exv10w1



 





EXHIBIT 10.1



EXECUTION COPY



 




FIFTH AMENDED AND RESTATED



CREDIT AGREEMENT




Dated as of May 9, 2007,




Among




TRW AUTOMOTIVE HOLDINGS CORP.,



TRW AUTOMOTIVE
INTERMEDIATE HOLDINGS CORP.,

TRW AUTOMOTIVE INC. (f/k/a

TRW AUTOMOTIVE ACQUISITION CORP.),

THE FOREIGN SUBSIDIARY BORROWERS PARTY HERETO,

THE LENDERS PARTY HERETO,

JPMORGAN CHASE BANK, N.A.

(f/k/a JPMORGAN CHASE BANK),

as Administrative Agent,




and




BANK OF AMERICA, N.A.,

as Syndication Agent




 






J.P. MORGAN SECURITIES INC. and

BANC OF AMERICA SECURITIES LLC,




as Lead Arrangers




and




J.P. MORGAN SECURITIES INC. and

BANC OF AMERICA SECURITIES LLC,

as Joint Bookrunners



 










 



 



TABLE OF CONTENTS




Page(s)




	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 
	ARTICLE I

	 	 	 
	 	 	 	 
	Definitions

	 	 	 
	 	 	 	 
	SECTION 1.01.	 	Defined Terms
	 	 	5	 
	SECTION 1.02.	 	Terms Generally
	 	 	58	 
	SECTION 1.03.	 	Exchange Rates
	 	 	58	 
	SECTION 1.04.	 	Redenomination of Certain Foreign Currencies
	 	 	59	 
	SECTION 1.05.	 	Effectuation of Transfers
	 	 	59	 
	 	 	 
	 	 	 	 
	ARTICLE II

	 	 	 
	 	 	 	 
	The Credits

	 	 	 
	 	 	 	 
	SECTION 2.01.	 	Commitments
	 	 	59	 
	SECTION 2.02.	 	Loans and Borrowings
	 	 	60	 
	SECTION 2.03.	 	Requests for Borrowings
	 	 	61	 
	SECTION 2.04.	 	Swingline Loans
	 	 	62	 
	SECTION 2.05.	 	Letters of Credit
	 	 	65	 
	SECTION 2.06.	 	Funding of Borrowings
	 	 	71	 
	SECTION 2.07.	 	Interest Elections
	 	 	72	 
	SECTION 2.08.	 	Termination and Reduction of Commitments
	 	 	74	 
	SECTION 2.09.	 	Repayment of Loans; Evidence of Debt
	 	 	74	 
	SECTION 2.10.	 	Repayment of Term Loans and Revolving Loans
	 	 	75	 
	SECTION 2.11.	 	Prepayment of Loans
	 	 	78	 
	SECTION 2.12.	 	Fees
	 	 	79	 
	SECTION 2.13.	 	Interest
	 	 	80	 
	SECTION 2.14.	 	Alternate Rate of Interest
	 	 	81	 
	SECTION 2.15.	 	Increased Costs
	 	 	82	 
	SECTION 2.16.	 	Break Funding Payments
	 	 	83	 
	SECTION 2.17.	 	Taxes
	 	 	84	 
	SECTION 2.18.	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	85	 
	SECTION 2.19.	 	Mitigation Obligations; Replacement of Lenders
	 	 	87	 
	SECTION 2.20.	 	Foreign Subsidiary Borrowers
	 	 	88	 
	SECTION 2.21.	 	Additional Reserve Costs
	 	 	89	 
	SECTION 2.22.	 	Ancillary Facilities
	 	 	90	 
	SECTION 2.23.	 	Incremental Extensions of Credit
	 	 	95	 












 



2

Page(s)



	 	 	 	 	 	 	 
	ARTICLE III

	 	 	 
	 	 	 	 
	Representations and Warranties

	 	 	 
	 	 	 	 
	SECTION 3.01.	 	Organization; Powers
	 	 	96	 
	SECTION 3.02.	 	Authorization
	 	 	97	 
	SECTION 3.03.	 	Enforceability
	 	 	97	 
	SECTION 3.04.	 	Governmental Approvals
	 	 	97	 
	SECTION 3.05.	 	Financial Statements
	 	 	97	 
	SECTION 3.06.	 	No Material Adverse Change or Material Adverse Effect
	 	 	98	 
	SECTION 3.07.	 	Title to Properties; Possession Under Leases
	 	 	98	 
	SECTION 3.08.	 	Subsidiaries
	 	 	99	 
	SECTION 3.09.	 	Litigation; Compliance with Laws
	 	 	99	 
	SECTION 3.10.	 	Federal Reserve Regulations
	 	 	100	 
	SECTION 3.11.	 	Investment Company Act
	 	 	100	 
	SECTION 3.12.	 	Use of Proceeds
	 	 	100	 
	SECTION 3.13.	 	Tax Returns
	 	 	100	 
	SECTION 3.14.	 	No Material Misstatements
	 	 	101	 
	SECTION 3.15.	 	Employee Benefit Plans
	 	 	101	 
	SECTION 3.16.	 	Environmental Matters
	 	 	102	 
	SECTION 3.17.	 	Security Documents
	 	 	102	 
	SECTION 3.18.	 	Location of Real Property and Leased Premises
	 	 	103	 
	SECTION 3.19.	 	Solvency
	 	 	104	 
	SECTION 3.20.	 	Labor Matters
	 	 	104	 
	SECTION 3.21.	 	Insurance
	 	 	105	 
	 	 	 
	 	 	 	 
	ARTICLE IV

	 	 	 
	 	 	 	 
	Conditions

	 	 	 
	 	 	 	 
	SECTION 4.01.	 	Effectiveness of Restated Credit Agreement
	 	 	105	 
	SECTION 4.02.	 	All Credit Events
	 	 	108	 
	SECTION 4.03.	 	Credit Events Relating to Foreign Subsidiary Borrowers
	 	 	108	 
	 	 	 
	 	 	 	 
	ARTICLE V

	 	 	 
	 	 	 	 
	Affirmative Covenants

	 	 	 
	 	 	 	 
	SECTION 5.01.	 	Existence; Businesses and Properties
	 	 	109	 
	SECTION 5.02.	 	Insurance
	 	 	110	 
	SECTION 5.03.	 	Taxes
	 	 	112	 
	SECTION 5.04.	 	Financial Statements, Reports, etc
	 	 	113	 
	SECTION 5.05.	 	Litigation and Other Notices
	 	 	115	 
	SECTION 5.06.	 	Compliance with Laws
	 	 	115	 
	SECTION 5.07.	 	Maintaining Records; Access to Properties and Inspections
	 	 	115	 
	SECTION 5.08.	 	Use of Proceeds
	 	 	116	 












 



3

Page(s)



	 	 	 	 	 	 	 
	SECTION 5.09.	 	Compliance with Environmental Laws
	 	 	116	 
	SECTION 5.10.	 	Further Assurances; Additional Mortgages
	 	 	116	 
	SECTION 5.11.	 	Fiscal Year; Accounting
	 	 	118	 
	SECTION 5.12.	 	[Intentionally Omitted]
	 	 	118	 
	SECTION 5.13.	 	Proceeds of Certain Dispositions
	 	 	118	 
	SECTION 5.14.	 	Post Restatement Effective Date Matters
	 	 	119	 
	SECTION 5.15.	 	Collateral Release
	 	 	119	 
	 	 	 
	 	 	 	 
	ARTICLE VI

	 	 	 
	 	 	 	 
	Negative Covenants

	 	 	 
	 	 	 	 
	SECTION 6.01.	 	Indebtedness
	 	 	120	 
	SECTION 6.02.	 	Liens
	 	 	123	 
	SECTION 6.03.	 	Sale and Lease-Back Transactions
	 	 	125	 
	SECTION 6.04.	 	Investments, Loans and Advances
	 	 	125	 
	SECTION 6.05.	 	Mergers, Consolidations, Sales of Assets and Acquisitions
	 	 	128	 
	SECTION 6.06.	 	Dividends and Distributions
	 	 	130	 
	SECTION 6.07.	 	Transactions with Affiliates
	 	 	132	 
	SECTION 6.08.	 	Business of Holdings, Intermediate Holdings, the U.S. Borrower and the Subsidiaries
	 	 	133	 
	SECTION 6.09.	 	Limitation
on Modifications of Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements; etc
	 	 	134	 
	SECTION 6.10.	 	[Intentionally Omitted.]
	 	 	136	 
	SECTION 6.11.	 	Interest Coverage Ratio
	 	 	136	 
	SECTION 6.12.	 	Leverage Ratio
	 	 	137	 
	SECTION 6.13.	 	Swap Agreements
	 	 	137	 
	 	 	 
	 	 	 	 
	ARTICLE VII

	 	 	 
	 	 	 	 
	Events of Default

	 	 	 
	 	 	 	 
	SECTION 7.01.	 	Events of Default
	 	 	138	 
	SECTION 7.02.	 	Exclusion of Immaterial Subsidiaries
	 	 	141	 
	SECTION 7.03.	 	U.S. Borrower’s Right to Cure
	 	 	141	 
	 	 	 
	 	 	 	 
	ARTICLE VIII

	 	 	 
	 	 	 	 
	The Agents

	 	 	 
	 	 	 	 
	SECTION 8.01.	 	Appointment
	 	 	142	 
	SECTION 8.02.	 	Nature of Duties
	 	 	143	 
	SECTION 8.03.	 	Resignation by the Agents
	 	 	144	 
	SECTION 8.04.	 	Each Agent in its Individual Capacity
	 	 	144	 
	SECTION 8.05.	 	Indemnification
	 	 	144	 












 



4

Page(s)



	 	 	 	 	 	 	 
	SECTION 8.06.	 	Lack of Reliance on Agents
	 	 	145	 
	SECTION 8.07.	 	Designation of Affiliates for Foreign Currency Loans
	 	 	145	 
	 	 	 
	 	 	 	 
	ARTICLE IX

	 	 	 
	 	 	 	 
	Miscellaneous

	 	 	 
	 	 	 	 
	SECTION 9.01.	 	Notices
	 	 	145	 
	SECTION 9.02.	 	Survival of Agreement
	 	 	146	 
	SECTION 9.03.	 	Binding Effect
	 	 	147	 
	SECTION 9.04.	 	Successors and Assigns
	 	 	147	 
	SECTION 9.05.	 	Expenses; Indemnity
	 	 	151	 
	SECTION 9.06.	 	Right of Set-off
	 	 	153	 
	SECTION 9.07.	 	Applicable Law
	 	 	153	 
	SECTION 9.08.	 	Waivers; Amendment
	 	 	153	 
	SECTION 9.09.	 	Interest Rate Limitation
	 	 	155	 
	SECTION 9.10.	 	Entire Agreement
	 	 	155	 
	SECTION 9.11.	 	WAIVER OF JURY TRIAL
	 	 	155	 
	SECTION 9.12.	 	Severability
	 	 	155	 
	SECTION 9.13.	 	Counterparts
	 	 	156	 
	SECTION 9.14.	 	Headings
	 	 	156	 
	SECTION 9.15.	 	Jurisdiction; Consent to Service of Process
	 	 	156	 
	SECTION 9.16.	 	Confidentiality
	 	 	156	 
	SECTION 9.17.	 	Conversion of Currencies
	 	 	158	 
	SECTION 9.18.	 	USA PATRIOT Act
	 	 	158	 
	 	 	 
	 	 	 	 
	ARTICLE X

	 	 	 
	 	 	 	 
	Ancillary Facility Adjustments

	 	 	 
	 	 	 	 
	SECTION 10.01.	 	Exchange of Interests in Ancillary Facilities
	 	 	158	 
	 	 	 
	 	 	 	 
	ARTICLE XI

	 	 	 
	 	 	 	 
	Collection Allocation Mechanism

	 	 	 
	 	 	 	 
	SECTION 11.01.	 	Implementation of CAM
	 	 	160	 
	SECTION 11.02.	 	Letters of Credit and Unfunded Ancillary Credit Extensions
	 	 	161	 
	SECTION 11.03.	 	Existing Credit Agreement; Effectiveness of this Agreement
	 	 	163	 












 



5


	 	 	 
	Exhibits and Schedules
	 
	 	 
	Exhibit A

	 	Form of Assignment and Acceptance
	Exhibit B

	 	Form of Administrative Questionnaire
	Exhibit C-1

	 	Form of Borrowing Request
	Exhibit C-2

	 	Form of Swingline Borrowing Request
	Exhibit D

	 	Form of U.S. Mortgage
	Exhibit E

	 	Form of U.S. Collateral Agreement
	Exhibit F

	 	Form of Foreign Guarantee
	Exhibit G

	 	Form of Finco Guarantee
	Exhibit H

	 	[Intentionally Omitted]
	Exhibit I

	 	[Intentionally Omitted]
	Exhibit J

	 	[Intentionally Omitted]
	Exhibit K-1

	 	Form of Foreign Subsidiary Borrower Agreement
	Exhibit K-2

	 	Form of Foreign Subsidiary Borrower Termination
	Exhibit L

	 	Reserve Costs for Mandatory Costs Rate
	Exhibit M

	 	[Intentionally Omitted]
	Exhibit N

	 	[Intentionally Omitted]
	Exhibit O

	 	Form of Opinion of Simpson Thacher & Bartlett LLP
	Exhibit P

	 	Form of Reaffirmation Agreement
	 
	 	 
	Schedule 1.01(a)

	 	Acquired Foreign Subsidiaries
	Schedule 1.01(b)

	 	Foreign Acquirors, Foreign Acquiror Equity Contributions and Foreign Acquiror Loans
	Schedule 1.01(c)

	 	Restatement Effective Date Ancillary Facilities
	Schedule 1.01(d)

	 	Foreign Pledge Agreements
	Schedule 1.01(e)

	 	Foreign Subsidiary Loan Parties
	Schedule 1.01(f)

	 	Ancillary Facility Limits
	Schedule 1.01(g)

	 	Collateral and Guarantee Requirement
	Schedule 1.01(h)

	 	Certain U.S. Subsidiaries
	Schedule 1.01(i)

	 	Restatement Effective Date Foreign Subsidiary Borrower Agreements
	Schedule 2.01

	 	Commitments
	Schedule 2.04(a)

	 	Swingline Dollar Commitments
	Schedule 2.04(b)

	 	Swingline Foreign Currency Commitments
	Schedule 3.01

	 	Organization and Good Standing
	Schedule 3.04

	 	Governmental Approvals
	Schedule 3.08(b)

	 	Subsidiaries
	Schedule 3.08(c)

	 	Subscriptions
	Schedule 3.09

	 	Litigation
	Schedule 3.13

	 	Taxes
	Schedule 3.18

	 	Mortgaged Properties
	Schedule 3.20

	 	Labor Matters
	Schedule 3.21

	 	Insurance












 



6


	 	 	 
	Schedule 4.01

Schedule 5.14

Schedule 6.02

Schedule 6.03

Schedule 6.04(h) 

Schedule 6.07

	 	Restatement Effective Date Collateral Matters 

Post Restatement Effective Date Collateral Matters 

Liens 

Sale and Lease-Back Transactions 

Existing Investments 

Transactions with Affiliates












 



 



     FIFTH AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 9, 2007
(this “Agreement”), among TRW AUTOMOTIVE HOLDINGS CORP., a Delaware
corporation (“Holdings”), TRW AUTOMOTIVE INTERMEDIATE HOLDINGS CORP., a
Delaware corporation (“Intermediate Holdings”), TRW AUTOMOTIVE INC. (f/k/a
TRW AUTOMOTIVE ACQUISITION CORP.), a Delaware corporation (the “U.S.
Borrower”), the FOREIGN SUBSIDIARY BORROWERS party hereto, the LENDERS
party hereto from time to time, JPMORGAN CHASE BANK, N.A. (f/k/a JPMORGAN
CHASE BANK), as administrative agent (in such capacity, the
“Administrative Agent”), and as collateral agent (in such capacity, the
“Collateral Agent”) for the Lenders, and BANK OF AMERICA, N.A., as
syndication agent (in such capacity, the “Syndication Agent”).



          Pursuant to or in connection with the Purchase Agreement (with such term and each other
capitalized term used but not defined in this preamble having the meaning assigned thereto in
Article I), (a) the Equity Contributions were made, (b) the financing transactions described in
this preamble were consummated, (c) the Finco Equity Contribution, the Finco Loan, the Newco UK
Equity Contribution, the Newco UK Loan, the Foreign Acquiror Equity Contributions and the Foreign
Acquiror Loans were consummated, (d) the Stock Purchases were consummated, and (e) fees and
expenses (the “Transaction Costs”) incurred in connection with the foregoing were paid.



          On the Closing Date, (a) Automotive Investors L.L.C., a Delaware limited liability company
(“AILLC”) and a Fund Affiliate, the Management Group and the Management Equity Vehicle together,
contributed not less than $500,000,000 in cash to Holdings in exchange for not less than 500,000
shares of Holdings Common Stock (the “Holdings Equity Contribution”), (b) Holdings contributed (i)
the proceeds of the Holdings Equity Contribution and (ii) a number of shares of Holdings Common
Stock (the “Stock Consideration”), that taken together with the shares issued pursuant to the
Holdings Equity Contribution had an implied value of not less than $868,000,000, to Intermediate
Holdings, in exchange for all the issued and outstanding Equity Interests of Intermediate Holdings
(the “Intermediate Holdings Equity Contribution”), (c) Intermediate Holdings contributed to the
U.S. Borrower in exchange for all the issued and outstanding Equity Interests of the U.S. Borrower
(i) the cash proceeds of the Intermediate Holdings Equity Contribution, (ii) the Stock
Consideration and (iii) 62.7% shares of LucasVarity Automotive Holding Co., a Delaware corporation
(“LucasVarity Holdings”), purchased by Intermediate Holdings from a subsidiary of Northrop Space
and Mission in exchange for a note (the “Seller Note”) in an aggregate principal amount of
$600,000,000 issued by Intermediate Holdings and (d) the U.S. Borrower contributed $10,000,000 in
cash to Automotive (LV) Corp. in exchange for all the issued and outstanding Equity Interests of
Automotive (LV) Corp. (the steps described in clauses (a)-(d) of this paragraph together, the
"Equity Contributions”).









 



2


          On February 18, 2003, the U.S. Borrower issued and sold in offerings pursuant to Rule 144A
under the Securities Act of 1933 (the “Securities Act”) and Regulation S under the Securities Act
(a) Senior Notes having an aggregate principal amount of $925,000,000, (b) Senior Notes having an
aggregate principal amount of €200,000,000, (c) Senior Subordinated Notes having an aggregate
principal amount of $300,000,000 and (d) Senior Subordinated Notes having an aggregate principal
amount of €125,000,000.



          Simultaneously with the consummation of the Equity Contributions, (a) the U.S. Borrower
obtained, and made Borrowings in an aggregate amount the Dollar Equivalent of which is not in
excess of $1,544,000,000 under, the senior secured credit facilities provided for by the Original
Credit Agreement, (b) the U.S. Borrower made the Management Equity Loan and (c) the U.S. Borrower
and certain of the Subsidiaries obtained $150,000,000 in proceeds under the Permitted Receivables
Financing.



          Prior to the consummation of the transactions described in the immediately preceding sentence,
the U.S. Borrower contributed €12,500 in cash to Finco in exchange for all of the issued and
outstanding Equity Interests of Finco (the “Finco Equity Contributions”). Concurrently with the
consummation of the transactions described in the immediately preceding paragraph, (a) the U.S.
Borrower (i) made the Foreign Acquiror Equity Contributions and the Finco Loan and (ii) contributed
no more than $12,000,000 to Automotive Holdings (UK), Ltd. (“Newco UK”) in exchange for all the
issued and outstanding Equity Interests of Newco UK (the “Newco UK Equity Contribution”) and made
the Newco UK Loan, (b) Finco used the proceeds of the Finco Loan to make the Foreign Acquiror
Loans, (c) the U.S. Borrower purchased from a subsidiary of Northrop Space and Mission all the
issued and outstanding shares of LucasVarity Holdings not purchased by Intermediate Holdings (as
described above) for $356,510,000 in cash, (d) (i) the Foreign Acquirors used the proceeds of the
Foreign Acquiror Equity Contributions and the Foreign Acquiror Loans to purchase from subsidiaries
of Northrop Space and Mission all the Equity Interests of the Acquired Foreign Subsidiaries and
(ii) Newco UK used the proceeds of the Newco UK Equity Contribution and the Newco UK Loan to
acquire 80.4% of the issued and outstanding shares of LucasVarity, a company organized under the
laws of England and Wales (“LucasVarity”) and all the issued and outstanding Equity Interests in
TRW UK Ltd and all the issued and outstanding Equity Interests of TRW INO Ltd., (e) Automotive
Holdings (France) S.A.S. purchased no less than 90% of the Equity Interests of TRW France Holdings
SAS from Lucas Investments, Limited in exchange for a subordinated note of Automotive Holdings
(France) S.A.S. in an aggregate principal amount of up to $542,000,000, (f) Automotive (LV) Corp.
purchased from a subsidiary of Northrop Space and Mission 1% of the issued and outstanding
LucasVarity shares for $10,000,000 in cash, (g) the U.S. Borrower purchased from a subsidiary of
Northrop Space and Mission (i) all the issued and outstanding LucasVarity shares not purchased by
Automotive (LV) Corp. or Newco UK, and (ii) all the issued and outstanding shares of TRW Steering &
Suspension Co. Ltd., TRW Vehicle Safety Systems and TRW Automotive JV LLC for $280,000,000 in cash
and the Stock Consideration, (h) the U.S. Borrower purchased from a subsidiary of Northrop Space
and Mission all the issued and outstanding Equity Interests of TRW Auto Holdings Inc. and TRW
Automotive U.S. LLC for









 



3



$1,126,000,000 in cash (the steps described in clauses (c)-(h) of this paragraph together, the
"Stock Purchases”). Following the consummation of the Stock Purchases, (i) the U.S. Borrower
contributed to LucasVarity 1% of the Equity Interests of Finco acquired by the U.S. Borrower as
described in clause (a) above and (j) the U.S. Borrower contributed to Newco UK all the LucasVarity
shares purchased by U.S. Borrower (as described in clause (g) above) in exchange for 18.6% of the
issued and outstanding shares of Newco UK.



