on any Collateral (i) upon the termination of all the Commitments, payment and satisfaction in full
in cash of all Secured Obligations (other than Unliquidated Obligations), and the cash
collateralization of all Unliquidated Obligations in a manner satisfactory to the Administrative
Agent, (ii) constituting property being sold or disposed of if the Company certifies to the
Administrative Agent that the sale or disposition is made in compliance with the terms of this
Agreement (and the Administrative Agent may rely conclusively on any such certificate, without
further inquiry), (iii) constituting property leased to the Company or any Subsidiary under a lease
which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as
required to effect any sale or other disposition of such Collateral in connection with any exercise
of remedies of the Administrative Agent and the Lenders pursuant to Article VII. Any such release
shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those
expressly being released) upon (or obligations of the Loan Parties in respect of) all



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interests retained by the Loan Parties, including the proceeds of any sale, all of which shall
continue to constitute part of the Collateral.




          (e) If, in connection with any proposed amendment, waiver or consent requiring the consent
of “each Lender” or “each Lender affected thereby,” the consent of the Required Lenders is
obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent
is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then
the Company may elect to replace a Non-Consenting Lender as a Lender party to this Agreement;
provided that, concurrently with such replacement, (i) another bank or other entity which
is reasonably satisfactory to the Company and the Administrative Agent shall agree, as of such
date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender
pursuant to an Assignment and Assumption and to become a Lender for all purposes under this
Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such
date and to comply with the requirements of clause (b) of Section 9.04, and (ii) each Borrower
shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all
interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by such
Borrower hereunder to and including the date of termination, including without limitation payments
due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to
the payment which would have been due to such Lender on the day of such replacement under Section
2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the
replacement Lender.




          SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Company shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the Administrative Agent,
in connection with the syndication and distribution (including, without limitation, via the
internet or through a service such as Intralinks) of the credit facilities provided for herein, the
preparation and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses
incurred by the Administrative Agent, the Issuing Bank or any Lender, including the fees, charges
and disbursements of any counsel for the Administrative Agent, the Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection with this Agreement and
any other Loan Document, including its rights under this Section, or in connection with the Loans
made or Letters of Credit issued hereunder, including all such reasonable out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.




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



67









 






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




          (c) To the extent that the Company fails to pay any amount required to be paid by it to the
Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender’s Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount
(it being understood that the Company’s failure to pay any such amount shall not relieve the
Company of any default in the payment thereof); provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, the Issuing Bank or the Swingline Lender in its
capacity as such.




          (d) To the extent permitted by applicable law, no Borrower shall assert, and each Borrower
hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the Transactions, any Loan or Letter of Credit or the
use of the proceeds thereof.




          (e) All amounts due under this Section shall be payable not later than fifteen (15) days
after written demand therefor.




          SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that (i) no Borrower may 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 any Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Agreement.





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




     (A) the Company; provided that no consent of the Company shall be
required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund
or, if an Event of Default has occurred and is continuing, any other assignee;




     (B) the Administrative Agent; and



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     (C) the Issuing Bank.




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




     (A) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitment or Loans of any Class, the amount of the Commitment or 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 $5,000,000 unless each of the Company
and the Administrative Agent otherwise consent; provided that no such
consent of the Company shall be required if an Event of Default has occurred and is
continuing;




     (B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement;
provided that this clause shall not be construed to prohibit the assignment
of a proportionate part of all the assigning Lender’s rights and obligations in
respect of one Class of Commitments or Loans;




     (C) 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;




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




     (E) other than assignments to an existing Lender, assignments shall always be
in an amount exceeding €50.000 or the equivalent thereof in a foreign currency.



          For the purposes of this Section 9.04(b), the term “Approved Fund” means any Person
(other than a natural person) that is engaged in making, purchasing, holding or investing in bank
loans and similar extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.




          (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.