          The Borrowers borrowed (a) tranche A term loans on the Closing Date, in an aggregate principal
amount not in excess of $410,000,000, (b) tranche B-1 term loans on the Closing Date, in an
aggregate principal amount not in excess of $1,030,000,000, and (c) tranche B-2 term loans on the
Closing Date in an aggregate principal amount in Euros not in excess of €64,814,815.



          The proceeds of such term loans were used by the U.S. Borrower and the Subsidiaries on the
Closing Date, together with (a) the Equity Contributions, (b) up to $12,000,000 in proceeds of U.S.
Revolving Facility Loans, (c) the proceeds of the offering and sale of the Senior Notes and the
Senior Subordinated Notes and (d) the proceeds of the initial sale on the Closing Date of accounts
receivable and related assets under the Permitted Receivables Financing, solely (v) to make the
Management Equity Loan, (w) to make the Finco Loan, (x) to make the Foreign Acquiror Loans and the
Newco UK Loan, (y) to make the Stock Purchases and (z) to pay the Transaction Costs.



          On July 22, 2003, Holdings, Intermediate Holdings, the U.S. Borrower, the Administrative Agent
and certain Lenders entered into an Amendment and Restatement Agreement (the “First Amendment and
Restatement Agreement”) pursuant to which the Original Credit Agreement was amended and restated in
its entirety (as so amended and restated, the “First Amended and Restated Credit Agreement”).



          On January 9, 2004, Holdings, Intermediate Holdings, the U.S. Borrower, the Administrative
Agent and certain Lenders entered into an Amendment and Restatement Agreement (the “Second
Amendment and Restatement Agreement”) pursuant to which the First Amended and Restated Credit
Agreement was amended and restated in its entirety (as so amended and restated, the “Second Amended
and Restated Credit Agreement”).



          On February 6, 2004, Holdings completed an initial public offering of 24,137,931 shares of its
common stock (the “IPO”) and used the proceeds therefrom to (a) repurchase 12,068,965 shares of its
common stock from AILLC (the “IPO Repurchase Transaction”) and (b) repay a portion of its Senior
Notes and Senior Subordinated Notes (both as defined below) as follows: (i) approximately
$117,000,000 of such proceeds to repay 35% of its $300,000,000 aggregate principal amount of 11%
Senior Subordinated Notes, (ii) approximately $61,000,000 of such proceeds to repay 35% of its
€125,000,000 aggregate principal amount of 11.75% Senior Subordinated Notes, (iii) approximately
$109,000,000 of such proceeds to repay approximately 11% of its $925,000,000 aggregate principal
amount of 9.375% Senior Notes and (iv)









 



4



approximately $30,000,000 of such proceeds to repay approximately 11% of its €200,000,000
aggregate principal amount of 10.125% Senior Notes.



          On November 2, 2004, Holdings, Intermediate Holdings, the U.S. Borrower, the Administrative
Agent and certain Lenders entered into an Amendment and Restatement Agreement (the “Third Amendment
and Restatement Agreement”) pursuant to which the Second Amended and Restated Credit Agreement was
amended and restated in its entirety (as so amended and restated, the “Third Amended and Restated
Credit Agreement”).



          The Third Amended and Restated Credit Agreement provided for the Tranche E Facility, the
proceeds of which (together with cash on hand) were utilized to make the Intermediate Holdings
Loan. On November 12, 2004, Intermediate Holdings utilized the proceeds of the Intermediate
Holdings Loan to repurchase the entire outstanding principal amount of the Seller Note.



          On December 17, 2004, Holdings, Intermediate Holdings, the U.S. Borrower, the Administrative
Agent and certain Lenders entered into an Amendment and Restatement Agreement (the “Fourth
Amendment and Restatement Agreement”) pursuant to which the Third Amended and Restated Credit
Agreement was amended and restated in its entirety (so amended and restated, and as further
amended, supplemented or otherwise modified prior to the date hereof, the “Existing Credit
Agreement”).



          On November 18, 2005, the U.S. Borrower, the Administrative Agent and certain Lenders entered
into an Incremental Facility Amendment (the “Tranche B-2 Facility Amendment”) providing for the
making of the Tranche B-2 Term Loans (as defined below) in an aggregate principal amount of
$300,000,000 and certain amendments to the Existing Credit Agreement in order to give effect
thereto.



          On March 26, 2007, the U.S. Borrower issued and sold in offerings pursuant to Rule 144A under
the Securities Act and Regulation S under the Securities Act (a) New Senior Notes having an
aggregate principal amount of $500,000,000, (b) New Senior Notes having an aggregate principal
amount of €275,000,000 and (c) New Senior Notes having an aggregate principal amount of
$600,000,000.



          On April 19, 2007, the U.S. Borrower repurchased a total of $825,218,850 of the aggregate
principal amount of its 9-3/8% Senior Notes, €121,123,000 of the aggregate principal amount of its
10-1/8% Senior Notes, $192,909,000 of the aggregate principal amount of its 11% Senior Subordinated
Notes and €79,028,000 of the aggregate principal amount of its 11-3/4% Senior Subordinated Notes.



          Holdings, Intermediate Holdings, the U.S. Borrower and the Required Restatement Lenders desire
to further amend and restate the Existing Credit Agreement as more fully described herein. Subject
to the satisfaction of the conditions set forth herein, the Existing Credit Agreement shall be
amended and restated as provided herein.









 



5


ARTICLE I




Definitions




          SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have the
meanings specified below:



          “ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.



          “ABR Loan” shall mean any ABR Term Loan, ABR Revolving Loan or Swingline Dollar Loan.



          “ABR Revolving Borrowing” shall mean a Borrowing comprised of ABR Revolving Loans.



          “ABR Revolving Loan” shall mean any Revolving Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of Article II.



          “ABR Term Loan” shall mean any Term Loan bearing interest at a rate determined by reference to
the Alternate Base Rate in accordance with the provisions of Article II.



          “Accepting Lenders” shall have the meaning provided in Section 2.10(h).



          “Acquired Foreign Subsidiaries” shall mean the Subsidiaries specified on Schedule 1.01(a).



          “Additional Mortgage” shall have the meaning provided in Section 5.10(c).



          “Adjusted LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
the product of (a) the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves
applicable to such Eurocurrency Borrowing, if any.



          “Administrative Agent” shall have the meaning assigned to such term in the introductory
paragraph of this Agreement.



          “Administrative Agent Fees” shall have the meaning assigned to such term in Section 2.12(c).



          “Administrative Questionnaire” shall mean an Administrative Questionnaire in the form of
Exhibit B.



          “Affiliate” shall mean, when used 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.









 



6


          “Agents” shall mean the Administrative Agent and the Collateral Agent.



          “Aggregate Revolving Credit Exposure” shall mean the aggregate amount of the Lenders’
Revolving Credit Exposures and the Ancillary Facility Exposures.



          “Agreement” shall have the meaning assigned to such term in the introductory paragraph of this
Agreement.



          “Agreement Currency” shall have the meaning assigned to such term in Section 9.17(b).



          “AILLC” shall have the meaning assigned to such term in the preamble to this Agreement.



          “Alternate Base Rate” shall mean, 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%. If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate, including the failure of the Federal Reserve Bank of New York to publish
rates or the inability of the Administrative Agent to obtain quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined without regard to clause (b) of the
preceding sentence until the circumstances giving rise to such inability no longer exist. Any
change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective
Rate shall be effective on the effective date of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.



          “Ancillary Commitment” shall mean, with respect to any Ancillary Lender, the maximum amount
that such Ancillary Lender has agreed to make available from time to time during the Availability
Period under Ancillary Facilities created pursuant to Section 2.22 by such Ancillary Lender;
provided that at no time shall (a) the sum of (i) the Ancillary Commitment of such Ancillary Lender
and (ii) the Available Unused Commitment of such Ancillary Lender exceed (b) the Global Revolving
Facility Commitment of such Ancillary Lender.



          “Ancillary Commitment Limit” shall mean $200,000,000; provided that the Ancillary Commitments
with respect to the Ancillary Facilities in the jurisdictions set forth on Schedule 1.01(f) shall
be limited to the amounts set forth opposite such jurisdictions on such Schedule.



          “Ancillary Credit Extensions” shall mean Funded Ancillary Credit Extensions and Unfunded
Ancillary Credit Extensions.



          “Ancillary Facility” shall mean any facility or financial accommodation (including any
revolving, overdraft, foreign exchange, guarantee, letter of credit, bonding, credit card or
automated payments facility) made available to a Foreign Subsidiary Borrower by a Global Revolving
Facility Lender pursuant to Section 2.22.









 



7


          “Ancillary Facility Document” shall mean, with respect to any Ancillary Facility, the
agreements between the applicable Foreign Subsidiary Borrower and the Ancillary Lender thereunder
providing for such Ancillary Facility.



          “Ancillary Facility Exposure” shall mean, at any time with respect to an Ancillary Facility
made available by an Ancillary Lender, the sum of the Dollar Equivalents at such time of each of
the following amounts (as calculated by such Ancillary Lender using the relevant Exchange Rate at
such time):




     (a) the aggregate principal amount under any overdraft, check drawing or other
account facilities, determined on the same basis as that for determining any limit on such
facilities imposed by the terms of such Ancillary Facility;




     (b) the maximum potential liability (excluding amounts representing interest, fees
and similar amounts) under all letters of credit, guarantees and bonds then outstanding
under such Ancillary Facility;




     (c) the aggregate principal amount of loans outstanding thereunder; and




     (d) in the case of any other facility or financial accommodation, such other amount
as fairly represents the aggregate exposure of such Ancillary Lender under such facility or
financial accommodation, as reasonably determined by such Ancillary Lender from time to
time in accordance with its usual banking practice for facilities or accommodations of such
type.



          “Ancillary Facility Repayment Amount” shall have the meaning assigned to such term in Section
2.22(e)(ii).



          “Ancillary Facility Termination Date” shall have the meaning assigned to such term in Section
2.22(e)(i).



          “Ancillary Lender” shall mean, with respect to an Ancillary Facility, the Global Revolving
Facility Lender that has made such Ancillary Facility available pursuant to Section 2.22.



          “Ancillary Replacement Borrowing” shall mean a Global Revolving Facility Borrowing made by an
Eligible Borrower upon the termination of an Ancillary Facility pursuant to clause (ii) of the
first sentence of Section 2.22(e).



          “Applicable Agent” shall mean (a) with respect to a Loan or Borrowing denominated in Dollars
or with respect to any payment that does not relate to any Loan or Borrowing, the Administrative
Agent and (b) with respect to a Loan or Borrowing denominated in a Foreign Currency, a Swingline
Foreign Currency Borrowing or Swingline Foreign Currency Loan, the Administrative Agent or an
Affiliate thereof designated pursuant to Section 8.07.



          “Applicable Creditor” shall have the meaning assigned to such term in Section 9.17(b).









 



8


          “Applicable Margin” shall mean, for any day, (a) with respect to any Loan that is a Tranche
A-1 Term Loan or a Revolving Loan, or with respect to the Commitment Fees payable hereunder after
the Effective Funding Time, as the case may be, the applicable margin per annum set forth below
under the caption “Revolving Loan and Tranche A-1 Term Loan ABR Spread”, “Revolving Loan and
Tranche A-1 Term Loan Eurocurrency Spread” or “Commitment Fee Rate”, as applicable, based upon the
Leverage Ratio, and (b) with respect to any Tranche B-1 Term Loan that is (i) an ABR Loan, 0.500%
and (ii) a Eurocurrency Loan, 1.500%.



Applicable Margins for Revolving Loans,

Tranche A-1 Term Loans and Commitment Fee Rates




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Revolving Loan	 	 
	 	 	Revolving Loan and	 	and Tranche A-1 Term Loan	 	 
	 	 	Tranche A-1 Term Loan	 	Eurocurrency	 	Commitment Fee
	Leverage Ratio:	 	ABR Spread	 	Spread	 	Rate
	Category 1

Leverage Ratio
greater than or
equal to
2.50 to 1.00

	 	 	0.250	%	 	 	1.250	%	 	 	0.250	%
	Category 2

Leverage Ratio less
than 2.50 to 1.00
but greater than or
equal to
1.75 to 1.00

	 	 	0.125	%	 	 	1.125	%	 	 	0.250	%
	Category 3

Leverage Ratio less
than 1.75 to 1.00
but greater than or
equal to
1.50 to 1.00

	 	 	0.000	%	 	 	1.000	%	 	 	0.200	%
	Category 4

Leverage Ratio less
than 1.50 to 1.00

	 	 	0.000	%	 	 	0.875	%	 	 	0.200	%






          For purposes of the foregoing, (a) the Leverage Ratio shall be determined as of the end
of each fiscal quarter of the U.S. Borrower’s fiscal year and (b) each change in the Applicable
Margin resulting from a change in the Leverage Ratio shall be effective during the period
commencing on and including the first Business Day after the date of delivery to the Administrative
Agent of the consolidated financial information for the related period required to be delivered
pursuant to Section 5.04(a) or (b) and ending on the date immediately preceding the effective date
of the next such change; provided that the Leverage Ratio shall be deemed to be in Category 1 (i)
at any time that an Event of Default has occurred and is continuing or (ii) at the option of the
Administrative Agent or at the request of the Required Lenders, if the U.S. Borrower fails to
deliver the consolidated financial information required to be delivered pursuant to Section 5.04(a)
or (b), during the period from the expiration of the time for delivery thereof until such
consolidated financial information is delivered; and provided, further, that until the delivery
pursuant to Section 5.04(b) of the financial statements of the U.S. Borrower and the Subsidiaries
for the fiscal quarter ended June 29, 2007, for purposes of determining the Applicable Margin with
respect to any Tranche A-1 Term Loan or Revolving Loan or









 



9



the Commitment Fee payable hereunder after the Effective Funding Time the Leverage Ratio shall
be deemed to be in Category 2.



          “Applicant Party” shall mean, with respect to a Letter of Credit, (i) the Borrower that
requested such Letter of Credit and (ii) in the case of Letters of Credit with respect to which the
U.S. Borrower and a Subsidiary are co-applicants, collectively, the U.S. Borrower and such
Subsidiary.



          “Approved Fund” shall have the meaning assigned to such term in Section 9.04(b).



          “Asset Disposition” shall mean any sale, transfer or other disposition by Holdings, the U.S.
Borrower or any of the Subsidiaries to any person other than a Borrower or any Subsidiary Loan
Party of any asset or group of related assets in one or a series of related transactions, the Net
Proceeds from which exceed $50,000,000.



          “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender
and an assignee, and accepted by the Administrative Agent and the U.S. Borrower, in the form of
Exhibit A or such other form as shall be approved by the Administrative Agent.



          “Automotive (LV) Corp.” shall mean Automotive (LV) Corp., a Delaware corporation.



          “Availability Period” shall mean the period from and including the Closing Date to but
excluding the earlier of the Revolving Credit Maturity Date and (a) in the case of each of Global
Revolving Facility Loans, Global Revolving Facility Borrowings, Swingline Foreign Currency Loans
and Swingline Foreign Currency Borrowings, the date of termination of the Global Revolving Facility
Commitments and (b) in the case of each of U.S. Revolving Facility Loans, U.S. Revolving Facility
Borrowings, Swingline Dollar Loans, Swingline Dollar Borrowings and Letters of Credit, the date of
termination of the U.S. Revolving Facility Commitments.



          “Available Intercompany Investment Amount” shall mean, at any time with respect to any
investment, loan or Guarantee, (a) 10% of Consolidated Total Assets as of the end of the fiscal
quarter immediately prior to the date of such investment, loan or Guarantee for which financial
statements have been delivered pursuant to Section 5.04, minus (b) the sum of (x) the aggregate
amount of investments made prior to such time by the Borrowers and the Subsidiary Loan Parties in
Subsidiaries that are not Loan Parties pursuant to Section 6.04(a) (valued at the time of the
making thereof without giving effect to any write-downs or write-offs thereof), (y) the aggregate
amount of intercompany loans made prior to such time by the Borrowers and the Subsidiary Loan
Parties in Subsidiaries that are not Loan Parties pursuant to Section 6.04(d) and (z) the aggregate
amount of Guarantees provided prior to such time by the Borrowers and the Subsidiary Loan Parties
in respect of obligations of Subsidiaries that are not Loan Parties pursuant to Section 6.04(l),
plus (c) the sum of (x) the aggregate amount of returns of capital received by the Borrowers and
the Subsidiary Loan Parties in cash prior to such time in respect of investments made by them in
Subsidiaries that are not Loan Parties









 



10



pursuant to Section 6.04(a) or Section 6.04(h), (y) the aggregate principal amount of
intercompany loans made by the Borrowers and the Subsidiary Loan Parties in Subsidiaries that are
not Loan Parties pursuant to Section 6.04(d) or Section 6.04(h) that have been repaid in cash or
with assets prior to such time by Subsidiaries that are not Loan Parties to the Borrowers and the
Subsidiary Loan Parties, provided that, with respect to the repayment of intercompany loans with
assets pursuant to this clause (y), the aggregate principal amount of intercompany loans repaid for
purposes of this clause (y) shall not exceed the fair market value of the assets of Subsidiaries
that are not Loan Parties received by the Borrowers and the Subsidiary Loan Parties in respect of
such repayments (as shall be specified in a certificate delivered by the chief financial officer of
the U.S. Borrower to the Administrative Agent at the time of such repayment), and (z) the aggregate
reduction prior to such time of Indebtedness of Subsidiaries that are not Loan Parties that had
been Guaranteed by the Borrowers and the Subsidiary Loan Parties pursuant to Section 6.04(l) or
Section 6.04(h) (other than any such reduction in Indebtedness funded by the Borrowers and the
Subsidiary Loan Parties).



          “Available Unused Commitment” shall mean, with respect to any Global Revolving Facility Lender
at any time, an amount equal to the amount by which (a) the Global Revolving Facility Commitment of
such Global Revolving Facility Lender at such time exceeds (b) the sum of (x) the Global Revolving
Facility Credit Exposure of such Global Revolving Facility Lender at such time and (y) the
Ancillary Commitment (if any) of such Global Revolving Facility Lender at such time. For purposes
of calculating any Global Revolving Facility Lender’s Available Unused Commitment in connection
with an Ancillary Replacement Borrowing, the amount of the Ancillary Commitment of such Global
Revolving Facility Lender shall be reduced by the amount of the Ancillary Commitment being
terminated.



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



          “Board of Directors” means, as to any person, the board of directors of such person (or, if
such person is a partnership, the board of directors or other governing body of the general partner
of such person) or any duly authorized committee thereof.



          “Borrowers” shall mean the U.S. Borrower and the Foreign Subsidiary Borrowers.



          “Borrowing” shall mean a group of Loans of a single Type under a single Facility and made on a
single date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in
effect.



          “Borrowing Minimum” shall mean (a) in the case of an ABR Revolving Borrowing, $5,000,000, (b)
in the case of a Eurocurrency Revolving Borrowing denominated in Dollars, $5,000,000, (c) in the
case of a Global Revolving Facility Borrowing denominated in a Foreign Currency, the smallest
amount of such Foreign Currency that is a multiple of 1,000,000 units of such Foreign Currency and
has a Dollar Equivalent in excess of $5,000,000, (d) in the case of a Swingline Dollar Borrowing,
$500,000 and (e) in the case of a Swingline Foreign Currency Borrowing, the smallest









 



11



amount of such Foreign Currency that is a multiple of 500,000 units of such Foreign Currency
and has a Dollar Equivalent in excess of $1,000,000.



          “Borrowing Multiple” shall mean (a) in the case of a Revolving Borrowing denominated in
Dollars, $1,000,000, (b) in the case of a Swingline Dollar Borrowing, $500,000 and (c) in the case
of a Global Revolving Facility Borrowing denominated in a Foreign Currency or a Swingline Foreign
Currency Borrowing, 100,000 units of such Foreign Currency.



          “Borrowing Request” shall mean a request by a Borrower in accordance with the terms of Section
2.03 and substantially in the form of Exhibit C-1.



          “Business Day” shall mean 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
(a) 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 deposits in the applicable currency in the
London interbank market and (b) when used in connection with a Loan denominated in Euros, 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.



          “Calculation Date” shall mean (a) the last Business Day of each calendar month, (b) each date
(with such date to be reasonably determined by the Administrative Agent) that is on or about the
date of (i) a Borrowing Request or an Interest Election Request with respect to any Global
Revolving Facility Loan denominated in a Foreign Currency, (ii) the issuance, amendment, renewal or
extension of a Foreign Currency Letter of Credit or (iii) a request for a Swingline Foreign
Currency Borrowing and (c) if an Event of Default has occurred and is continuing, any Business Day
as determined by the Administrative Agent in its sole discretion.



          “CAM” shall mean the mechanism for the allocation and exchange of interests in the Loans and
extensions of credit under Ancillary Facilities, participations in Letters of Credit and
collections thereunder established under Article XI.



          “CAM Exchange” shall mean the exchange of the Lenders’ interests provided for in Section
11.01.



          “CAM Exchange Date” shall mean the first date after the Closing Date on which there shall
occur (a) any event described in paragraph (h) or (i) of Section 7.01 with respect to any Borrower
or (b) an acceleration of Loans pursuant to Section 7.01.



          “CAM Percentage” shall mean, as to each Lender, a fraction, expressed as a decimal, of which
(a) the numerator shall be the sum of (i) the Dollar Equivalent, determined using the Exchange
Rates calculated as of the CAM Exchange Date, of the aggregate Obligations in respect of Loans
(other than Swingline Loans) owed to such Lender, (ii) the Revolving L/C Exposure, if any, of such
Lender, (iii) the Swingline Exposure, if any, of such Lender, and (iv) the Ancillary Facility
Exposure, if any, of such Lender, in each case immediately prior to the CAM Exchange Date, and (b)
the









 



12



denominator shall be the sum of (i) the Dollar Equivalent, determined using the Exchange Rates
calculated as of the CAM Exchange Date, of the aggregate Obligations in respect of Loans (other
than Swingline Loans) owed to all the Lenders, (ii) the aggregate Revolving L/C Exposure of all the
Lenders, (iii) the Swingline Exposures of all Lenders and (iv) the Ancillary Facility Exposures of
all Lenders, in each case immediately prior to the CAM Exchange Date; provided that, for purposes
of clause (a) above, the Obligations owed to a Swingline Lender will be deemed not to include any
Swingline Loans except to the extent provided in clause (a)(iii) above.



          “Capital Expenditures” shall mean, for any person in respect of any period, the aggregate of
all expenditures incurred by such person during such period that, in accordance with GAAP, are or
should be included in “additions to property, plant or equipment” or similar items reflected in the
statement of cash flows of such person, provided, however, that Capital Expenditures for the U.S.
Borrower and the Subsidiaries shall not include (a) expenditures to the extent they are made with
the proceeds of the issuance of Equity Interests of Holdings after the Closing Date or with funds
that would have constituted Net Proceeds under clause (a) of the definition of the term “Net
Proceeds” (but that will not constitute Net Proceeds as a result of the first proviso to such
clause (a)), (b) expenditures of proceeds of insurance settlements, condemnation awards and other
settlements in respect of lost, destroyed, damaged or condemned assets, equipment or other property
to the extent such expenditures are made to replace or repair such lost, destroyed, damaged or
condemned assets, equipment or other property or otherwise to acquire, maintain, develop,
construct, improve, upgrade or repair assets or properties useful in the business of the U.S.
Borrower and the Subsidiaries within 12 months of receipt of such proceeds, (c) interest
capitalized during such period, (d) expenditures that are accounted for as capital expenditures of
such person and that actually are paid for by a third party (excluding Holdings or any subsidiary
thereof) and for which neither Holdings nor any subsidiary thereof has provided or is required to
provide or incur, directly or indirectly, any consideration or obligation to such third party or
any other person (whether before, during or after such period), (e) the book value of any asset
owned by such person prior to or during such period to the extent that such book value is included
as a capital expenditure during such period as a result of such person reusing or beginning to
reuse such asset during such period without a corresponding expenditure actually having been made
in such period, provided that (i) any expenditure necessary in order to permit such asset to be
reused shall be included as a Capital Expenditure during the period that such expenditure actually
is made and (ii) such book value shall have been included in Capital Expenditures when such asset
was originally acquired, (f) the purchase price of equipment purchased during such period to the
extent the consideration therefor consists of any combination of (i) used or surplus equipment
traded in at the time of such purchase and (ii) the proceeds of a concurrent sale of used or
surplus equipment, in each case, in the ordinary course of business and (g) investments in respect
of a Permitted Business Acquisition.



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









 



13



sheet of such person under GAAP and, for purposes hereof, the amount of such obligations at
any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.



          “cash equivalents” shall mean Permitted Investments having a term of not more than three
months.



          “Cash Interest Expense” shall mean, with respect to the U.S. Borrower and the Subsidiaries on
a consolidated basis for any period, the sum of Interest Expense of the U.S. Borrower and the
Subsidiaries for such period less the sum of (a) pay-in-kind Interest Expense, (b) to the extent
included in Interest Expense (and without duplication), the amortization of any financing fees paid
by, or on behalf of, the U.S. Borrower or any of the Subsidiaries, including such fees paid in
connection with the Restatement Transactions (including any such fees paid by Holdings from the
proceeds of distributions from the U.S. Borrower) and (c) the amortization of debt discounts, if
any, or fees in respect of Swap Agreements.



          A “Change in Control” shall be deemed to occur if:




     (a) at any time, (i) Holdings shall fail to own directly, beneficially and of record,
100% of the issued and outstanding Equity Interests of Intermediate Holdings (or the
surviving entity in any merger of Intermediate Holdings and the U.S. Borrower pursuant to
Section 6.05(b)), unless and until such time as Intermediate Holdings (or such surviving
entity) is merged with Holdings pursuant to Section 6.05(b), (ii) Intermediate Holdings (or
the surviving entity in any merger of Intermediate Holdings and Holdings pursuant to
Section 6.05(b)) shall fail to own directly, beneficially and of record, 100% of the issued
and outstanding Equity Interests of the U.S. Borrower, unless and until such time as
Intermediate Holdings (or such surviving entity) is merged with the U.S. Borrower pursuant
to Section 6.05(b), (iii) a majority of the seats (other than vacant seats) on the Board of
Directors of Holdings shall at any time be occupied by persons who were neither (A)
nominated by the Board of Directors of Holdings or a Permitted Holder nor (B) appointed by
directors so nominated or (iv) a “Change in Control” shall occur under the New Senior Note
Indentures;




     (b) any person or group (within the meaning of Rule 13d-5 of the Securities Exchange
Act of 1934 as in effect on the Closing Date), other than the Permitted Holders or any
combination of the Permitted Holders, shall own beneficially, directly or indirectly, in
the aggregate Equity Interests representing at least 50% of the aggregate ordinary voting
power represented by the issued and outstanding Equity Interests of Holdings and the
Permitted Holders own beneficially, directly or indirectly, a smaller percentage of such
ordinary voting power at such time than the Equity Interests owned by such other person or
group.



          “Change in Law” shall mean (a) the adoption of any law, rule or regulation after the Closing
Date, (b) any change in law, rule or regulation or in the interpretation or application thereof by
any Governmental Authority after the Closing Date or (c) compliance by any Lender or Issuing Bank
(or, for purposes of









 



14



Section 2.15(b), by any lending office of such Lender or by such Lender’s or 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 Closing Date.



          “Charges” shall have the meaning assigned to such term in Section 9.09.



          “Closing Date” shall mean February 28, 2003.



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



          “Collateral” shall mean all the “Collateral” as defined in any Security Document and shall
also include the Mortgaged Properties.



          “Collateral Agent” shall have the meaning given such term in the introductory paragraph of
this Agreement.



          “Collateral and Guarantee Requirement” shall mean the requirement that:




     (a) the Collateral Agent shall have received (i) from Holdings, Intermediate
Holdings, the U.S. Borrower and each Domestic Subsidiary Loan Party, a counterpart of the
U.S. Collateral Agreement duly executed and delivered on behalf of such person, (ii) from
each Subsidiary listed on Schedule 1.01(d), a counterpart of a Foreign Pledge Agreement
with respect to the amount of the Equity Interests of each Foreign Subsidiary listed
opposite such Subsidiary on such Schedule, duly executed and delivered on behalf of such
party, (iii) except as set forth on Schedule 1.01(g), from each Foreign Subsidiary Loan
Party a counterpart of a Foreign Security Agreement and a Foreign Mortgage, duly executed
and delivered on behalf of such Foreign Subsidiary, (iv) except as set forth on Schedule
1.01(g), from each Foreign Subsidiary Loan Party a counterpart of the Foreign Guarantee,
duly executed and delivered on behalf of each such person, (v) from Finco, a counterpart of
the Finco Guarantee and Foreign Pledge Agreements, with respect to its interest in certain
of the Foreign Acquiror Notes, in each case, duly executed and delivered on behalf of Finco
and (vi) from the U.S. Borrower and each Domestic Subsidiary Loan Party thereto a
counterpart of the First-Tier Subsidiary Pledge Agreement, duly executed and delivered on
behalf of each such person;




     (b) in the case of any person that becomes a Domestic Subsidiary Loan Party after the
Closing Date, the Collateral Agent shall have received from such subsidiary (i) a
supplement to the U.S. Collateral Agreement, in the form specified therein, duly executed
and delivered on behalf of such Domestic Subsidiary Loan Party, (ii) if such Subsidiary
owns Equity Interests of a Foreign Subsidiary that, as a result the law of the jurisdiction
or organization of such Foreign Subsidiary, cannot be pledged to the Collateral Agent under
the U.S. Collateral Agreement, a counterpart of a Foreign Pledge Agreement with respect to
such Equity Interests (provided that in no event shall more than 65% of the









 



15



issued and outstanding voting Equity Interests of any Foreign Subsidiary, other than
Finco, be pledged to secure Obligations of the U.S. Borrower), duly executed and delivered
on behalf of such Subsidiary and (iii) a supplement to the First-Tier Subsidiary Pledge
Agreement or a Foreign Pledge Agreement, as applicable, with respect to the portion that is
not being pledged pursuant to clause (ii) above of the Equity Interests of a Foreign
Subsidiary owned by it, duly executed and delivered on behalf of such Subsidiary;




     (c) in the case of any person that becomes a Foreign Subsidiary Loan Party after the
Closing Date, the Collateral Agent shall have received (i) from such person (x) subject to
clause (iii) of Section 5.10(f), a counterpart of a Foreign Security Agreement and (if
applicable) a Foreign Mortgage, duly executed and delivered on behalf of such person and
(y) a supplement to the Foreign Guarantee, in the form specified therein, duly executed and
delivered on behalf of such person and (ii) from the parent of such Foreign Subsidiary, a
counterpart of a Foreign Pledge Agreement duly executed and delivered on behalf of such
parent;




     (d) all the issued and outstanding Equity Interests (i) of (A) Intermediate Holdings
(or the surviving entity of any merger of Intermediate Holdings and the U.S. Borrower
pursuant to Section 6.05(b)), until such time as Intermediate Holdings (or such surviving
entity) is merged with Holdings (or the surviving entity of any merger of Intermediate
Holdings and Holdings) pursuant to Section 6.05(b), (B) the U.S. Borrower, until such time
as the U.S. Borrower is merged with Intermediate Holdings pursuant to Section 6.05(b), (C)
each Domestic Subsidiary Loan Party, (D) each Foreign Subsidiary Loan Party, (E) each
Wholly Owned Subsidiary directly owned by or on behalf of (1) the U.S. Borrower, (2) a
Subsidiary listed on Schedule 1.01(e), (3) any Domestic Subsidiary Loan Party or (4)
subject to clause (iii) of Section 5.10(f), any person that becomes a Foreign Subsidiary
Loan Party after the Closing Date, (ii) of any other person owned on the Closing Date
directly by or on behalf by any Loan Party, subject to Section 5.10(h) and except to the
extent that a pledge of such Equity Interests would violate applicable law or a contractual
obligation binding upon such Equity Interests as of the Closing Date and for so long as
such restriction exists and (iii) subject to Section 5.10(h), that are acquired by a Loan
Party after the Closing Date, shall have been pledged pursuant to the U.S. Collateral
Agreement or a Foreign Pledge Agreement, as applicable (provided that in no event shall
more than 65% of the issued and outstanding voting Equity Interests of any Foreign
Subsidiary, other than Finco, be pledged to secure Obligations of the U.S. Borrower), and
the Collateral Agent shall have received all certificates or other instruments (if any)
representing such Equity Interests, together with stock powers or other instruments of
transfer with respect thereto endorsed in blank;




     (e) all Indebtedness of Holdings, Intermediate Holdings, the U.S. Borrower and each
Subsidiary having an aggregate principal amount that has a Dollar Equivalent in excess of
$10,000,000 (other than intercompany current liabilities incurred in the ordinary course of
business in connection with the cash









 



16



management operations of the U.S. Borrower and the Subsidiaries) that is owing to any
Loan Party shall be evidenced by a promissory note or an instrument and shall have been
pledged pursuant to the U.S. Collateral Agreement or a Foreign Pledge Agreement, as
applicable, and the Collateral Agent shall have received all such promissory notes or
instruments, together with note powers or other instruments of transfer with respect
thereto endorsed in blank;




     (f) all documents and instruments, including Uniform Commercial Code financing
statements, required by law or reasonably requested by the Collateral Agent to be filed,
registered or recorded to create the Liens intended to be created by the Security Documents
(in each case, including any supplements thereto) and perfect such Liens to the extent
required by, and with the priority required by, the Security Documents, shall have been
filed, registered or recorded or delivered to the Collateral Agent for filing, registration
or the recording concurrently with, or promptly following, the execution and delivery of
each such Security Document;




     (g) the Collateral Agent shall have received (i) counterparts of each Mortgage to be
entered into on the Closing Date with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property, (ii) a policy or policies of
title insurance, paid for by the U.S. Borrower, issued by a nationally recognized title
insurance company insuring the Lien of each U.S. Mortgage specified on Schedule 3.18 as a
valid first Lien on the Mortgaged Property described therein, free of any other Liens
except as permitted by Section 6.02 and Liens arising by operation of law, together with
such endorsements, coinsurance and reinsurance as the Collateral Agent may reasonably
request, and (iii) such legal opinions and other documents as the Collateral Agent may
reasonably request with respect to any such Mortgage or Mortgaged Property; and




     (h) each Loan Party shall have obtained (i) all consents and approvals required to be
obtained by it in connection with (A) the execution and delivery of all Security Documents
(or supplements thereto) to which it is a party and the granting by it of the Liens
thereunder, (B) in the case of each Domestic Subsidiary Loan Party, the performance of its
obligations thereunder and (C) in the case of each Foreign Subsidiary Loan Party, the
performance of its obligations under the Foreign Guarantee and (ii) in the case of a
Foreign Subsidiary Loan Party, all material consents and approvals required to be obtained
by it in connection with the performance by it of its obligations under the Security
Documents (other than the Foreign Guarantee).



          “Collateral Release Period” shall mean any period after the repayment of all outstanding
Tranche B-1 Term Loans and, if applicable, Incremental Extensions of Credit in the form of tranche
B facilities during which the U.S. Borrower has at least one Investment Grade Rating (determined
without regard to any form of credit enhancement), provided that each such Collateral Release
Period shall commence upon written notice by the U.S. Borrower to the Administrative Agent and
shall terminate, if requested by the Required Lenders, on the first date following the commencement
of such Collateral









 



17



Release Period on which the U.S. Borrower has no Investment Grade Ratings (determined without
regard to any form of credit enhancement).



          “Commitment Fee” shall have the meaning assigned to such term in Section 2.12(a).



          “Commitments” shall mean, (a) with respect to any Lender, such Lender’s Global Revolving
Facility Commitment, U.S. Revolving Facility Commitment, Tranche A-1 Term Loan Commitment and
Tranche B-1 Term Loan Commitment, or any commitment in respect of any Incremental Extension of
Credit, and (b) with respect to any Swingline Lender, its Swingline Dollar Commitment or Swingline
Foreign Currency Commitment, as applicable.



          “Consolidated Net Income” means, with respect to any person for any period, the aggregate of
the Net Income of such person and its subsidiaries for such period, on a consolidated basis;
provided, however, that (i) any net after-tax extraordinary gains or losses (less all fees and
expenses relating thereto) shall be excluded, (ii) any net after-tax gains or losses on disposal of
discontinued operations shall be excluded, (iii) any net after-tax gains or losses (less all fees
and expenses relating thereto) attributable to asset dispositions other than in the ordinary course
of business (as determined in good faith by the U.S. Borrower) shall be excluded, (iv) the Net
Income for such period of any person that is not a subsidiary of such person, or that is accounted
for by the equity method of accounting, shall be included only to the extent of the amount of
dividends or distributions or other payments paid in cash (or to the extent converted into cash) to
the referent person or a subsidiary thereof in respect of such period, (v) the Net Income for such
period of any subsidiary of such person shall be excluded to the extent that the declaration or
payment of dividends or similar distributions by such subsidiary of its Net Income is not at the
date of determination permitted without any prior governmental approval (which has not been
obtained) or, directly or indirectly, by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation
applicable to that subsidiary or its stockholders, unless such restriction with respect to the
payment of dividends or in similar distributions has been legally waived, (vi) in the case of the
U.S. Borrower, Consolidated Net Income for such period shall be decreased by the amount of all
payments made during such period pursuant to Sections 6.06(b) and used by Holdings or Intermediate
Holdings to make payments that reduce the Consolidated Net Income of Holdings or Intermediate
Holdings, as applicable, for such period, (vii) Consolidated Net Income for such period shall not
include the cumulative effect of a change in accounting principles during such period and (viii)
Consolidated Net Income for such period shall be (x) increased by the amount of the net after-tax
premium paid in respect of debt repurchases or redemptions during such period and (y) decreased by
any net after-tax gains in respect of debt repurchases or redemptions during such period.



          “Consolidated Total Assets” shall mean, as of any date, the total assets of the U.S. Borrower
and the consolidated Subsidiaries, determined in accordance with GAAP, as set forth on the
consolidated balance sheet of the U.S. Borrower as of such date.









 



18


          “Consolidated Total Debt” at any date shall mean the sum of (without duplication), (a) all
Indebtedness consisting of Capital Lease Obligations, Indebtedness for borrowed money and
Indebtedness in respect of the deferred purchase price of property or services of the U.S. Borrower
and the Subsidiaries determined on a consolidated basis on such date plus (b) the “Aggregate
Principal Balance” (as defined in the Receivables Loan Agreement) or any analogous term in any
replacement or amendment of the Receivables Loan Agreement plus, (c) without duplication, the
aggregate principal amount of any financing of, or Net Investment in, accounts receivable that
constitutes a Permitted Receivables Financing.



          “Consolidated Total Net Debt” at any time shall mean (a) Consolidated Total Debt minus (b)
Unrestricted Cash in excess of $100,000,000; provided that no more than $500,000,000 of
Unrestricted Cash may be deducted in calculating Consolidated Total Net Debt at any time.



          “Control” shall mean 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 ownership of voting
securities, by contract or otherwise, and “Controlling” and “Controlled” shall have meanings
correlative thereto.



          “Credit Event” shall have the meaning assigned to such term in Article IV.



          “Cumulative Net Income Amount” shall mean, at any time, an amount equal to (a) the product of
(i) Consolidated Net Income for the period (taken as one accounting period) commencing January 1,
2005 to the end of the most recently completed fiscal quarter for which financial statements are
delivered pursuant to Section 5.04 and (ii) 0.50, minus (b) the aggregate amount of such
Consolidated Net Income that has been utilized, or committed to be utilized, prior to such time to
purchase or redeem, or pay dividends or make other distributions in respect of, Equity Interests of
Holdings pursuant to Section 6.06(e)(ii), minus (c) the aggregate amount of such Consolidated Net
Income that has been utilized, or committed to be utilized, prior to such time to purchase, redeem,
retire or otherwise acquire New Senior Notes, Senior Notes, Senior Subordinated Notes or Permitted
Notes Refinancing Indebtedness pursuant to clause (E)(2) of Section 6.09(b)(i).