          (iv) The Administrative Agent, acting for this purpose as an agent of each Borrower, shall
maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Commitment of, and
principal amount of the Loans and LC Disbursements owing to, each Lender pursuant to the terms
hereof



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from time to time (the “Register”). The entries in the Register shall be conclusive,
and the Borrowers, the Administrative Agent, the Issuing Bank and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Company, the Issuing Bank 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 assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided that if either the assigning Lender
or the assignee shall have failed to make any payment required to be made by it pursuant to Section
2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), the Administrative Agent shall have no
obligation to accept such Assignment and Assumption and record the information therein in the
Register unless and until such payment shall have been made in full, together with all accrued
interest thereon. 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 Company, the Administrative Agent, the
Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrowers, the Administrative Agent, the Issuing Bank and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any amendment, modification
or waiver described in the first proviso to Section 9.02(b) that affects such Participant. Subject
to paragraph (c)(ii) of this Section, each Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.15, 2.16 and 2.17 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 9.08 as though
it were a Lender; provided such Participant agrees to be subject to Section 2.18(c) as
though it were a Lender.




          (ii) A Participant shall not be entitled to receive any greater payment under Section 2.15 or
2.17 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 Company’s prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.17 unless the Company is notified
of the participation sold to such Participant and such Participant agrees, for the benefit of the
Company, to comply with Section 2.17(e) as though it were a Lender.




          (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 without limitation
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



70









 






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.




          SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Loan Parties in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of
any Default or incorrect representation or warranty at the time any credit is extended hereunder,
and shall continue in full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have
not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII
shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the
Letters of Credit and the Commitments or the termination of this Agreement or any other Loan
Document or any provision hereof or thereof.




          SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Documents and any separate letter agreements with respect
to fees payable to the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.




          SECTION 9.07. Severability. Any provision of any Loan Document held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions thereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.




          SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final and in whatever currency denominated) at any time
held and other obligations at any time owing by such Lender or Affiliate to or for the credit or
the account of any Borrower or any Subsidiary Guarantor against any of and all the Secured
Obligations held by such Lender, irrespective of whether or not such Lender shall have made any
demand under the Loan Documents and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.




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          SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.




          (b) Each Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in
New York County and of the United States District Court of the Southern District of New York, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or any other Loan
Document against any Loan Party or its properties in the courts of any jurisdiction.




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




          (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Each Foreign Subsidiary Borrower irrevocably designates and
appoints the Company, as its authorized agent, to accept and acknowledge on its behalf, service of
any and all process which may be served in any suit, action or proceeding of the nature referred to
in Section 9.09(b) in any federal or New York State court sitting in New York City. The Company
hereby represents, warrants and confirms that the Company has agreed to accept such appointment
(and any similar appointment by a Subsidiary Guarantor which is a Foreign Subsidiary). Said
designation and appointment shall be irrevocable by each such Foreign Subsidiary Borrower until all
Loans, all reimbursement obligations, interest thereon and all other amounts payable by such
Foreign Subsidiary Borrower hereunder and under the other Loan Documents shall have been paid in
full in accordance with the provisions hereof and thereof and such Foreign Subsidiary Borrower
shall have been terminated as a Borrower hereunder pursuant to Section 2.23. Each Foreign
Subsidiary Borrower hereby consents to process being served in any suit, action or proceeding of
the nature referred to in Section 9.09(b) in any federal or New York State court sitting in New
York City by service of process upon the Company as provided in this Section 9.09(d);
provided that, to the extent lawful and possible, notice of said service upon such agent
shall be mailed by registered or certified air mail, postage prepaid, return receipt requested, to
the Company and (if applicable to) such Foreign Subsidiary Borrower at its address set forth in the
Borrowing Subsidiary Agreement to which it is a party or to any other address of which such Foreign
Subsidiary Borrower shall have given written notice to the Administrative Agent (with a copy
thereof to the Company). Each Foreign Subsidiary Borrower irrevocably waives, to the fullest
extent permitted by law, all claim of error by reason of any such service in such manner and agrees
that such service shall be deemed in every respect effective service of process upon such Foreign
Subsidiary Borrower in any such suit, action or proceeding and shall, to the fullest extent
permitted by law, be taken and held to be valid and personal service upon and personal delivery to
such Foreign Subsidiary Borrower. To the extent any Foreign Subsidiary Borrower has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal process (whether from
service or notice, attachment prior to judgment, attachment in aid of execution of a judgment,
execution or otherwise), each Foreign



72









 






Subsidiary Borrower hereby irrevocably waives such immunity in respect of its obligations
under the Loan Documents. Nothing in this Agreement or any other Loan Document will affect the
right of any party to this Agreement to serve process in any other manner permitted by law.




          SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.




          SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.




          SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank
and the Lenders agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates’ directors, officers,
employees and agents, including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), and that the disclosing
Administrative Agent, Issuing Bank or Lender will be responsible for any unauthorized disclosure by
any of its foregoing affiliated Persons), (b) to the extent requested by any regulatory authority,
(c) to the extent required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap
or derivative transaction relating to any Borrower and its obligations, (g) with the consent of the
Company or (h) to the extent such Information (i) becomes publicly available other than as a result
of a breach of this Section or (ii) becomes available to the Administrative Agent, the Issuing Bank
or any Lender on a nonconfidential basis from a source other than the Company. For the purposes of
this Section, “Information” means all information received from the Company or any
Subsidiary relating to the Company, any of its Subsidiaries or its business, other than any such
information that is available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by the Company. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.




          SECTION 9.13. USA PATRIOT Act. Each Lender that is subject to the requirements of
the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”) hereby notifies each Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies such Borrower, which information
includes the name and address of



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such Borrower and other information that will allow such Lender to identify such Borrower in
accordance with the Act.




          SECTION 9.14. Appointment for Perfection. Each Lender hereby appoints each other
Lender as its agent for the purpose of perfecting Liens, for the benefit of the Administrative
Agent and the Holders of Secured Obligations, in assets which, in accordance with Article 9 of the
UCC or any other applicable law can be perfected only by possession. Should any Lender (other than
the Administrative Agent) obtain possession of any such Collateral, such Lender shall notify the
Administrative Agent thereof, and, promptly upon the Administrative Agent’s request therefor shall
deliver such Collateral to the Administrative Agent or otherwise deal with such Collateral in
accordance with the Administrative Agent’s instructions.




ARTICLE X




Cross-Guarantee




          In order to induce the Lenders to extend credit to the other Borrowers hereunder, but subject
to the last sentence of this Article X, each Borrower hereby irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, the payment when and as due of the
Obligations of such other Borrowers. Each Borrower further agrees that the due and punctual
payment of such Obligations may be extended or renewed, in whole or in part, without notice to or
further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding
any such extension or renewal of any such Obligation.




          Each Borrower waives presentment to, demand of payment from and protest to any Borrower of any
of the Obligations, and also waives notice of acceptance of its obligations and notice of protest
for nonpayment. The obligations of each Borrower hereunder shall not be affected by (a) the
failure of the Administrative Agent, the Issuing Bank or any Lender to assert any claim or demand
or to enforce any right or remedy against any Borrower under the provisions of this Agreement, any
other Loan Document or otherwise; (b) any extension or renewal of any of the Obligations; (c) any
rescission, waiver, amendment or modification of, or release from, any of the terms or provisions
of this Agreement, or any other Loan Document or agreement; (d) any default, failure or delay,
willful or otherwise, in the performance of any of the Obligations; (e) the failure of the
Administrative Agent to take any steps to perfect and maintain any security interest in, or to
preserve any rights to, any security or collateral for the Obligations, if any; (f) any change in
the corporate, partnership or other existence, structure or ownership of any Borrower or any other
guarantor of any of the Obligations; (g) the enforceability or validity of the Obligations or any
part thereof or the genuineness, enforceability or validity of any agreement relating thereto or
with respect to any collateral securing the Obligations or any part thereof, or any other
invalidity or unenforceability relating to or against any Borrower or any other guarantor of any of
the Obligations, for any reason related to this Agreement, any Swap Agreement, any other Loan
Document, or any provision of applicable law, decree, order or regulation of any jurisdiction
purporting to prohibit the payment by such Borrower or any other guarantor of the Obligations, of
any of the Obligations or otherwise affecting any term of any of the Obligations; or (h) any other
act, omission or delay to do any other act which may or might in any manner or to any extent vary
the risk of such Borrower or otherwise operate as a discharge of a guarantor as a matter of law or
equity or which would impair or eliminate any right of such Borrower to subrogation.




          Each Borrower further agrees that its agreement hereunder constitutes a guarantee of payment
when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or
collection of any of the Obligations or operated as a discharge thereof) and not merely of
collection, and waives any right to require that any resort be had by the Administrative Agent, the
Issuing Bank or any



74









 






Lender to any balance of any deposit account or credit on the books of the Administrative
Agent, the Issuing Bank or any Lender in favor of any Borrower or any other Person.