          “Cure Amount” shall have the meaning provided in Section 7.03.



          “Cure Right” shall have the meaning provided in Section 7.03.



          “Currency” shall mean Dollars, Euros and Sterling.



          “Current Assets” shall mean, with respect to the U.S. Borrower and the Subsidiaries on a
consolidated basis at any date of determination, the sum of (a) all assets (other than cash and
Permitted Investments or other cash equivalents) that would, in accordance with GAAP, be classified
on a consolidated balance sheet of the U.S. Borrower and the Subsidiaries as current assets at such
date of determination, other than amounts related to current or deferred Taxes based on income or
profits (including the Michigan Single Business Tax and similar Taxes) and (b) in the event that
the Permitted









 



19



Receivables Financing is accounted for off-balance sheet, (x) gross accounts receivable sold
by the U.S. Borrower or any Subsidiary pursuant to a Permitted Receivables Financing less (y)
collections against the amounts sold pursuant to clause (x).



          “Current Liabilities” shall mean, with respect to the U.S. Borrower and the Subsidiaries on a
consolidated basis at any date of determination, all liabilities that would, in accordance with
GAAP, be classified on a consolidated balance sheet of the U.S. Borrower and the Subsidiaries as
current liabilities at such date of determination, other than (a) the current portion of any debt
or Capital Lease Obligations, (b) accruals of Interest Expense (excluding Interest Expense that is
due and unpaid), (c) accruals for current or deferred Taxes based on income or profits (including
the Michigan Single Business Tax and similar Taxes), (d) accruals, if any, of transaction costs
resulting from the Transactions, (e) accruals of any costs or expenses related to (i) severance or
termination of employees prior to the Closing Date or (ii) bonuses, pension and other
post-retirement benefit obligations, (f) the current portion of the obligations of the U.S.
Borrower and the Subsidiaries under the Trust Agreement between Lucas and Fidelity Management Trust
dated as of October 1, 1995, with respect to the Varity Automotive Inc. Deferred Compensation Plan
and the Varity Automotive Inc. Deferred Compensation Trust Agreement dated as of November 1, 1997,
with respect to the Varity Automotive Supplemental Compensation and Deferred Compensation Plan and
(g) accruals for add-backs to EBITDA included in clauses (a)(v) through (a)(ix) of paragraph (B) of
the definition of such term.



          “Debt Service” shall mean, with respect to the U.S. Borrower and the Subsidiaries on a
consolidated basis for any period, Cash Interest Expense for such period plus scheduled principal
amortization of Consolidated Total Debt for such period (whether or not such payments are made).



          “Default” shall mean any event or condition that upon notice, lapse of time or both would
constitute an Event of Default.



          “Defaulting Lender” shall mean any Lender or Ancillary Lender with respect to which a Lender
Default is in effect.



          “Designated Non-Cash Consideration” shall mean all non-cash consideration received by the U.S.
Borrower or any Subsidiary in respect of any sale, transfer or other disposition of assets pursuant
to Section 6.05(h) that is designated as Designated Non-Cash Consideration pursuant to a
certificate of a Responsible Officer, which certificate shall set forth the fair market value of
such Designated Non-Cash Consideration and the basis of such valuation.



          “Dividend Payment Amount” shall mean (a) at any time during the fiscal year ending December
31, 2005, an amount equal to (i) $50,000,000, minus (ii) the aggregate amount of payments made
during such fiscal year and prior to such time pursuant to Section 6.06(e)(i) and (b) at any time
during each fiscal year thereafter, an amount equal to (i) $25,000,000, plus (ii) any portion of
the Dividend Payment Amount for prior fiscal years not utilized to make payments pursuant to
Section 6.06(e)(i) during









 



20



such prior fiscal years, minus (iii) the aggregate amount of payments made during the current
fiscal year and prior to such time pursuant to Section 6.06(e)(i).



          “Dollars” or “$” shall mean lawful money of the United States of America.



          “Dollar Equivalent” shall mean, on any date of determination (a) with respect to any amount in
Dollars, such amount, and (b) with respect to any amount in any Foreign Currency, the equivalent in
Dollars of such amount, determined by the Administrative Agent pursuant to Section 1.03(b) using
the Exchange Rate with respect to such Foreign Currency at the time in effect under the provisions
of such Section.



          “Dollar Letter of Credit” shall mean a Letter of Credit denominated in Dollars.



          “Domestic Subsidiary Loan Party” shall mean each Wholly Owned Subsidiary that is not (a) a
Foreign Subsidiary, (b) the Receivables Subsidiary, (c) the Transferor or (d) listed on Schedule
1.01(h).



          “EBITDA” shall mean, with respect to the U.S. Borrower and the Subsidiaries on a consolidated
basis for any period, the Consolidated Net Income of the U.S. Borrower and the Subsidiaries for
such period:




plus (a) the sum of (in each case without duplication and to the extent
the respective amounts described in subclauses (i) through (ix) of this
clause (a) reduced such Consolidated Net Income for the respective period
for which EBITDA is being determined) (i) provision for Taxes based on
income or profits of the U.S. Borrower and the Subsidiaries (including the
Michigan Single Business Tax and similar Taxes) for such period and
provision for Taxes based on income or profits of Holdings and
Intermediate Holdings during such period to the extent paid using the
proceeds of dividends made by the U.S. Borrower in accordance with Section
6.06(b), (ii) Interest Expense of the U.S. Borrower and the Subsidiaries
for such period, (iii) depreciation and amortization expense of the U.S.
Borrower and the Subsidiaries for such period, (iv) any fees, expenses or
charges related to any equity offering, any investment or acquisition
permitted hereunder or occurring prior to the Closing Date, any
recapitalization permitted hereunder or any Indebtedness permitted to be
incurred hereunder (whether or not successful) and fees, expenses, charges
or change of control payments related to the Transactions (including fees
to the Fund and Fund Affiliates) or the acquisition by Northrop Grumman
Corporation of TRW Inc., (v) the amount of any cash restructuring or other
nonrecurring charges incurred not in excess of (A) $30,000,000 in fiscal
year 2004 or (B) $50,000,000 in any fiscal year thereafter, (vi) any other
noncash charges, including increases in costs of sales resulting from
purchase accounting in









 



21



relation to the Transactions or any acquisition (but excluding any such
charge which requires an accrual of a cash reserve for anticipated cash
charges for any future period and any noncash expense relating to defined
benefits pension or post-retirement benefit plans), (vii) the amount of
any minority interest expense, (viii) noncash exchange, translation or
performance losses relating to any foreign currency hedging transactions
or currency fluctuations and (ix) the amount of management, consulting,
monitoring and advisory fees paid to the Fund and/or Fund Affiliates (or
any accruals related to such fees) during such period not to exceed
$7,500,000 during any four quarter period (provided that, for purposes of
subclauses (vi) and (viii) of this clause (a), any noncash charges or
losses shall be treated as cash charges or losses in any subsequent period
during which cash disbursements attributable thereto are made),




minus (b) the sum of (in each case without duplication and to the extent
the respective amounts described in subclauses (i) through (iii) of this
clause (b) increased such Consolidated Net Income for the respective
period for which EBITDA is being determined) (i) the amount of any
minority interest income, (ii) noncash exchange, translation or
performance gains relating to any foreign currency hedging transactions or
currency fluctuations and (iii) noncash items increasing Consolidated Net
Income of the U.S. Borrower and the Subsidiaries for such period (but
excluding any such items (A) in respect of which cash was received in a
prior period or will be received in a future period, (B) which represent
the reversal of any accrual of, or cash reserve for, anticipated cash
charges in any prior period or (C) which constitute noncash gains or
income relating to defined benefits pension or post-retirement benefit
plans).



          “Effective Funding Time” shall mean the time on the Restatement Effective Date at which all
Tranche A Term Loans, Tranche B Term Loans, Tranche B-2 Term Loans, Tranche E Term Loans, Existing
Swingline Loans and Existing Revolving Loans are repaid with the proceeds of Tranche A-1 Term
Loans, Tranche B-1 Term Loans and Revolving Loans, respectively, pursuant to Section 2.01.



          “Eligible Borrower” shall mean the U.S. Borrower or any Foreign Subsidiary Borrower that has
been designated under Section 2.20 to make Borrowings under the Global Revolving Facilities.



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









 



22



“environment” shall mean ambient air, surface water and groundwater (including potable water,
navigable water and wetlands), the land surface or subsurface strata, the workplace or as otherwise
defined in any Environmental Law.



          “Environmental Laws” shall mean all applicable laws (including common law), rules,
regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices 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, the management, release or
threatened release of, or exposure to, any Hazardous Material or to health and safety matters (to
the extent relating to the environment or Hazardous Materials).



          “Environmental Liability” shall mean any liability, contingent or otherwise (including any
liability for damages, costs of environmental investigation or remediation, fines, penalties or
indemnities), of Holdings, Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries
directly or indirectly resulting from or based upon (a) 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 Contributions” shall have the meaning assigned to such term in the preamble to this
Agreement.



          “Equity Interests” of any person shall mean any and all shares, interests, rights to purchase,
warrants, options, participation or other equivalents of or interests in (however designated)
equity of such person, including any preferred stock, any limited or general partnership interest
and any limited liability company membership interest.



          “Equity Offering” shall mean any public or private sale of common stock of Holdings, other
than public offerings with respect to the common stock of Holdings registered on Form S-8 under the
Securities Act (or any successor form thereto).



          “Equity Offering Net Proceeds” shall mean the cash proceeds from any Equity Offering, net of
all fees (including investment banking fees), discounts, commissions, costs and other expenses, in
each case incurred in connection with such Equity Offering. In connection with the calculation of
the Equity Offering Net Proceeds with respect to any Equity Offering, all fees, discounts,
commissions, costs and expenses shall be allocated among the shares sold in such Equity Offering on
a pro rata basis.



          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time.



          “ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that,
together with Holdings, Intermediate Holdings, the U.S. Borrower or a Subsidiary is treated as a
single employer under Section 414(b) or (c) of the Code, or,









 



23



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” shall mean (a) any Reportable Event; (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) and, on and after the effectiveness of Title I of the Pension Act, any failure by any Plan
to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section
302 of ERISA) applicable to such Plan, whether or not waived; (c) the filing pursuant to Section
412(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 Holdings, Intermediate Holdings, the U.S.
Borrower, a Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA with respect
to the termination of any Plan or Multiemployer Plan; (e) the receipt by Holdings, Intermediate
Holdings, the U.S. Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee
to administer any Plan under Section 4042 of ERISA; (f) the incurrence by Holdings, Intermediate
Holdings, the U.S. Borrower, a Subsidiary or any ERISA Affiliate of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (g) the receipt by
Holdings, Intermediate Holdings, the U.S. Borrower, a Subsidiary or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from Holdings, Intermediate Holdings, the U.S.
Borrower, a Subsidiary or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA (or, after the
effectiveness of Title II of the Pension Act, that it is in endangered or critical status, within
the meaning of Section 305 of ERISA); or (h) on and after the effectiveness of Title I of the
Pension Act, a determination that any Plan is, or is expected to be, in “at-risk” status (as
defined in Section 303(i)(4)(A) of ERISA or Section 430(i)(4)(A) of the Code).



          “Euro” or “€” shall mean the single currency of the European Union as constituted by the
treaty establishing the European Community being the Treaty of Rome, as amended from time to time
and as referred to in the EMU Legislation.



          “Euro Equivalent” shall mean, on any date of determination, (a) with respect to any amount in
Euros, such amount and (b) with respect to any amount in Dollars or any Foreign Currency other than
Euros, the equivalent in Euros of such amount or determined by the Administrative Agent pursuant to
Section 1.03(b) using the Exchange Rate with respect to such currency of the time in effect under
the provisions of such Section.



          “Eurocurrency Borrowing” shall mean a Borrowing comprised of Eurocurrency Loans.



          “Eurocurrency Loan” shall mean any Eurocurrency Term Loan or Eurocurrency Revolving Loan.









 



24


          “Eurocurrency Revolving Borrowing” shall mean a Borrowing comprised of Eurocurrency Revolving
Loans.



          “Eurocurrency Revolving Loan” shall mean any Revolving Loan bearing interest at a rate
determined by reference to the Adjusted LIBO Rate in accordance with the provisions of Article II.



          “Eurocurrency Term Loan” shall mean any Term Loan bearing interest at a rate determined by
reference to the Adjusted LIBO Rate in accordance with the provisions of Article II.



          “Event of Default” shall have the meaning given such term in Section 7.01.



          “Excess Cash Flow” shall mean, with respect to the U.S. Borrower and the Subsidiaries on a
consolidated basis for any Excess Cash Flow Period, EBITDA of the U.S. Borrower and the
Subsidiaries on a consolidated basis for such Excess Cash Flow Period,




     minus, without duplication, (a) Debt Service for such Excess Cash Flow Period, (b) (i)
any voluntary prepayments of Term Loans during such Excess Cash Flow Period, (ii) any
permanent voluntary reductions during such Excess Cash Flow Period of Revolving Credit
Commitments to the extent that an equal amount of Revolving Loans was simultaneously repaid
and (iii) any voluntary prepayment permitted hereunder of term Indebtedness during such
Excess Cash Flow Period to the extent not financed, or intended to be financed, using the
proceeds of the incurrence of Indebtedness, so long as the amount of such prepayment is not
already reflected in Debt Service, (c) (i) Capital Expenditures by the U.S. Borrower and
the Subsidiaries on a consolidated basis during such Excess Cash Flow Period (excluding
Capital Expenditures made in such Excess Cash Flow Period where a certificate in the form
contemplated by the following clause (d) was previously delivered) that are paid in cash
and (ii) the aggregate consideration paid in cash during such Excess Cash Flow Period in
respect of Permitted Business Acquisitions and other investments permitted hereunder (less
any amounts received in respect thereof as a return of capital), (d) Capital Expenditures
that the U.S. Borrower or any Subsidiary shall, during such Excess Cash Flow Period, become
obligated to make but that are not made during such Excess Cash Flow Period, provided that
the U.S. Borrower shall deliver a certificate to the Administrative Agent not later than 90
days after the end of such Excess Cash Flow Period, signed by a Responsible Officer of the
U.S. Borrower and certifying that such Capital Expenditures and the delivery of the related
equipment will be made in the following Excess Cash Flow Period, (e) Taxes paid in cash by
the U.S. Borrower and the Subsidiaries on a consolidated basis during such Excess Cash Flow
Period or that will be paid within six months after the close of such Excess Cash Flow
Period (provided that any amount so deducted that will be paid after the close of such
Excess Cash Flow Period shall not be deducted again in a subsequent Excess Cash Flow
Period) and for which reserves









 



25



have been established, including income tax expense and withholding tax expense
incurred in connection with cross-border transactions involving the Foreign Subsidiaries,
(f) an amount equal to any increase in Working Capital of the U.S. Borrower and the
Subsidiaries for such Excess Cash Flow Period, (g) to the extent not deducted in
determining EBITDA, consulting, monitoring and advisory fees paid to the Fund and Fund
Affiliates during such Excess Cash Flow Period, (h) cash expenditures made in respect of
Swap Agreements during such Excess Cash Flow Period, to the extent not reflected in the
computation of EBITDA or Interest Expense, (i) permitted dividends or distributions or
repurchases of its Equity Interests paid in cash by Holdings during such Excess Cash Flow
Period and permitted dividends paid by the U.S. Borrower or by any Subsidiary to any person
other than the U.S. Borrower or any of the other Subsidiaries during such Excess Cash Flow
Period, in each case in accordance with Section 6.06, (j) amounts paid in cash during such
Excess Cash Flow Period on account of (x) items that were accounted for as noncash
reductions of the Consolidated Net Income of the U.S. Borrower and the Subsidiaries in a
prior Excess Cash Flow Period and (y) reserves or accruals established in purchase
accounting, (k) extraordinary special charges or any nonrecurring loss paid in cash during
such Excess Cash Flow Period, (l) to the extent not deducted in the computation of Net
Proceeds in respect of any asset disposition or condemnation giving rise thereto, the
amount of any mandatory prepayment of Indebtedness (other than Indebtedness created
hereunder or under any other Loan Document), together with any interest, premium or
penalties required to be paid (and actually paid) in connection therewith, (m) the amount,
if any, by which consolidated deferred revenues of the U.S. Borrower and the Subsidiaries
decreased during such Excess Cash Flow Period, (n) the amount related to items that were
added to Consolidated Net Income in calculating EBITDA to the extent such items represented
a cash payment, or an accrual for a cash payment, by the U.S. Borrower and the Subsidiaries
on a consolidated basis during such Excess Cash Flow Period, (o) the amount of minority
interest expense added to Consolidated Net Income in calculating EBITDA for such Excess
Cash Flow Period and (p) any income relating to defined benefits pension or post-retirement
benefit plans and any cash payment relating to defined benefits pension or post-retirement
benefit plans net of any amounts received by Holdings, Intermediate Holdings, the U.S.
Borrower or any Subsidiary from Northrop Grumman Corporation pursuant to the Purchase
Agreement for post-retirement benefit plans,




     plus, without duplication, (q) an amount equal to any decrease in Working Capital for
such Excess Cash Flow Period, (r) all proceeds received during such Excess Cash Flow Period
of Capital Lease Obligations, purchase money Indebtedness, Sale and Lease-Back Transactions
pursuant to Section 6.03 and any other Indebtedness, in each case to the extent used to
finance any Capital Expenditure (other than Indebtedness under this Agreement to the extent
there is no corresponding deduction to Excess Cash Flow above in respect of the use of such
Borrowings), (s) all amounts referred to in clause (c) above to the extent funded with the
proceeds of the issuance of Equity Interests of, or capital contributions to, Holdings
after the Closing Date (to the extent not previously









 



26



used to prepay Indebtedness (other than Revolving Loans or Swingline Loans), make any
investment or capital expenditure or otherwise for any purpose resulting in a deduction to
Excess Cash Flow in any prior Excess Cash Flow Period) or any amount that would have
constituted Net Proceeds under clause (a) of the definition of the term “Net Proceeds” if
not so spent, in each case to the extent there is a corresponding deduction from Excess
Cash Flow above, (t) to the extent any Capital Expenditures and the corresponding delivery
of equipment referred to in clause (d) above do not occur in the Excess Cash Flow Period of
the U.S. Borrower specified in the certificate of the U.S. Borrower provided pursuant to
clause (d) above, the amount of such Capital Expenditures that were not so made in the
Excess Cash Flow Period of the U.S. Borrower specified in such certificates, (u) cash
payments received in respect of Swap Agreements during such Excess Cash Flow Period to the
extent (i) not included in the computation of EBITDA or (ii) such payments do not reduce
Cash Interest Expense, (v) any extraordinary or nonrecurring gain realized in cash during
such Excess Cash Flow Period (except to the extent such gain consists of Net Proceeds
subject to Section 2.11(c)), (w) to the extent deducted in the computation of EBITDA,
interest income, (x) the amount, if any, by which consolidated deferred revenues of the
U.S. Borrower and the Subsidiaries increased during such Excess Cash Flow Period, (y) the
amount related to items that were deducted from Consolidated Net Income in calculating
EBITDA to the extent such items represented cash received by the U.S. Borrower and the
Subsidiaries on a consolidated basis during such Excess Cash Flow Period, (z) the amount of
minority interest income deducted from Consolidated Net Income in calculating EBITDA for
such Excess Cash Flow Period and (aa) any expense relating to defined benefits pension or
post-retirement benefit plans.



          “Excess Cash Flow Period” shall mean (i) the period taken as one accounting period beginning
on January 1, 2008, and ending on December 31, 2008, and (ii) each fiscal year of the U.S. Borrower
ended thereafter.



          “Exchange Rate” shall mean on any day, for purposes of determining the Dollar Equivalent or
Euro Equivalent of any other currency, the rate at which such other currency may be exchanged into
Dollars, Sterling or Euros (as applicable), as set forth at approximately 11:00 a.m., London time,
on such day on the Reuters World Currency Page for such currency. In the event that such rate does
not appear on any Reuters World Currency Page, the Exchange Rate shall be determined by reference
to such other publicly available service for displaying exchange rates as may be agreed upon by the
Administrative Agent and the U.S. Borrower, or, in the absence of such an agreement, such Exchange
Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative
Agent in the market where its foreign currency exchange operations in respect of such currency are
then being conducted, at or about 10:00 a.m., Local Time, on such date for the purchase of Dollars,
Sterling or Euros (as applicable) 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 may use any reasonable method it deems appropriate to determine such rate, and
such determination shall be conclusive absent manifest error.









 



27


          “Excluded Taxes” shall mean, with respect to the Agents, any Lender, any Issuing Bank or any
other recipient of any payment to be made by or on account of any obligation of a Borrower
hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
lending office is located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction described in clause (a) above and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by a Borrower under Section
2.19(b)), any withholding tax (other than a withholding tax levied upon any amounts payable to such
Foreign Lender in respect of any interest in any Loan or Ancillary Credit Extension acquired by
such Foreign Lender pursuant to Section 11.01) that is in effect and would apply to amounts payable
hereunder 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 receive additional
amounts from a Borrower with respect to any withholding tax pursuant to Section 2.17(a).



          “Exempted Intercompany Investment” shall mean (a)(i) any investment or series of related
investments (valued at the time of the making thereof) by any Borrower or Subsidiary Loan Party in
any Subsidiary that is not a Loan Party, (ii) any intercompany loan or series of related
intercompany loans by any Borrower or Subsidiary Loan Party to any Subsidiary that is not a Loan
Party or (iii) any Guarantee or series of related Guarantees provided by any Borrower or Subsidiary
Loan Party of Indebtedness of any Subsidiary that is not a Loan Party, in each case in an amount
not in excess of $10,000,000 and (b) any keep-well or similar contingent arrangement provided to
Automotive Holdings (France), S.A.S. by a Loan Party (provided that amounts paid in respect
of any such keep-well or similar arrangement shall not constitute an Exempted Intercompany
Investment).



          “Existing Ancillary Commitment” shall mean an Ancillary Commitment (as defined in the Existing
Credit Agreement).



          “Existing Ancillary Credit Extension” shall mean an Ancillary Credit Extension (as defined in
the Existing Credit Agreement).



          “Existing Ancillary Facility” shall mean an Ancillary Facility (as defined in the Existing
Credit Agreement).



          “Existing Credit Agreement” shall have the meaning assigned to such term in the preamble to
this Agreement.



          “Existing Global Revolving Facility” shall mean the Existing Global Revolving Facility
Commitments and the extensions of credit made thereunder by the applicable Global Revolving
Facility Lenders.









 



28


          “Existing Global Revolving Facility Commitment” shall mean, with respect to each Global
Revolving Facility Lender, the commitment of such Global Revolving Facility Lender to make Existing
Global Revolving Facility Loans pursuant to Section 2.01 of the Existing Credit Agreement.



          “Existing Global Revolving Facility Lender” shall mean a Lender with an Existing Global
Revolving Facility Commitment or with outstanding Existing Global Revolving Facility Loans
immediately prior to the Effective Funding Time.



          “Existing Global Revolving Facility Loan” shall mean a Loan made by a Global Revolving
Facility Lender in respect of an Existing Global Revolving Facility Commitment pursuant to Section
2.01 of the Existing Credit Agreement.



          “Existing Revolving Loans” shall mean the Existing Global Revolving Facility Loans and the
Existing U.S. Revolving Facility Loans.



          “Existing Swingline Loan” shall mean a Swingline Loan (as defined in the Existing Credit
Agreement) made under the Existing Credit Agreement and outstanding immediately prior to the
Effective Funding Time.



          “Existing U.S. Revolving Facility” shall mean the Existing U.S. Revolving Facility Commitments
and the extensions of credit made hereunder in respect thereof by the U.S. Revolving Facility
Lenders.



          “Existing U.S. Revolving Facility Commitment” shall mean, with respect to each U.S. Revolving
Facility Lender, the commitment of such U.S. Revolving Facility Lender to make Existing U.S.
Revolving Facility Loans pursuant to Section 2.01 of the Existing Credit Agreement.



          “Existing U.S. Revolving Facility Lender” shall mean a Lender with an Existing U.S. Revolving
Facility Commitment or with outstanding Existing U.S. Revolving Facility Loans immediately prior to
the Effective Funding Time.



          “Existing U.S. Revolving Facility Loan” shall mean a Loan made by a U.S. Revolving Facility
Lender in respect of an Existing U.S. Revolving Facility Commitment pursuant to Section 2.01 of the
Existing Credit Agreement.



          “Facility” shall mean the respective facility and commitments utilized in making Loans and
credit extensions hereunder, it being understood that (a) prior to the Effective Funding Time,
there are six Facilities, i.e., the Tranche A Facility, the Tranche B Facility, the Tranche
B-2 Facility, the Tranche E Facility, the Existing Global Revolving Facility and the Existing U.S.
Revolving Facility, and (b) at and after the Effective Funding Time, there will be four Facilities,
i.e., the Tranche A-1 Facility, the Tranche B-1 Facility, the Global Revolving Facility and
the U.S. Revolving Facility.



          “Federal Funds Effective Rate” shall mean, for any day, the weighted average (rounded upward,
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









 



29



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 which is a Business Day, the
average (rounded upward, if necessary, to the next 1/100 of 1%) of the quotations for the day of
such transactions received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.



          “Fees” shall mean the Commitment Fees, the L/C Participation Fees, the Issuing Bank Fees and
the Administrative Agent Fees.



          “Financial Officer” of any person shall mean the Chief Financial Officer, principal accounting
officer, Treasurer, Assistant Treasurer or Controller of such person.



          “Financial Performance Covenants” shall mean the covenants of the U.S. Borrower set forth in
Sections 6.11 and 6.12.



          “Finco” shall mean TRW Automotive Finance (Luxembourg) S.À R.L., a company organized under the
laws of Luxembourg and a Wholly Owned Subsidiary.



          “Finco Equity Contribution” shall have the meaning assigned to such term in the preamble to
this Agreement.



          “Finco Guarantee” shall mean the Finco Guarantee Agreement, in the form of Exhibit G, between
Finco and the Collateral Agent, as amended, supplemented or otherwise modified from time to time.



          “Finco Loan” shall mean the loan from the U.S. Borrower to Finco on the Closing Date in an
aggregate principal amount equal to approximately $681,501,000 out of the proceeds of Loans made to
the U.S. Borrower on the Closing Date, which loan has been evidenced by a note and pledged pursuant
to the Collateral and Guarantee Requirement.



          “First Amended and Restated Credit Agreement” shall have the meaning assigned to such term in
the preamble to this Agreement.



          “First Amendment and Restatement Agreement” shall have the meaning assigned to such term in
the preamble to this Agreement.



          “First-Tier Subsidiary Pledge Agreement” shall mean the First-Tier Subsidiary Pledge Agreement
among the Subsidiaries party thereto and the Collateral Agent.



          “Foreign Acquiror Equity Contributions” shall mean direct or indirect equity contributions
from the U.S. Borrower to each Foreign Acquiror on the Closing Date in the respective amount set
forth on Schedule 1.01(b) in exchange for all the issued and outstanding Equity Interests of such
Foreign Acquiror.



          “Foreign Acquiror Loans” shall mean loans from Finco to the Foreign Acquirors on the Closing
Date in the respective principal amounts set forth on









 



30



Schedule 1.01(b) out of the proceeds of the Finco Loan, which loans are evidenced by notes or
other instruments reasonably satisfactory to the Collateral Agent.



          “Foreign Acquirors” shall mean the Wholly Owned Subsidiaries set forth on Schedule 1.01(b).



          “Foreign Currency” shall mean (a) with respect to an Ancillary Facility, any currency
reasonably acceptable to the Administrative Agent that is freely available, freely transferable and
freely convertible into Dollars and (b) otherwise, Euros and Sterling.



          “Foreign Currency Letter of Credit” shall mean a Letter of Credit denominated in a Foreign
Currency.



          “Foreign Guarantee” shall mean the Foreign Guarantee Agreement, in the form of Exhibit F,
among the Foreign Subsidiary Loan Parties and the Collateral Agent, as amended, supplemented or
otherwise modified from time to time.



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



          “Foreign Mortgages” shall mean the mortgages, deeds of trust, charges, assignments of leases
and rents and other security documents delivered on or prior to the Restatement Effective Date with
respect to Mortgaged Properties located outside the United States of America or pursuant to Section
5.10, each in form and substance reasonably satisfactory to the Collateral Agent.



          “Foreign Perfection Certificate” shall mean a certificate with respect to a Foreign Subsidiary
Loan Party in the form approved by the Collateral Agent.



          “Foreign Pledge Agreement” shall mean (a) each pledge agreement listed on Schedule 1.01(d) and
(b) each other pledge agreement with respect to the Pledged Collateral delivered pursuant to
Section 5.10 with respect to a Foreign Subsidiary Loan Party or Foreign Subsidiary, in form and
substance reasonably satisfactory to the Collateral Agent, in each case, as amended, supplemented
or otherwise modified from time to time.



          “Foreign Security Agreement” shall mean one or more security agreements, charges, mortgages or
pledges with respect to the Collateral (other than Pledged Collateral or Collateral that is subject
to a Foreign Mortgage) of a Foreign Subsidiary Loan Party, each in form and substance reasonably
satisfactory to the Collateral Agent, as amended, supplemented or otherwise modified from time to
time.



          “Foreign Subsidiary” shall mean any Subsidiary that is incorporated or organized under the
laws of any jurisdiction other than the United States of America, any State thereof or the District
of Columbia.









 



31


          “Foreign Subsidiary Borrower” shall mean, at any time, each Foreign Subsidiary that (a) has
entered into a Restatement Effective Date Foreign Subsidiary Borrower Agreement or (b) has been
designated as a Foreign Subsidiary Borrower by the U.S. Borrower pursuant to Section 2.20, other
than a Foreign Subsidiary Borrower that has ceased to be a Foreign Subsidiary Borrower as provided
in Section 2.20; provided, that until such time as such Foreign Subsidiary has become a Foreign
Subsidiary Loan Party and has satisfied the requirements described in Section 5.10(f), such Foreign
Subsidiary shall be permitted to be a Foreign Subsidiary Borrower solely for purposes of obtaining
an Unsecured Ancillary Facility and shall not be permitted to make any other Borrowings hereunder.



          “Foreign Subsidiary Borrower Agreement” shall mean a Foreign Subsidiary Borrower Agreement
substantially in the form of
Exhibit K-1.



          “Foreign Subsidiary Borrower Termination” shall mean a Foreign Subsidiary Borrower Termination
substantially in the form of Exhibit J-2.



          “Foreign Subsidiary Loan Party” shall mean (a) each Foreign Subsidiary that is set forth on
Schedule 1.01(e) and (b) each Wholly Owned Foreign Subsidiary that has met the requirements of
Section 5.10(f) after the Restatement Effective Date.



          “Fortuna” means Fortuna Assurance Company, a captive insurance company that provides insurance
coverage solely for the benefit of the U.S. Borrower and the Subsidiaries.



          “Fourth Amendment and Restatement Agreement” shall have the meaning assigned to such term in
the preamble to this Agreement.



          “Fund” shall mean Blackstone Capital Partners IV Merchant Banking Fund L.P., a Delaware
limited partnership.



          “Fund Affiliate” shall mean (i) each Affiliate of the Fund that is neither an operating
company nor a company controlled by an operating company and (ii) each general partner of the Fund
or any Fund Affiliate who is a partner or employee of the Blackstone Group L.P.



          “Funded Ancillary Credit Extension” shall mean, at any time, an extension of credit under an
Ancillary Facility in respect of which the applicable Ancillary Lender has advanced funds to, or on
behalf of, the Foreign Subsidiary Borrower thereunder.



          “GAAP” shall mean generally accepted accounting principles in effect from time to time in the
United States, applied on a consistent basis.



          “Global Lending Office” shall mean, as to any Global Revolving Facility Lender, the applicable
branch, office or Affiliate of such Global Revolving Facility Lender designated by such Global
Revolving Facility Lender to make Loans denominated in a Foreign Currency.









 



32


          “Global Revolving Facility” shall mean the Global Revolving Facility Commitments and the
extensions of credit made thereunder by the Global Revolving Facility Lenders.



          “Global Revolving Facility Commitment” shall mean, with respect to each Global Revolving
Facility Lender, the commitment of such Global Revolving Facility Lender to make Global Revolving
Facility Loans at or after the Effective Funding Time pursuant to Section 2.01, expressed as an
amount representing the maximum aggregate permitted amount of such Lender’s Global Revolving
Facility Credit Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender under Section 9.04. The amount of each Global Revolving Facility Lender’s Global
Revolving Facility Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Global Revolving Facility Lender shall have assumed its Global Revolving
Facility Commitment, as applicable. The aggregate amount of the Global Revolving Facility
Commitments on the date hereof is $700,000,000.



          “Global Revolving Facility Credit Exposure” shall mean, at any time, the sum of (a) the
aggregate principal amount of the Global Revolving Facility Loans denominated in Dollars
outstanding at such time, (b) the Dollar Equivalent of the aggregate principal amount of the Global
Revolving Facility Loans denominated in a Foreign Currency outstanding at such time and (c) the
Swingline Foreign Currency Exposure at such time. The Global Revolving Facility Credit Exposure of
any Global Revolving Facility Lender at any time at and after the Effective Funding Time shall be
the sum of (a) the aggregate principal amount of such Global Revolving Facility Lender’s Global
Revolving Facility Loans denominated in Dollars outstanding at such time, (b) the Dollar Equivalent
of the aggregate principal amount of such Global Revolving Facility Lender’s Global Revolving
Facility Loans denominated in a Foreign Currency outstanding at such time and (c) such Global
Revolving Facility Lender’s ratable share (based on Available Unused Commitments) of the Swingline
Foreign Currency Exposure at such time.



          “Global Revolving Facility Lender” shall mean a Lender with a Global Revolving Facility
Commitment or with outstanding Global Revolving Facility Loans.



          “Global Revolving Facility Loan” shall mean a Loan made by a Global Revolving Facility Lender
in respect of a Global Revolving Facility Commitment pursuant to Section 2.01. Each Global
Revolving Facility Loan denominated in Dollars shall be a Eurocurrency Loan or an ABR Loan, and
each Global Revolving Facility Loan denominated in a Foreign Currency shall be a Eurocurrency Loan.



          “Governmental Authority” shall mean any federal, state, local or foreign court or governmental
agency, authority, instrumentality or regulatory body.



          “Guarantee” of or by any person (the “guarantor”) shall mean (a) 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









 



33



“primary obligor”) in any manner, whether directly or indirectly, and including any obligation
of the guarantor, direct or indirect, (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or
services, to take-or-pay or otherwise) or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Indebtedness or other obligation, (ii) 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, (iii) 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, (iv) entered into for the
purpose of assuring in any other manner the holders of such Indebtedness or other obligation of the
payment thereof or to protect such holders against loss in respect thereof (in whole or in part) or
(v) as an account party in respect of any letter of credit or letter of guaranty issued to support
such Indebtedness or other obligation, or (b) any Lien on any assets of the guarantor securing any
Indebtedness (or any existing right, contingent or otherwise, of the holder of Indebtedness to be
secured by such a Lien) of any other person, whether or not such Indebtedness or other obligation
is assumed by the guarantor; provided, however, that the term “Guarantee” shall not include
endorsements for collection or deposit, in either case in the ordinary course of business, or
customary and reasonable indemnity obligations in effect on the Closing Date or entered into in
connection with any acquisition or disposition of assets permitted under this Agreement.



          “Hazardous Materials” shall mean 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.



          “Holdings” shall have the meaning assigned to such term in the introductory paragraph of this
Agreement.



          “Holdings Common Stock” shall mean common stock issued by Holdings.



          “Holdings Equity Contribution” shall have the meaning assigned to such term in the preamble to
this Agreement.



          “Incremental Effective Date” shall have the meaning set forth in Section 1 of the Tranche B-2
Facility Amendment.



          “Incremental Extensions of Credit” shall have the meaning assigned to such term in Section
2.23.



          “Incremental Facility Amendment” shall have the meaning assigned to such term in Section 2.23.



          “Incremental Facility Closing Date” shall have the meaning assigned to such term in Section
2.23.









 



34


          “Indebtedness” of any person shall mean, without duplication, (a) all obligations of such
person for borrowed money, (b) all obligations of such person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such person upon which interest charges are
customarily paid, (d) all obligations of such person under conditional sale or other title
retention agreements relating to property or assets purchased by such person, (e) all obligations
of such person issued or assumed as the deferred purchase price of property or services (other than
current trade liabilities and current intercompany liabilities (but not any refinancings,
extensions, renewals or replacements thereof) incurred in the ordinary course of business and
maturing within 365 days after the incurrence thereof), (f) all Guarantees by such person of
Indebtedness of others, (g) all Capital Lease Obligations of such person, (h) all payments that
such person would have to make in the event of an early termination, on the date Indebtedness of
such person is being determined, in respect of outstanding Swap Agreements, (i) all obligations,
contingent or otherwise, of such person as an account party in respect of letters of credit and (j)
all obligations of such person in respect of bankers’ acceptances. The Indebtedness of any person
shall include the Indebtedness of any partnership in which such person is a general partner, other
than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits
the liability of such person in respect thereof.



          “Indemnified Taxes” shall mean Taxes other than Excluded Taxes.



          “Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).



          “Installment Date” shall mean a Tranche A Installment Date, a Tranche A-1 Installment Date, a
Tranche B Installment Date, a Tranche B-2 Installment Date, a Tranche D Installment Date or a
Tranche E Installment Date, as applicable.



          “Intercreditor Agreement” shall mean the Intercreditor Agreement dated as of February 28,
2003, among JPMorgan Chase Bank, as Administrative Agent, the Receivables Subsidiary, the U.S.
Borrower and the Collateral Agent.



          “Interest Coverage Ratio” shall have the meaning given such term in Section 6.11.



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



          “Interest Expense” shall mean, with respect to any person for any period, the sum of (a) gross
interest expense of such person for such period on a consolidated basis, including (i) the
amortization of debt discounts, (ii) the amortization of all fees (including fees with respect to
Swap Agreements) payable in connection with the incurrence of Indebtedness to the extent included
in interest expense, (iii) the portion of any payments or accruals with respect to Capital Lease
Obligations allocable to interest expense and (iv) commissions, discounts, yield and other fees and
charges incurred in connection with the Permitted Receivables Financing which are payable to any
person other than the U.S. Borrower or a Subsidiary Loan Party and (b) capitalized interest of









 



35



such person. For purposes of the foregoing, gross interest expense shall be determined after
giving effect to any net payments made or received by the U.S. Borrower and the Subsidiaries with
respect to Swap Agreements.



          “Interest Payment Date” shall mean, (a) 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 that
would have been an Interest Payment Date had successive Interest Periods of three months’ duration
been applicable to such Borrowing and, in addition, the date of any refinancing or conversion of
such Borrowing with or to a Borrowing of a different Type, (b) with respect to any ABR Loan, the
last day of each calendar quarter, (c) with respect to any Swingline Dollar Loan, the day that such
Swingline Dollar Loan is required to be repaid pursuant to Section 2.09(a) and (d) with respect to
any Swingline Foreign Currency Loan, the last day of the Interest Period applicable to such
Swingline Foreign Currency Loan or any day otherwise agreed to by the Swingline Foreign Currency
Lenders.



          “Interest Period” shall mean, (a) as to any Eurocurrency Borrowing, the period commencing on
the date of such Borrowing or on the last day of the immediately preceding Interest Period
applicable to such Borrowing, as applicable, and ending on the numerically corresponding day (or,
if there is no numerically corresponding day, on the last day) in the calendar month that is 1, 2,
3 or 6 months thereafter (or (i) 9 or 12 months, if at the time of the relevant Borrowing, all
Lenders make interest periods of such length available and (ii) solely with respect to any
Eurocurrency Borrowing that is a Revolving Borrowing, 7 or 14 days), as the applicable Borrower may
elect, or the date any Eurocurrency Borrowing is converted to an ABR Borrowing in accordance with
Section 2.07 or repaid or prepaid in accordance with Section 2.09, 2.10 or 2.11 and (b) as to any
Swingline Foreign Currency Borrowing, the period commencing on the date of such Borrowing and
ending on the day that is designated in the notice delivered pursuant to Section 2.04 with respect
to such Swingline Foreign Currency Borrowing, which shall not be later than the seventh day
thereafter; provided, however, that if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day. Interest shall accrue from and including the first
day of an Interest Period to but excluding the last day of such Interest Period.



          “Intermediate Holdings” shall have the meaning assigned to such term in the introductory
paragraph of this Agreement.



          “Intermediate Holdings Equity Contribution” shall have the meaning assigned to such term in
the preamble to this Agreement.



          “Intermediate Holdings Loan” shall mean the loan from the U.S. Borrower to Intermediate
Holdings in an aggregate principal amount of $499,000,000 made with the proceeds of the Tranche E
Term Loans and approximately $200,000,000 of cash of









 



36



the U.S. Borrower, which loan has been evidenced by a note and pledged pursuant to the
Collateral and Guarantee Requirement.



          “Investment Grade Rating” shall mean any of (a) a corporate rating of the U.S. Borrower by S&P
of BBB- (with a stable outlook) or better or (b) a corporate family rating of the U.S. Borrower by
Moody’s of Baa3 (with a stable outlook) or better.



          “IPO” shall have the meaning assigned to such term in the preamble to this Agreement.



          “IPO Repurchase Transaction” shall have the meaning assigned to such term in the preamble to
this Agreement.