          The obligations of each Borrower hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, and shall not be subject to any defense or set-off,
counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or
unenforceability of any of the Obligations, any impossibility in the performance of any of the
Obligations or otherwise.




          Each Borrower further agrees that its obligations hereunder shall continue to be effective or
be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation
is rescinded or must otherwise be restored by the Administrative Agent, the Issuing Bank or any
Lender upon the bankruptcy or reorganization of any Borrower or otherwise.




          In furtherance of the foregoing and not in limitation of any other right which the
Administrative Agent, the Issuing Bank or any Lender may have at law or in equity against any
Borrower by virtue hereof, upon the failure of any other Borrower to pay any Obligation when and as
the same shall become due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, each Borrower hereby promises to and will, upon receipt of written demand by the
Administrative Agent, the Issuing Bank or any Lender, forthwith pay, or cause to be paid, to the
Administrative Agent, the Issuing Bank or any Lender in cash an amount equal to the unpaid
principal amount of such Obligations then due, together with accrued and unpaid interest thereon.
Each Borrower further agrees that if payment in respect of any Obligation shall be due in a
currency other than Dollars and/or at a place of payment other than New York, Chicago or any other
Eurocurrency Payment Office and if, by reason of any Change in Law, disruption of currency or
foreign exchange markets, war or civil disturbance or other event, payment of such Obligation in
such currency or at such place of payment shall be impossible or, in the reasonable judgment of the
Administrative Agent, the Issuing Bank or any Lender, disadvantageous to the Administrative Agent,
the Issuing Bank or any Lender in any material respect, then, at the election of the Administrative
Agent, such Borrower shall make payment of such Obligation in Dollars (based upon the applicable
Equivalent Amount in effect on the date of payment) and/or in New York, Chicago or such other
Eurocurrency Payment Office as is designated by the Administrative Agent and, as a separate and
independent obligation, shall indemnify the Administrative Agent, the Issuing Bank and any Lender
against any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such
alternative payment.




          Upon payment by any Borrower of any sums as provided above, all rights of such Borrower
against any Borrower arising as a result thereof by way of right of subrogation or otherwise shall
in all respects be subordinated and junior in right of payment to the prior indefeasible payment in
full in cash of all the Obligations owed by such Borrower to the Administrative Agent, the Issuing
Bank and the Lenders.




          Nothing shall discharge or satisfy the liability of any Borrower hereunder except the full
performance and payment of the Obligations.




          Notwithstanding anything contained in this Article X to the contrary, no Foreign Subsidiary
Borrower which is and remains an Affected Foreign Subsidiary shall be liable hereunder for any of
the Loans made to, or any other Obligation incurred solely by or on behalf of, the Company or any
Subsidiary Guarantor which is a Domestic Subsidiary.




[Signature Pages Follow]




75









 





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



	 	 	 	 	 
	 	BRUSH ENGINEERED MATERIALS INC., 

as the Company

 	 
	 	By:  	/s/ Michael C. Hasychak
 	 
	 	 	Name:  	Michael C. Hasychak 	 
	 	 	Title:  	Vice President, Treasurer and Secretary 	 
	 



	 	 	 	 	 
	 	WILLIAMS ADVANCED MATERIALS 

(NETHERLANDS) B.V., as the Dutch Borrower

 	 
	 	By:  	/s/ Cynthia H. Friedman
 	 
	 	 	Name:  	Cynthia H. Friedman 	 
	 	 	Title:  	Class A Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                         /s/ James P. Marrotte
 	 
	 	 	Name:  	James P. Marrotte 	 
	 	 	Title:  	Class A Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                         /s/ Bernard van Polanen, /s/ Barbara Visser
 	 
	 	 	Name:  	Bernard van Polansen, Barabara Visser 	 
	 	 	Title:  	Class B Director 	 
	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, individually as a Lender, as Swingline Lender,
as Issuing Bank and as Administrative Agent

 	 
	 	By:  	/s/ William P. McGreehan
 	 
	 	 	Name:  	William P. McGreehan 	 
	 	 	Title:  	Senior Vice President, Division Manager	 
	 
	 	 	[OTHER AGENTS AND LENDERS]