          “Issuing Bank” shall mean JPMorgan Chase Bank, N.A., each other Issuing Bank designated
pursuant to Section 2.05(l), in each case in its capacity as an issuer of Letters of Credit
hereunder, and its successors in such capacity as provided in Section 2.05(i). An Issuing Bank
may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of
such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.



          “Issuing Bank Fees” shall have the meaning assigned to such term in Section 2.12(b).



          “Judgment Currency” shall have the meaning assigned to such term in Section 9.17(b).



          “L/C Disbursement” shall mean a payment or disbursement made by an Issuing Bank pursuant to a
Letter of Credit.



          “L/C Participation Fee” shall have the meaning assigned such term in Section 2.12(b).



          “Lender” shall mean each financial institution listed on Schedule 2.01 that has executed a
Lender Addendum on the Restatement Effective Date, as well as any person that becomes a “Lender”
hereunder pursuant to Section 9.04 or pursuant to an Incremental Facility Amendment. For the
avoidance of doubt, it is understood that each financial institution that has executed a Lender
Addendum on the Restatement Effective Date shall thereby become a party to this Agreement and a
Lender hereunder.



          “Lender Default” shall mean (i) the refusal (which has not been retracted) of a Lender to make
available its portion of any Borrowing, to acquire participations in a Swingline Loan pursuant to
Section 2.04 or to fund its portion of any unreimbursed payment under Section 2.05(e), (ii) a
Lender having notified in writing the applicable Borrower and/or the Applicable Agent that it does
not intend to comply with its obligations under Section 2.04, 2.05 or 2.06 or (iii) the refusal of
an Ancillary Lender to extend credit under an Ancillary Facility other than a refusal in accordance
with the terms of the applicable Ancillary Facility Document and the terms hereof.









 



37


          “Lenders’ Presentation” shall mean the Lenders’ Presentation dated April 16, 2007, as modified
or supplemented prior to the Restatement Effective Date.



          “Letter of Credit” shall mean any letter of credit issued pursuant to Section 2.05 (including
each letter of credit issued under the Existing Credit Agreement and outstanding at the Effective
Funding Time).



          “Leverage Ratio” shall mean, on any date, the ratio of (a) Consolidated Total Net Debt as of
such date to (b) EBITDA for the period of four consecutive fiscal quarters of the U.S. Borrower
most recently ended as of such date, all determined on a consolidated basis in accordance with
GAAP; provided that to the extent any Asset Disposition or any Permitted Business Acquisition (or
any similar transaction or transactions that require a waiver or a consent of the Required Lenders
pursuant to Section 6.04 or Section 6.05) has occurred during the relevant Test Period, EBITDA
shall be determined for the respective Test Period on a Pro Forma Basis for such occurrences.



          “LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing for any Interest Period,
the rate per annum determined by the Applicable Agent at approximately 11:00 a.m., London time, on
the Quotation Day for such Interest Period by reference to the British Bankers’ Association
Interest Settlement Rates for deposits in the currency of such Borrowing (as reflected on the
applicable Telerate screen page), for a period equal to such Interest Period; provided that, to the
extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this
definition, the “LIBO Rate” shall be the average (rounded upward, if necessary, to the next 1/100
of 1%) of the respective interest rates per annum at which deposits in the currency of such
Borrowing are offered for such Interest Period to major banks in the London interbank market by
JPMorgan Chase Bank, N.A., at approximately 11:00 a.m., London time, on the Quotation Day for such
Interest Period.



          “Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien,
hypothecation, pledge, encumbrance, charge or security interest in or on 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” shall mean this Agreement, the Letters of Credit, the Security Documents, the
Ancillary Facility Documents, the Intercreditor Agreement, any promissory note issued under Section
2.09(e) and any Incremental Facility Amendment.



          “Loan Parties” shall mean Holdings, Intermediate Holdings, the Borrowers and the Subsidiary
Loan Parties.



          “Loans” shall mean the Term Loans, the Revolving Loans, the Swingline Loans and any loans made
in respect of any Incremental Extension of Credit.









 



38


          “Local Time” shall mean (a) with respect to a Loan or Borrowing denominated in Dollars and
made from a U.S. Lending Office, New York City time and (b) with respect to a Loan or Borrowing
denominated in any Foreign Currency or a Loan or Borrowing denominated in Dollars and made from a
Global Lending Office, London time.



          “London Administrative Office” shall mean the office of the Administrative Agent at J.P.
Morgan Europe Limited, 125 London Wall, London EC2Y 5AJ, England, Attention of Claire Johnson
(Telecopy No. 011-44-207-777-2360).



          “Lucas” shall mean Lucas Industries Limited, a company organized under the Laws of England and
Wales.



          “Majority Lenders” of any Facility shall mean, at any time, Lenders under such Facility having
Loans, Ancillary Commitments and unused Commitments representing more than 50% of the sum of all
Loans outstanding under such Facility, Ancillary Commitments and unused Commitments under such
Facility at such time.



          “Management Equity Loan” shall mean (a) the loan on the Closing Date by the U.S. Borrower or
Holdings to the Management Equity Vehicle in an aggregate principal amount not in excess of
$12,000,000 and (b) if applicable, the loan on the Closing Date by the U.S. Borrower to Holdings in
an aggregate principal amount equal to the loan, if any, by Holdings to the Management Equity
Vehicle on the Closing Date.



          “Management Equity Vehicle” shall mean trust accounts pursuant to escrow agreements dated as
of February 21, 2003, and as of the Closing Date.



          “Management Group” shall mean the group consisting of the directors, executive officers and
other management personnel of the U.S. Borrower, Holdings and Intermediate Holdings on the Closing
Date together with (1) any new directors whose election by such boards of directors or whose
nomination for election by the stockholders of the U.S. Borrower, Holdings, or Intermediate
Holdings, as applicable, was approved by a vote of a majority of the directors of the U.S.
Borrower, Holdings or Intermediate Holdings, as applicable, then still in office who were either
directors on the Closing Date or whose election or nomination was previously so approved and (2)
executive officers and other management personnel of the U.S. Borrower, Holdings or Intermediate
Holdings, as applicable, hired at a time when the directors on the Closing Date together with the
directors so approved constituted a majority of the directors of the U.S. Borrower, Holdings or
Intermediate Holdings, as applicable.



          “Margin Stock” shall have the meaning given such term in Regulation U.



          “Material Adverse Effect” shall mean the existence of events, conditions and/or contingencies
that have had or are reasonably likely to have (a) a materially adverse effect on the business,
operations, properties, assets or financial condition of the U.S. Borrower and the Subsidiaries,
taken as a whole, (b) a material impairment of the ability of Holdings, Intermediate Holdings, the
U.S. Borrower or any of the Subsidiaries to perform any of its material obligations under any Loan
Document to which it is or will









 



39



be a party or to consummate the Restatement Transactions or (c) an impairment of the validity
or enforceability of, or a material impairment of the material rights, remedies or benefits
available to the Lenders, any Issuing Bank, the Administrative Agent or the Collateral Agent under,
any Loan Document.



          “Material Indebtedness” shall mean Indebtedness (other than Loans, Ancillary Credit Extensions
and Letters of Credit) of any one or more of the Loan Parties in an aggregate principal amount
exceeding $100,000,000.



          “Maximum Rate” shall have the meaning provided in Section 9.09.



          “Moody’s” shall mean Moody’s Investors Service, Inc.



          “Mortgaged Properties” shall mean the owned real properties of the Loan Parties set forth on
Schedule 3.18.



          “Mortgages” shall mean the U.S. Mortgages and the Foreign Mortgages.



          “Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA
to which a Borrower, Holdings, Intermediate Holdings or any ERISA Affiliate (other than one
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414) is making
or accruing an obligation to make contributions, or has within any of the preceding five plan years
made or accrued an obligation to make contributions.



          “Net Income” means, with respect to any person, the net income (loss) of such person,
determined in accordance with GAAP and before any reduction in respect of preferred stock
dividends.



          “Net Proceeds” shall mean (a) 100% of the cash proceeds actually received by Holdings,
Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries (including any cash payments
received by way of deferred payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise and including casualty insurance settlements and
condemnation awards, but only as and when received) from any loss, damage, destruction or
condemnation of, or any sale, transfer or other disposition (including any sale and leaseback of
assets and any mortgage or lease of real property) to any person of any asset or assets of the U.S.
Borrower or any of the Subsidiaries (other than those pursuant to Section 6.05(a), (b), (c), (e),
(f), (g), (i) or (j)), net of (i) attorneys’ fees, accountants’ fees, investment banking fees,
survey costs, title insurance premiums, and related search and recording charges, transfer Taxes,
deed or mortgage recording Taxes, required debt payments and required payments of other obligations
relating to the applicable asset (other than pursuant hereto or pursuant to the New Senior Notes,
Senior Notes or Senior Subordinated Notes), other customary expenses and brokerage, consultant and
other customary fees actually incurred in connection therewith and (ii) Taxes paid or payable as a
result thereof, provided that, if no Event of Default exists and the U.S. Borrower shall deliver a
certificate of a Responsible Officer of the U.S. Borrower to the Administrative Agent promptly
following receipt of any such proceeds setting forth the









 



40



U.S. Borrower’s intention to use any portion of such proceeds, to acquire, maintain, develop,
construct, improve, upgrade or repair assets (including inventory) useful in the business of the
U.S. Borrower and the Subsidiaries, or make investments pursuant to Section 6.04(j), in each case
within 15 months of such receipt, such portion of such proceeds shall not constitute Net Proceeds
except to the extent not so used or contractually committed to be used within such 15-month period
(it being agreed that if any of such proceeds are not so used within such 15-month period but
within such 15-month period are contractually committed to be used, such proceeds shall be used
within 18 months from the receipt thereof and, to the extent not so used within such 18-month
period, shall constitute Net Proceeds notwithstanding this proviso), and provided, further, that
(x) no proceeds realized in a single transaction or series of related transactions shall constitute
Net Proceeds unless such proceeds shall exceed $20,000,000 and (y) no proceeds shall constitute Net
Proceeds in any fiscal year until the aggregate amount of all such proceeds in such fiscal year
(excluding any proceeds that do not constitute Net Proceeds during such fiscal year pursuant to
clause (x) of this proviso) shall exceed $100,000,000, and (b) 100% of the cash proceeds from the
incurrence, issuance or sale by the U.S. Borrower or any of the Subsidiaries of any Indebtedness
(other than Indebtedness permitted pursuant to Section 6.01), net of all Taxes and fees (including
investment banking fees), commissions, costs and other expenses, in each case incurred in
connection with such issuance or sale. For purposes of calculating the amount of Net Proceeds,
fees, commissions and other costs and expenses payable to Holdings, Intermediate Holdings or the
U.S. Borrower or any Affiliate of either of them shall be disregarded, except for financial
advisory fees customary in type and amount paid to Affiliates of the Fund.



          “New Senior Note Documents” shall mean the New Senior Notes and the New Senior Note
Indentures.



          “New Senior Note Indentures” shall mean the Indentures dated as of March 26, 2007, among the
U.S. Borrower, the Subsidiaries party thereto and the trustee named therein from time to time, as
in effect on the Restatement Effective Date and as amended, supplemented or otherwise modified from
time to time in accordance with the requirements thereof and of this Agreement.



          “New Senior Notes” shall mean the U.S. Borrower’s 6-3/8% Senior Notes due 2014, 7% Senior
Notes due 2014 and 7-1/4% Senior Notes due 2017, in each case issued pursuant to the New Senior
Note Indentures, and any notes issued by the U.S. Borrower in exchange for, and as contemplated by,
the New Senior Notes with substantially identical terms as the New Senior Notes.



          “Newco UK” shall have the meaning assigned to such term in the preamble to this Agreement.



          “Newco UK Equity Contribution” shall have the meaning assigned to such term in the preamble to
this Agreement.



          “Newco UK Loan” shall mean the loan from the U.S. Borrower to Newco UK on the Closing Date in
an aggregate principal amount equal to $725,740,000 out of









 



41



the proceeds of Loans made to the U.S. Borrower on the Closing Date, which loan is evidenced
by a note and pledged pursuant to a Foreign Pledge Agreement.



          “Northrop Space and Mission” shall mean Northrop Grumman Space & Mission Systems Corp., an
Ohio corporation.



          “Notice of Termination” shall have the meaning assigned to such term in Section 2.22(e)(ii).



          “Obligations” shall mean the “Obligations”, as such term is defined in the U.S. Collateral
Agreement, and the “Foreign Obligations”, as such term is defined in the Foreign Guarantee.



          “Original Credit Agreement” shall mean the Credit Agreement dated as of February 27, 2003
among Holdings, Intermediate Holdings, the U.S. Borrower, the Foreign Subsidiary Borrowers party
thereto, the lenders party thereto from time to time and JPMorgan Chase Bank, as administrative
agent, Credit Suisse First Boston, acting through its Cayman Islands Branch, Lehman Commercial
Paper Inc., and Deutsche Bank Securities Inc., each as co-syndication agent, and Bank of America,
N.A., as documentation agent.



          “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, the Loan Documents.



          “Participant” shall have the meaning assigned to such term in Section 9.04(c).



          “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.



          “Pension Act” shall mean the Pension Act of 2006, as amended.



          “Perfection Certificates” shall mean the U.S. Perfection Certificate and the Foreign
Perfection Certificates.



          “Permitted Business Acquisition” shall mean any acquisition of all or substantially all the
assets of, or all the Equity Interests (other than directors’ qualifying shares) in, a person or
division or line of business of a person (or any subsequent investment made in a person, division
or line of business previously acquired in a Permitted Business Acquisition) if (a) such person or
division is engaged in the same or a similar line of business as the U.S. Borrower and the
Subsidiaries or a reasonable extension, development or expansion of such line of business or a
business ancillary to such line of business, (b) such acquisition was not preceded by, or effected
pursuant to, an unsolicited or hostile offer and (c) immediately after giving effect thereto: (i)
no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(ii) all transactions related thereto shall be consummated in accordance with









 



42



applicable laws; (iii) the Equity Interests of any acquired or newly formed corporation,
partnership, association or other business entity are held directly by (A) the U.S. Borrower, (B) a
Wholly Owned Subsidiary that is a Domestic Subsidiary Loan Party or (C) if such corporation,
partnership, association or other business entity is incorporated or organized under the laws of
any jurisdiction other than the United States of America, any State thereof or the District of
Columbia, a Foreign Subsidiary Loan Party and, in each case, such acquired or newly formed
Subsidiary shall become a Subsidiary Loan Party and all actions required to be taken with respect
to such acquired or newly formed Subsidiary Loan Party under Section 5.10 shall have been taken and
(iv)(A) the U.S. Borrower and the Subsidiaries shall be in compliance, on a Pro Forma Basis after
giving effect to such acquisition or formation, with the covenants contained in Sections 6.11 and
6.12 recomputed as at the last day of the most recently ended fiscal quarter of the U.S. Borrower
and the Subsidiaries, and the U.S. Borrower shall have delivered to the Administrative Agent a
certificate of a Responsible Officer of the U.S. Borrower to such effect, together with all
relevant financial information for such Subsidiary or assets, and (B) any acquired or newly formed
Subsidiary shall not be liable for any Indebtedness (except for Indebtedness permitted by Section
6.01).



          “Permitted Cure Security” means an equity security of Holdings (or the surviving entity in any
merger of Holdings permitted under Section 6.05(b)) having no mandatory redemption, repurchase or
similar requirements prior to December 31, 2012, and upon which all dividends or distributions (if
any) shall be payable solely in additional shares of such equity security.



          “Permitted Holder” shall mean the Fund, the Fund Affiliates and the Management Group.



          “Permitted Investments” shall mean: (a) direct obligations of the United States of America or
any agency thereof or obligations guaranteed by the United States of America or any agency thereof;
(b) time deposit accounts, certificates of deposit and money market deposits maturing within 365
days of the date of acquisition thereof issued by a bank or trust company that is organized under
the laws of the United States of America, any state thereof or any foreign country recognized by
the United States of America having capital, surplus and undivided profits having a Dollar
Equivalent that is in excess of $500,000,000 and whose long-term debt, or whose parent holding
company’s long-term debt, is rated A (or such similar equivalent rating or higher by at least one
nationally recognized statistical rating organization (as defined in Rule 436 under the Securities
Act); (c) repurchase obligations with a term of not more than 365 days for underlying securities of
the types described in clause (a) above entered into with a bank meeting the qualifications
described in clause (b) above; (d) commercial paper, maturing not more than 365 days after the date
of acquisition, issued by a corporation (other than an Affiliate of any Borrower) organized and in
existence under the laws of the United States of America or any foreign country recognized by the
United States of America with a rating at the time as of which any investment therein is made of
P-1 (or higher) according to Moody’s, or A-1 (or higher) according to S&P; (e) securities with
maturities of twelve months or less from the date of acquisition issued or fully guaranteed by any
State, commonwealth or territory of the United States of America, or by any political









 



43



subdivision or taxing authority thereof, and rated at least A by S&P or A by Moody’s; (f) in
the case of any Foreign Subsidiary: (i) direct obligations of the sovereign nation (or any agency
thereof) in which such Foreign Subsidiary is organized and is conducting business or in obligations
fully and unconditionally guaranteed by such sovereign nation (or any agency thereof), (ii)
investments of the type and maturity described in clauses (a) through (e) above of foreign
obligors, which investments or obligors (or the parents of such obligors) have ratings described in
such clauses or equivalent ratings from comparable foreign rating agencies or (iii) investments of
the type and maturity described in clauses (a) through (e) above of foreign obligors (or the
parents of such obligors), which investments or obligors (or the parents of such obligors) are not
rated as provided in such clauses or in clause (ii) above but which are, in the reasonable judgment
of the U.S. Borrower, comparable in investment quality to such investments and obligors (or the
parents of such obligors); (g) shares of mutual funds whose investment guidelines restrict 95% of
such funds’ investments to those satisfying the provisions of clauses (a) through (e) above; (h)
money market funds that (i) comply with the criteria set forth in Rule 2a-7 under the Investment
Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets
of at least $5,000,000,000; and (i) time deposit accounts, certificates of deposit and money market
deposits in an aggregate face amount not in excess of 5% of the total assets of the U.S. Borrower
and the Subsidiaries, on a consolidated basis, as of the end of the U.S. Borrower’s most recently
completed fiscal year.



          “Permitted Notes Refinancing Indebtedness” means any Indebtedness of the U.S. Borrower issued
in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace,
defease or refund (collectively, to “Refinance”), all or any portion of the New Senior Notes,
Senior Notes or Senior Subordinated Notes (or previous refinancings thereof constituting Permitted
Notes Refinancing Indebtedness); provided that (a) the principal amount of such Permitted Notes
Refinancing Indebtedness does not exceed the principal amount of the New Senior Notes, Senior Notes
or Senior Subordinated Notes being Refinanced (plus unpaid accrued interest, fees and premium
thereon (including in connection with a tender offer)), (b) the stated maturity of such Permitted
Notes Refinancing Indebtedness is no earlier than 180 days after the Tranche B-1 Maturity Date or
the maturity date for any Incremental Extensions of Credit outstanding on the date of issuance of
such Indebtedness, (c) such Permitted Notes Refinancing Indebtedness does not require any scheduled
amortization, principal or sinking fund payments earlier than 180 days after the Tranche B-1
Maturity Date or the maturity date for any Incremental Extensions of Credit outstanding on the date
of issuance of such Indebtedness, (d) such Permitted Notes Refinancing Indebtedness does not have
different obligors or guarantors than those with respect to the New Senior Notes, Senior Notes or
Senior Subordinated Notes, as applicable, (e) such Permitted Notes Refinancing Indebtedness is not
secured by any collateral and (f) all other terms (excluding interest rates and redemption
premiums) of such Permitted Refinancing Indebtedness are not less favorable to the Lenders in any
material respect than those contained in the Senior Notes.









 



44


          “Permitted Receivables Documents” means the U.S. Receivables Purchase Agreement, the
Receivables Transfer Agreement and the Receivables Loan Agreement and all other documents and
agreements relating to the Permitted Receivables Financing.



          “Permitted Receivables Financing” shall mean (a)(i) the sale by the U.S. Borrower and certain
Subsidiaries of accounts receivable to the Transferor pursuant to the U.S. Receivables Purchase
Agreement and (ii) the sale of such accounts receivable by the Transferor to the Receivables
Subsidiary pursuant to the Receivables Transfer Agreement, (b) the loans made by the lenders under
the Receivables Loan Agreement to the Receivables Subsidiary to finance the purchase of such
accounts receivables and loans or (c) any sale or financing by the U.S. Borrower or any Subsidiary
of accounts receivable (including any bills of exchange), provided that (A) any such sale or
financing shall provide for recourse to such Subsidiary or the U.S. Borrower (as applicable) only
to the extent customary for similar sales or financings in the jurisdiction relevant to such sale
or financing and (B) the sum of, without duplication, (x) the aggregate principal amounts financed
pursuant to clauses (a) and (b) of this definition, (y) the aggregate principal amounts financed
pursuant to clause (c) of this definition and (z) the aggregate Net Investment in accounts
receivable pursuant to clause (c) shall not exceed $600,000,000 at any time. For the purpose of
this definition, “Net Investment” means the cash purchase price paid by the buyer in connection
with its purchase of accounts receivable (including any bills of exchange) less the amount of
collections received in respect of such accounts receivable and paid to such buyer, excluding any
amounts applied to purchase fees or discount or in the nature of interest, in each case as
determined in good faith and in a consistent and commercially reasonable manner by the U.S.
Borrower.



          “person” shall mean any natural person, corporation, business trust, joint venture,
association, company, partnership, limited liability company or government, individual or family
trusts, or any agency or political subdivision thereof.



          “Plan” shall mean 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 and in respect of which Holdings,
Intermediate Holdings, the U.S. Borrower, any Subsidiary 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.



          “Pledged Collateral” shall have the meaning assigned to such term in the U.S. Collateral
Agreement or a Foreign Pledge Agreement, as applicable.



          “primary obligor” shall have the meaning given such term in the definition of the term
Guarantee.



          “Prime Rate” shall mean the rate of interest per annum publicly announced from time to time by
the Administrative Agent as its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective on the date such change is publicly announced as being
effective.









 



45


          “Pro Forma Basis” shall mean, as to any person, for any events as described in clauses (i) and
(ii) below that occur subsequent to the commencement of a period for which the financial effect of
such events is being calculated, and giving effect to the events for which such calculation is
being made, such calculation as will give pro forma effect to such events as if such events
occurred on the first day of the four consecutive fiscal quarter period last ended on or before the
occurrence of such event (the “Reference Period”):




     (i) in making any determination of EBITDA, pro forma effect shall be given to any
Asset Disposition and to any Permitted Business Acquisition (or any similar transaction or
transactions that require a waiver or consent of the Required Lenders pursuant to Section
6.04 or 6.05), in each case that occurred during the Reference Period (or, in the case of
determinations made pursuant to the definition of the term “Permitted Business Acquisition”
and Section 2.23, occurring during the Reference Period or thereafter and through and
including the date upon which the respective Permitted Business Acquisition is consummated
or the date of the applicable Incremental Extension of Credit as the case may be); and




     (ii) in making any determination on a Pro Forma Basis, (x) all Indebtedness
(including Indebtedness incurred or assumed and for which the financial effect is being
calculated, whether incurred under this Agreement or otherwise, but excluding normal
fluctuations in revolving Indebtedness incurred for working capital purposes and amounts
outstanding under any Permitted Receivables Financing, in each case not to finance any
acquisition) incurred or permanently repaid during the Reference Period (or, in the case of
determinations made pursuant to the definition of the term “Permitted Business Acquisition”
and Section 2.23 occurring during the Reference Period or thereafter and through and
including the date upon which the respective Permitted Business Acquisition is consummated
or the date of the applicable Incremental Extension of Credit, as the case may be) shall be
deemed to have been incurred or repaid at the beginning of such period and (y) Interest
Expense of such person attributable to interest on any Indebtedness, for which pro forma
effect is being given as provided in preceding clause (x), bearing floating interest rates
shall be computed on a pro forma basis as if the rates that would have been in effect
during the period for which pro forma effect is being given had been actually in effect
during such periods.


Pro forma calculations made pursuant to the definition of “Pro Forma Basis” shall be determined in
good faith by a Responsible Officer of the U.S. Borrower and, for any fiscal period ending on or
prior to the first anniversary of a Permitted Business Acquisition or Asset Disposition (or any
similar transaction or transactions that require a waiver or consent of the Required Lenders
pursuant to Section 6.04 or 6.05), may include adjustments to reflect operating expense reductions
reasonably expected to result from such Permitted Business Acquisition, Asset Disposition or other
similar transaction, less the amount of costs reasonably expected to be incurred by the U.S.
Borrower and the Subsidiaries to achieve such cost savings, to the extent that the U.S. Borrower
delivers to the Administrative Agent (i) a certificate of a Financial Officer of the U.S. Borrower








 



46


setting forth such operating expense reductions and the costs to achieve such reductions and (ii)
information and calculations supporting in reasonable detail such estimated operating expense
reductions and the costs to achieve such reductions.




          “Projections” shall mean the projections of the U.S. Borrower and the Subsidiaries included in
the Lenders’ Presentation and any other projections and any forward-looking statements (including
statements with respect to booked business) of such entities furnished to the Lenders or the
Administrative Agent by or on behalf of Holdings, Intermediate Holdings, the U.S. Borrower or a
Subsidiary prior to the Restatement Effective Date in connection with the Restatement Transactions.



          “Purchase Agreement” shall mean the Master Purchase Agreement between BCP Acquisition Company
L.L.C. and Northrop Grumman Corporation dated as of November 18, 2002, as amended, restated,
supplemented or otherwise modified from time to time in accordance with the requirements thereof
and of this Agreement.



          “Quotation Day” shall mean, with respect to any Eurocurrency Borrowing or Swingline Foreign
Currency Borrowing and any Interest Period, the day on which it is market practice in the relevant
interbank market for prime banks to give quotations for deposits in the currency of such Borrowing
for delivery on the first day of such Interest Period. If such quotations would normally be given
by prime banks on more than one day, the Quotation Day will be the last of such days.



          “Reaffirmation Agreement” shall mean the Reaffirmation Agreement, attached hereto as Exhibit
P, among Holdings, Intermediate Holdings, the U.S. Borrower and the other Reaffirming Parties (as
defined therein), as amended, supplemented or otherwise modified from time to time.



          “Receivables Loan Agreement” shall mean the Receivables Loan Agreement dated as of February
28, 2003, by and among the Receivables Subsidiary, the conduit lenders and committed lenders from
time to time party thereto, JPMorgan Chase Bank, Credit Suisse First Boston, Lehman Commercial
Paper Inc. and Deutsche Bank A.G., New York Branch, as funding agents, and JPMorgan Chase Bank, as
administrative agent, as it may be amended, supplemented or otherwise modified to the extent
permitted by Section 6.09 and (b) any agreement replacing the Receivables Loan Agreement, provided
that such replacing agreement contains terms that are substantially similar to such Receivables
Loan Agreement and that are otherwise no more adverse in any material respect to the Lenders than
the applicable terms of such Receivables Loan Agreement.



          “Receivables Subsidiary” shall mean TRW Auto Global Receivables, LLC, a Delaware limited
liability company.



          “Receivables Transfer Agreement” shall mean (a) the Transfer Agreement dated as of February
28, 2003, between the Transferor and the Receivables Subsidiary, relating to the Permitted
Receivables Financing, as it may be amended, supplemented or otherwise modified to the extent
permitted by Section 6.09 and (b) any agreement replacing such Receivables Transfer Agreement,
provided that such replacing agreement









 



47



contains terms that are substantially similar to such Receivables Transfer Agreement and that
are otherwise no more adverse in any material respect to the Lenders than the applicable terms of
such Receivables Transfer Agreement.



          “Reference Period” shall have the meaning assigned to such term in the definition of the term
“Pro Forma Basis”.



          “Refinance” shall have the meaning assigned to such term in the definition of “Permitted Notes
Refinancing Indebtedness”, and “Refinanced” and “Refinancing” shall have the meanings correlative
thereto.



          “Register” shall have the meaning assigned to such term in Section 9.04(b).



          “Regulation U” shall mean Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.



          “Regulation X” shall mean Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.



          “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.



          “Remaining Present Value” shall mean, as of any date with respect to any lease, the present
value as of such date of the scheduled future lease payments with respect to such lease, determined
with a discount rate equal to a market rate of interest for such lease reasonably determined at the
time such lease was entered into.



          “Reportable Event” shall mean any reportable event as defined in Section 4043(c) of ERISA or
the regulations issued thereunder, other than those events as to which the 30-day notice period
referred to in Section 4043(c) of ERISA has been waived, with respect to a Plan (other than a Plan
maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection
(m) or (o) of Section 414 of the Code).



          “Required Lenders” shall mean, at any time, Lenders having (a) Loans (other than Swingline
Loans) outstanding, (b) Revolving L/C Exposures, (c) Swingline Exposures, (d) unused U.S. Revolving
Facility Commitments (excluding Commitments to make Swingline Loans), (e) Available Unused
Commitments, (f) Ancillary Commitments, (g) unfunded Tranche A-1 Term Loan Commitments and (h)
unfunded Tranche B-1 Term Loan Commitments, that taken together, represent more than 50% of the sum
of (i) all Loans (other than Swingline Loans) outstanding, (ii) Revolving L/C Exposures, (iii)
Swingline Exposures, (iv) unused U.S. Revolving Facility Commitments (excluding commitments to make
Swingline Loans), (v) the total Available Unused Commitments, (vi) Ancillary Commitments, (vii) all
unfunded Tranche A-1 Term Loan Commitments and (viii) all unfunded Tranche B-1 Term Loan
Commitments at such time. For purposes of the foregoing, the Loans, Revolving L/C Exposures,
Swingline









 



48



Exposures, unused U.S. Revolving Facility Commitment, Available Unused Commitment, Ancillary
Commitment, unfunded Tranche A-1 Term Loan Commitment and unfunded Tranche B-1 Term Loan Commitment
of any Defaulting Lender shall be disregarded in determining the Required Lenders at any time.



          “Required Percentage” shall mean, with respect to an Excess Cash Flow Period, (i) 25%, if the
Leverage Ratio at the end of such Excess Cash Flow Period is greater than 3.50 to 1.00 and (ii) 0%,
if the Leverage Ratio at the end of such Excess Cash Flow Period is less than or equal to 3.50 to
1.00.



          “Required Restatement Lenders” shall mean (a) each of the Revolving Facility Lenders, (b) each
of the Tranche A-1 Term Loan Lenders and (c) each of the Tranche B-1 Term Loan Lenders.



          “Reserve Account” shall have the meaning assigned to such term in Section 11.02(a).



          “Reset Date” shall have the meaning assigned to such term in Section 1.03(a).



          “Responsible Officer” of any person shall mean any executive officer or Financial Officer of
such person and any other officer or similar official thereof responsible for the administration of
the obligations of such person in respect of this Agreement.



          “Restatement Effective Date” shall mean the date on which the conditions specified in Section
4.01 are satisfied (or waived by the Required Restatement Lenders).



          “Restatement Effective Date Ancillary Facility” shall mean each Ancillary Facility made
available on the Restatement Effective Date and set forth on Schedule 1.01(c).



          “Restatement Effective Date Foreign Subsidiary Borrower Agreement” shall mean a Foreign
Subsidiary Borrower Agreement listed on Schedule 1.01(i) entered into by Foreign Subsidiary
Borrowers listed on such schedule on or prior to the Restatement Effective Date.



          “Restatement Transactions” shall mean the execution and delivery of this Agreement by each
Person party thereto, the satisfaction of the conditions to the effectiveness thereof and the
consummation of the transactions contemplated thereby.



          “Revolving Borrowing” shall mean a Borrowing comprised of Revolving Loans.



          “Revolving Credit Commitment” shall mean a Global Revolving Facility Commitment or a U.S.
Revolving Facility Commitment.



          “Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the sum at
such time, without duplication, of (a) such Lender’s Global









 



49



Revolving Facility Credit Exposure and (b) such Lender’s U.S. Revolving Facility Credit
Exposure.



          “Revolving Credit Lender” shall mean a Lender with a Revolving Credit Commitment.



          “Revolving Credit Maturity Date” shall mean May 9, 2012.



          “Revolving Facility Lenders” shall mean the Global Revolving Facility Lenders and the U.S.
Revolving Facility Lenders.



          “Revolving L/C Exposure” shall mean at any time the sum of (a) the aggregate undrawn amount of
all Letters of Credit denominated in Dollars outstanding at such time, (b) the Dollar Equivalent of
the aggregate undrawn amount of all Letters of Credit denominated in a Foreign Currency outstanding
at such time, (c) the aggregate principal amount of all L/C Disbursements (i) made in Dollars that
have not yet been reimbursed at such time or (ii) made in a Foreign Currency and converted into
Dollars pursuant to Section 2.05(e) or 2.05(k) and (d) the Dollar Equivalent of the aggregate
principal amount of all L/C Disbursements made in a Foreign Currency that have not yet been
reimbursed or converted into Dollars pursuant to Section 2.05(e) or 2.05(k). The Revolving L/C
Exposure of any U.S. Revolving Facility Lender at any time shall mean its U.S. Revolving Facility
Percentage of the aggregate Revolving L/C Exposure at such time.



          “Revolving Loans” shall mean Global Revolving Facility Loans and U.S. Revolving Facility
Loans.



          “Sale and Lease-Back Transaction” shall have the meaning assigned to such term in Section
6.03.



          “S&P” shall mean Standard & Poor’s Ratings Group, Inc.



          “SEC” shall mean the Securities and Exchange Commission or any successor thereto.



          “Second Amendment and Restatement Agreement” shall have the meaning assigned to such term in
the preamble to this Agreement.



          “Second Restatement Effective Date” shall mean January 9, 2004.



          “Secured Parties” shall mean the “Secured Parties” as defined in the U.S. Collateral
Agreement.



          “Securities Act” shall have the meaning assigned to such term in the preamble to this
Agreement.



          “Security Documents” shall mean the Mortgages, the U.S. Collateral Agreement, the Foreign
Pledge Agreements, the Foreign Security Agreements, the Foreign Guarantee, the Finco Guarantee, the
Reaffirmation Agreement and each of the









 



50



security agreements, mortgages and other instruments and documents executed and delivered
pursuant to any of the foregoing or pursuant to Section 5.10.



          “Senior Note Documents” shall mean the Senior Notes and the Senior Note Indentures.



          “Senior Note Indentures” shall mean the Indentures dated as of February 18, 2003, among the
U.S. Borrower, the Subsidiaries party thereto and the trustee named therein from time to time, as
in effect on the Closing Date and as amended, restated, supplemented or otherwise modified from
time to time in accordance with the requirements thereof and of this Agreement.



          “Senior Notes” shall mean the U.S. Borrower’s 9.375% Senior Notes due 2013 and 10.125% Senior
Notes due 2013, in each case issued pursuant to the Senior Note Indentures and any notes issued by
the U.S. Borrower in exchange for, and as contemplated by, the Senior Notes with substantially
identical terms as the Senior Notes.



          “Senior Subordinated Note Documents” shall mean the Senior Subordinated Notes and the Senior
Subordinated Note Indentures.



          “Senior Subordinated Note Indentures” shall mean the Indentures dated as of February 18, 2003,
among the U.S. Borrower, the Subsidiaries party thereto and the trustee named therein from time to
time, as in effect on the Closing Date and as amended, restated, supplemented or otherwise modified
from time to time in accordance with the requirements thereof and of this Agreement.



          “Senior Subordinated Notes” shall mean the U.S. Borrower’s 11% Senior Subordinated Notes due
2013 and 11.75% Senior Subordinated Notes due 2013, in each case issued pursuant to the Senior
Subordinated Note Indentures and any notes issued by the U.S. Borrower in exchange for, and as
contemplated by, the Senior Subordinated Notes with substantially identical terms as the Senior
Subordinated Notes.



          “Statutory Reserves” shall mean, 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 other similar percentages (expressed as
a decimal) established by any Governmental Authority of the United States of America or of the
jurisdiction of such currency or any jurisdiction in which Loans in such currency are made to which
banks in such jurisdiction are subject for any category of deposits or liabilities customarily used
to fund loans in such currency or by reference to which interest rates applicable to Loans in such
currency are determined.



          “Sterling” or “£” shall mean the lawful money of the United Kingdom.



          “Stock Consideration” shall have the meaning assigned to such term in the preamble to this Agreement.









 



51


          “Stockholders Agreement” shall mean the Stockholders Agreement dated as of February 28, 2003, among the Fund and Northrop Grumman Corporation, as amended, restated, supplemented or otherwise modified from time to time in accordance with the requirements thereof and of this Agreement.



          “Stock Purchases” shall have the meaning assigned to such term in the preamble to this Agreement.



          “Subordinated Intercompany Debt” shall have the meaning assigned to such term in Section 6.01(d).



          “subsidiary” shall mean, with respect to any person (herein referred to as the “parent”), any corporation, partnership, association or other business 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 more than 50% of the
general partnership interests are, at the time any determination is being made, directly or indirectly, owned, Controlled or held, or (b) that is, at the time any determination is made, 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” shall mean a subsidiary of the U.S. Borrower.



          “Subsidiary Loan Party” shall mean each Subsidiary that is (a) a Domestic Subsidiary Loan Party or (b) a Foreign Subsidiary Loan Party.



          “Swap Agreement” shall mean any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing
risk or value or any similar transaction or any combination of these transactions, provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the U.S. Borrower or a Subsidiary shall be a Swap Agreement.



          “Swingline Borrowing Request” shall mean a request by a Borrower substantially in the form of Exhibit C-2.



          “Swingline Dollar Borrowing” shall mean a Borrowing comprised of Swingline Dollar Loans.



          “Swingline Dollar Commitment” shall mean, with respect to each Swingline Dollar Lender, the commitment of such Swingline Dollar Lender to make Swingline Dollar Loans pursuant to Section 2.04. The amount of each Swingline Dollar Lender’s Swingline Dollar Commitment on the Restatement Effective Date is set forth on Schedule 2.04(a). The aggregate amount of the
Swingline Dollar Commitments on the Restatement Effective Date is $100,000,000.









 



52


          “Swingline Dollar Exposure” shall mean at any time the aggregate principal amount of all outstanding Swingline Dollar Borrowings at such time. The Swingline Dollar Exposure of any U.S. Revolving Facility Lender at any time shall mean its U.S. Revolving Facility Percentage of the aggregate Swingline Dollar Exposure at such time.



          “Swingline Dollar Lender” shall mean a Lender with a Swingline Dollar Commitment or outstanding Swingline Dollar Loans.



          “Swingline Dollar Loans” shall mean the swingline loans denominated in Dollars and made to the U.S. Borrower pursuant to Section 2.04.



          “Swingline Exposure” shall mean at any time the sum of the Swingline Dollar Exposure and the Swingline Foreign Currency Exposure.



          “Swingline Foreign Currency Borrowing” shall mean a Borrowing comprised of Swingline Foreign Currency Loans.



          “Swingline Foreign Currency Commitment” shall mean, with respect to each Swingline Foreign Currency Lender, the commitment of such Swingline Foreign Currency Lender to make Swingline Foreign Currency Loans pursuant to Section 2.04. The amount of each Swingline Foreign Currency Lender’s Swingline Foreign Currency Commitment on the Restatement Effective Date is set
forth on Schedule 2.04(b). The aggregate amount of the Swingline Foreign Currency Commitments on the Restatement Effective Date is $75,000,000.



          “Swingline Foreign Currency Exposure” shall mean at any time the Dollar Equivalent of the aggregate principal amount of all outstanding Swingline Foreign Currency Loans at such time. The Swingline Foreign Currency Exposure of any Global Revolving Facility Lender at any time shall mean its ratable share (based on Available Unused Commitments) of the
aggregate Swingline Foreign Currency Exposure at such time.



          “Swingline Foreign Currency Lender” shall mean a Lender with a Swingline Foreign Currency Commitment or outstanding Swingline Foreign Currency Loans.



          “Swingline Foreign Currency Loans” shall mean the swingline loans denominated in a Foreign Currency and made to a Foreign Subsidiary Borrower pursuant to Section 2.04.



          “Swingline Foreign Currency Rate” shall mean with respect to any Swingline Foreign Currency Borrowing, for any Interest Period, the interest rate per annum at which deposits in the currency of such Swingline Foreign Currency Borrowing are offered for such Interest Period to major banks in the London interbank market by JPMorgan Chase Bank, N.A., on the Quotation Day.









 



53


           “Swingline Lender” shall mean (i) the Swingline Dollar Lenders, in their respective capacities as Lenders of Swingline Dollar Loans, and (ii) the Swingline Foreign Currency Lenders, in their respective capacities as Lenders of Swingline Foreign Currency Loans.



          “Swingline Loans” shall mean the Swingline Dollar Loans and the Swingline Foreign Currency Loans.



          “Syndication Agent” shall have the meaning assigned to such term in the introductory paragraph to this Agreement.



          “Taxes” shall mean any and all present or future taxes, levies, imposts, duties (including stamp duties), deductions, charges (including ad valorem charges) or withholdings imposed by any Governmental Authority.



          “Term Borrowing” shall mean a Borrowing comprised of Term Loans.



          “Term Loans” shall mean the Tranche A-1 Term Loans and the Tranche B-1 Term Loans. Each Tranche A-1 Term Loan and each Tranche B-1 Term Loan shall be a Eurocurrency Term Loan or an ABR Term Loan.



          “Test Period” shall mean, on any date of determination, the period of four consecutive fiscal quarters of the U.S. Borrower then last ended (taken as one accounting period).



          “Third Amendment and Restatement Agreement” shall have the meaning assigned to such term in the preamble to this Agreement.



          “Total Revolving Credit Commitment” shall mean, at any time, the total Global Revolving Facility Commitments and the total U.S. Revolving Facility Commitments, as in effect at such time.



          “Tranche A Facility” shall mean the Tranche A Term Loans made or converted pursuant to the Fourth Amendment and Restatement Agreement.



          “Tranche A Term Borrowing” shall mean a Borrowing comprised of Tranche A Term Loans.



          “Tranche A Term Loans” shall mean the Tranche A Term Loans made by the Lenders to the U.S. Borrower or converted from Tranche A-1 Term Loans (as defined in the Fourth Amendment and Restatement Agreement) pursuant to the Fourth Amendment and Restatement Agreement.



          “Tranche A-1 Facility” shall mean the Tranche A-1 Term Loan Commitments and the Tranche A-1 Term Loans made hereunder.



          “Tranche A-1 Installment Date” shall have the meaning assigned to such term in Section 2.10(b).




 









 





54




     “Tranche A-1 Maturity Date” shall mean May 9, 2013.



     “Tranche A-1 Term Borrowing” shall mean a Borrowing comprised of Tranche A-1 Term Loans.



     “Tranche A-1 Term Loan Commitment” shall mean, with respect to each Lender, the agreement of
such Lender to make Tranche A-1 Term Loans as set forth in Section 2.01. The aggregate amount of
the Tranche A-1 Term Loan Commitments on the date hereof is $600,000,000.



     “Tranche A-1 Term Loans” shall mean the Tranche A-1 Term Loans made by the Lenders to the U.S.
Borrower pursuant to Section 2.01.



     “Tranche A-1 Term Borrowing” shall mean a Borrowing comprised of Tranche A-1 Term Loans.



     “Tranche B Facility” shall mean the Tranche B Term Loans made or converted pursuant to the
Fourth Amendment and Restatement Agreement.



     “Tranche B Term Borrowing” shall mean a Borrowing comprised of Tranche B Term Loans.



     “Tranche B Term Loans” shall mean the Tranche B Term Loans made by the Lenders to the U.S.
Borrower or converted from Tranche D-1 Term Loans (as defined in the Fourth Amendment and
Restatement Agreement) pursuant to the Fourth Amendment and Restatement Agreement.



     “Tranche B-1 Facility” shall mean the Tranche B Term Loan Commitments and the Tranche B-1 Term
Loans made hereunder.



     “Tranche B-1 Installment Date” shall have the meaning assigned to such term in Section
2.10(d).



     “Tranche B-1 Maturity Date” shall mean February 9, 2014.



     “Tranche B-1 Term Borrowing” shall mean a Borrowing comprised of Tranche B-1 Term Loans.



     “Tranche B-1 Term Loan Commitment” shall mean, with respect to each Lender, the agreement of
such Lender to make Tranche B-1 Term Loans as set forth in Section 2.01. The aggregate amount of
the Tranche B-1 Term Loan Commitments on the date hereof is $500,000,000.



     “Tranche B-1 Term Loans” shall mean the Tranche B Term Loans converted from Tranche B Term
Loans, Tranche B-2 Term Loans and/or Tranche E Term Loans or made by the Lenders to the U.S.
Borrower pursuant to Section 2.01.



     “Tranche B-2 Facility” shall mean the Tranche B-2 Term Loans made pursuant to the Tranche B-2
Facility Amendment.









 



55


     “Tranche B-2 Term Borrowing” shall mean a Borrowing comprised of Tranche B-2 Term Loans.



     “Tranche B-2 Term Loans” shall mean the loans made pursuant to Section 2 of the Tranche B-2
Facility Amendment.



     “Tranche E Facility” shall mean the Tranche E Term Loans made pursuant to the Third Amendment
and Restatement Agreement.



     “Tranche E Term Borrowing” shall mean a Borrowing comprised of Tranche E Term Loans.



     “Tranche E Term Loans” shall mean the Tranche E Term Loans made by the Lenders to the U.S.
Borrower pursuant to the Third Amendment and Restatement Agreement.



     “Transaction Costs” shall have the meaning given such term in the preamble to this Agreement.



     “Transactions” shall mean all the transactions described in the preamble to, or otherwise
contemplated by, this Agreement or the Purchase Agreement.



     “Transferor” shall mean TRW Automotive Receivables, LLC, a Delaware limited liability company.



     “Type”, when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to
which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes
hereof, the term “Rate” shall include the Adjusted LIBO Rate, the Alternate Base Rate and the
Swingline Foreign Currency Rate.



     “Unfunded Ancillary Credit Extension” shall mean, at any time, an extension of credit under an
Ancillary Facility in respect of which the applicable Ancillary Lender has not previously advanced
funds to, or on behalf of, the Foreign Subsidiary Borrower but in respect of which such Ancillary
Lender remains obligated so to advance funds.



     “Unrestricted Cash” shall mean cash and cash equivalents of any of the U.S. Borrower and its
consolidated Subsidiaries that would not appear as “restricted” on a consolidated balance sheet of
any of the U.S. Borrower and its consolidated Subsidiaries.



     “Unsecured Ancillary Facility” shall mean any Ancillary Facility made available, as set forth
herein, to any Foreign Subsidiary Borrower that is not a Loan Party. The Dollar Equivalent
aggregate principal amount of all Unsecured Ancillary Facilities at any time shall not exceed
$30,000,000.



     “U.S. Borrower” shall have the meaning assigned to such term in the introductory paragraph of
this Agreement, provided that unless the context requires otherwise, if the U.S. Borrower merges
with Intermediate Holdings (or the surviving









 



56



entity of any merger of Holdings or Intermediate Holdings) pursuant to Section 6.05(b), the
surviving entity in such merger shall be deemed to be the U.S. Borrower for all purposes under this
Agreement and all terms and conditions applicable to Intermediate Holdings or Holdings, as
applicable, shall cease to be in force and effect.



     “U.S. Collateral Agreement” shall mean the U.S. Guarantee and Collateral Agreement, as
amended, supplemented or otherwise modified from time to time, in the form of Exhibit E, among
Holdings, Intermediate Holdings, the U.S. Borrower, each Domestic Subsidiary Loan Party and the
Collateral Agent.



     “U.S. Lending Office” shall mean, as to any Lender, the applicable branch, office or Affiliate
of such Lender designated by such Lender to make Loans in Dollars.



     “U.S. Mortgages” shall mean the mortgages, deeds of trust, assignments of leases and rents and
other security documents delivered on the Closing Date, as amended, supplemented or otherwise
modified from time to time, with respect to Mortgaged Properties located in the United States of
America or pursuant to Section 5.10, each substantially in the form of Exhibit D.



     “U.S. Perfection Certificate” shall mean a certificate in the form of Annex I to the U.S.
Collateral Agreement or any other form approved by the Collateral Agent.



     “U.S. Receivables Purchase Agreement” shall mean (a) the Receivables Purchase Agreement dated
as of February 28, 2003, among the Receivables Subsidiary, Transferor, the U.S. Borrower and the
Subsidiaries party thereto, related to the Permitted Receivables Financing, as it may be amended,
supplemented or otherwise modified to the extent permitted by Section 6.09 and (b) any agreement
replacing such agreement, provided that such replacing agreement contains terms that are
substantially similar to the agreement being replaced and that are otherwise no more adverse in any
material respect to the Lenders than the applicable terms of the agreement being replaced.



     “U.S. Revolving Facility” shall mean the U.S. Revolving Facility Commitments and the
extensions of credit made thereunder by the U.S. Revolving Facility Lenders.



     “U.S. Revolving Facility Borrowing” shall mean a Borrowing comprised of U.S. Revolving
Facility Loans.



     “U.S. Revolving Facility Commitment” shall mean, with respect to each U.S. Revolving Facility
Lender, the commitment of such U.S. Revolving Facility Lender to make U.S. Revolving Facility Loans
at or after the Effective Funding Time pursuant to Section 2.01, expressed as an amount
representing the maximum aggregate permitted amount of such Lender’s U.S. Revolving Facility Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section
2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The amount of each U.S. Revolving Facility Lender’s U.S. Revolving
Facility Commitment on the date hereof is set forth on Schedule 2.01, or in the









 



57



Assignment and Acceptance pursuant to which such U.S. Revolving Facility Lender shall have
assumed its U.S. Revolving Facility Commitment, as applicable. The aggregate amount of the U.S.
Revolving Facility Commitments on the date hereof is $700,000,000.



     “U.S. Revolving Facility Credit Exposure” shall mean, at any time, the sum of (a) the
aggregate principal amount of the U.S. Revolving Facility Loans outstanding at such time, (b) the
Swingline Dollar Exposure at such time and (c) the Revolving L/C Exposure at such time. The U.S.
Revolving Facility Credit Exposure of any Lender at any time at and after the Effective Funding
Time shall be such Lender’s U.S. Revolving Facility Percentage of the U.S. Revolving Facility
Credit Exposure at such time.



     “U.S. Revolving Facility Lender” shall mean a Lender with a U.S. Revolving Facility Commitment
or with outstanding U.S. Revolving Facility Loans.



     “U.S. Revolving Facility Loan” shall mean a Loan made by a U.S. Revolving Facility Lender in
respect of a U.S. Revolving Facility Commitment pursuant to Section 2.01. Each U.S. Revolving
Facility Loan shall be a Eurocurrency Loan or an ABR Loan.



     “U.S. Revolving Facility Percentage” shall mean, with respect to any U.S. Revolving Facility
Lender, the percentage of the total U.S. Revolving Facility Commitments represented by such
Lender’s U.S. Revolving Facility Commitment. If the U.S. Revolving Facility Commitments have
terminated or expired, the U.S. Revolving Facility Percentages shall be determined based upon the
U.S. Revolving Facility Commitments most recently in effect, giving effect to any assignments
pursuant to Section 9.04.



     “Wholly Owned Subsidiary” of any person means a subsidiary of such person, all of the Equity
Interests of which (other than directors’ qualifying shares or nominee or other similar shares
required pursuant to applicable law) are owned by such person or another Wholly Owned Subsidiary of
such person. Unless the context otherwise indicates, all references herein to a “Wholly Owned
Subsidiary” are references to a Wholly Owned Subsidiary of the U.S. Borrower.



     “Withdrawal Liability” shall mean 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.



     “Working Capital” shall mean, with respect to the U.S. Borrower and the Subsidiaries on a
consolidated basis at any date of determination, Current Assets at such date of determination minus
Current Liabilities at such date of determination; provided that, for purposes of calculating
Excess Cash Flow, increases or decreases in Working Capital shall be calculated without regard to
any changes in Current Assets or Current Liabilities as a result of (a) any reclassification in
accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent or (b)
the effects of purchase accounting.









 



58


     SECTION 1.02. Terms Generally. (a) The definitions set forth or referred to in Section 1.01
shall apply equally to both 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”. All references herein to Articles, Sections, Exhibits and Schedules
shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this
Agreement unless the context shall otherwise require. Except as otherwise expressly provided
herein, any reference in this Agreement to any Loan Document shall mean such document as amended,
restated, supplemented or otherwise modified from time to time. 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 U.S. Borrower notifies the
Administrative Agent that the U.S. Borrower requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the Closing Date in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent notifies the U.S.
Borrower that the Required Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith. For the purposes of determining
compliance with Section 6.01 through Section 6.10 with respect to any amount in a currency other
than Dollars, amounts shall be deemed to equal the Dollar Equivalent thereof determined using the
Exchange Rate calculated as of the Business Day on which such amounts were incurred or expended, as
applicable.




     (b) All section references in this Agreement that relate to time periods prior to the
Restatement Effective Date shall be deemed to be references to such sections in the
Existing Credit Agreement.



     SECTION 1.03. Exchange Rates. (a) Not later than 1:00 p.m., New York City time, on each
Calculation Date, the Administrative Agent shall (i) determine the Exchange Rate as of such
Calculation Date and (ii) give notice thereof to the Borrowers. The Exchange Rates so determined
shall become effective on the first Business Day immediately following the relevant Calculation
Date (a “Reset Date”) or other date of determination, shall remain effective until the next
succeeding Reset Date, and shall for all purposes of this Agreement (other than any other provision
expressly requiring the use of an Exchange Rate calculated as of a specified date) be the Exchange
Rates employed in converting any amounts between Dollars and each of the Foreign Currencies.



     (b) Not later than 5:00 p.m., New York City time, on each Reset Date, the Administrative
Agent shall (i) determine the aggregate amount of the Dollar Equivalents of the principal amounts
of the Loans denominated in Foreign Currencies then outstanding (after giving effect to any Loans
denominated in Foreign Currencies made or repaid on such date) and the Revolving L/C Exposure and
(ii) notify the Lenders, each Issuing Bank and the Borrowers of the results of such determination.









 



59


     SECTION 1.04. Redenomination of Certain Foreign Currencies. (a) Each obligation of any
party to this Agreement to make a payment denominated in the national currency unit of any member
state of the European Union that adopts the Euro as its lawful currency after the Closing Date
shall be redenominated into Euro at the time of such adoption (in accordance with the EMU
Legislation). If, in relation to the currency of any such member state, the basis of accrual of
interest expressed in this Agreement in respect of that currency shall be inconsistent with any
convention or practice in the London Interbank Market for the basis of accrual of interest in
respect of the Euro, such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful currency; provided
that if any Borrowing in the currency of such member state is outstanding immediately prior to such
date, such replacement shall take effect, with respect to such Borrowing, at the end of the then
current Interest Period.



     (b) Without prejudice and in addition to any method of conversion or rounding prescribed by
any EMU Legislation and (i) without limiting the liability of any Borrower for any amount due under
this Agreement and (ii) without increasing any Commitment of any Lender, all references in this
Agreement to minimum amounts (or integral multiples thereof) denominated in the national currency
unit of any member state of the European Union that adopts the Euro as its lawful currency after
the Closing Date shall, immediately upon such adoption, be replaced by references to such minimum
amounts (or integral multiples thereof) as shall be specified herein with respect to Borrowings
denominated in Euros.



     (c) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to reflect
the adoption of the Euro by any member state of the European Union and any relevant market
conventions or practices relating to the Euro.



     SECTION 1.05. Effectuation of Transfers. Each of the representations and warranties of
Holdings, Intermediate Holdings and the Borrowers contained in this Agreement (and all
corresponding definitions) are made after giving effect to the Restatement Transactions, unless the
context otherwise requires.



ARTICLE II




The Credits




     SECTION 2.01. Commitments. (a) Subject to the terms and conditions set forth herein, each
Lender agrees (i) to make (A) Global Revolving Facility Loans denominated in Dollars or Foreign
Currencies to the U.S. Borrower from its U.S. Lending Office or Global Lending Office, as
applicable, and (B) Global Revolving Facility Loans denominated (1) in Dollars to Foreign
Subsidiary Borrowers from its U.S. Lending Office or Global Lending Office (as requested by the
applicable Borrower) or (2) in Foreign Currencies to Foreign Subsidiary Borrowers from its Global
Lending Office, in the case of clauses (A) and (B) from time to time during the Availability Period
in an aggregate









 



60

principal amount that will not result in (1) such Lender’s Global Revolving Facility Credit
Exposure exceeding (x) such Lender’s Global Revolving Facility Commitment minus (y) such Lender’s
Ancillary Commitment or (2) the Global Revolving Facility Credit Exposure exceeding (x) the total
Global Revolving Facility Commitments minus (y) the total Ancillary Commitments, and (ii) to make
U.S. Revolving Facility Loans denominated in Dollars to the U.S. Borrower from its U.S. Lending
Office from time to time during the Availability Period in an aggregate principal amount that will
not result in (A) such Lender’s U.S. Revolving Facility Credit Exposure exceeding such Lender’s
U.S. Revolving Facility Commitment or (B) the U.S. Revolving Facility Credit Exposure exceeding the
total U.S. Revolving Facility Commitments. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans.




     (b) Subject to the terms and conditions set forth herein, at the Effective Funding Time (i)
each Lender agrees to make Tranche A-1 Term Loans to the U.S. Borrower in a principal amount equal
to the Tranche A-1 Term Loan Commitment of such Lender and (ii) each Lender agrees to make Tranche
B-1 Term Loans to the U.S. Borrower in a principal amount equal to the Tranche B-1 Term Loan
Commitment of such Lender.



     (c) At the Effective Funding Time, all Tranche A Term Loans, Tranche B Term Loans, Tranche
B-2 Term Loans, Tranche E Term Loans and Existing Revolving Loans will be repaid and the
Commitments (as defined in the Existing Credit Agreement) shall be terminated.



     (d) Amounts repaid in respect of Term Loans may not be reborrowed.



     SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as part of a Borrowing
consisting of Loans under the same Facility and of the same Type made by the Lenders ratably in
accordance with their respective Commitments under the applicable Facility (or, in the case of
Swingline Loans, in accordance with their respective Swingline Dollar Commitments or Swingline
Foreign Currency Commitments, as applicable); provided, however, that Global Revolving Facility
Loans under the Global Revolving Facility shall be made by the Global Revolving Facility Lenders
ratably in accordance with their respective Available Unused Commitments on the date such Loans are
made hereunder. 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, (i) each Borrowing denominated in Dollars and made from a U.S.
Lending Office (other than a Swingline Dollar Borrowing) shall be comprised entirely of ABR Loans
or Eurocurrency Loans as the applicable Borrower may request in accordance herewith and (ii) each
Borrowing denominated in a Foreign Currency (other than a Swingline Foreign Currency Borrowing) and
each Borrowing denominated in Dollars and made from a Global Lending Office shall be comprised
entirely of Eurocurrency Loans. Each Swingline Dollar Borrowing shall be an ABR









 



61



Borrowing. Each Swingline Foreign Currency Borrowing shall be comprised entirely of Swingline
Foreign Currency Loans. Each Lender at its option may make any ABR Loan or 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 affect the obligation of the applicable Borrower to repay
such Loan in accordance with the terms of this Agreement and such Lender shall not be entitled to
any amounts payable under Section 2.15, 2.17 or 2.21 solely in respect of increased costs resulting
from such exercise.



     (c) At the commencement of each Interest Period for any Eurocurrency Revolving Borrowing,
such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing
Multiple and not less than the Borrowing Minimum; provided that a Eurocurrency Revolving Borrowing
that is an Ancillary Replacement Borrowing shall be permitted to be in an amount necessary to
finance Ancillary Credit Extensions under an Ancillary Facility being terminated pursuant to
Section 2.22(e). At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in
an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the
Borrowing Minimum; provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the U.S. Revolving Facility Commitments or that is required
to finance the reimbursement of an L/C Disbursement as contemplated by Section 2.05(e). Each
Swingline Dollar Borrowing and Swingline Foreign Currency Borrowing shall be in an amount that is
an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum. Borrowings
of more than one Type and under more than one Facility may be outstanding at the same time;
provided that there shall not at any time be more than a total of (i) 10 Eurocurrency Borrowings
outstanding under each of the Tranche A-1 Facility and the Tranche B-1 Facility and (ii) 35
Eurocurrency Borrowings outstanding under each of the Global Revolving Facility and the U.S.
Revolving Facility (not including Ancillary Replacement Borrowings).



     (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 Revolving Credit Maturity Date, Tranche A-1 Maturity Date or
Tranche B-1 Maturity Date, as applicable.



     SECTION 2.03. Requests for Borrowings. Except in the case of an Ancillary Replacement
Borrowing (which shall be governed by Section 2.22(e)) or a Swingline Borrowing (which shall be
governed by Section 2.04), to request a Borrowing, the applicable Borrower shall notify the
Applicable Agent of such request by telephone (a) in the case of a Eurocurrency Borrowing, not
later than 2:00 p.m., Local Time, three Business Days before the date of the proposed Borrowing or
(b) in the case of an ABR Borrowing, not later than 2:00 p.m., Local Time, one 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 L/C Disbursement as contemplated by Section 2.05(e) may be given
not later than 10:00 a.m., Local 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 Applicable Agent of a written









 



62



Borrowing Request in a form approved by the Applicable Agent and signed by the applicable
Borrower. Each such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:




     (i) the Borrower requesting such Borrowing;




     (ii) whether the requested Borrowing is to be a Global Revolving Facility
Borrowing, a U.S. Revolving Facility Borrowing, a Tranche A-1 Term Borrowing or a
Tranche B-1 Term Borrowing;




     (iii) in the case of a Global Revolving Facility Borrowing, the Currency in
which such Borrowing is to be denominated;




     (iv) the aggregate amount of the requested Borrowing (expressed in Dollars or
the applicable Foreign Currency);




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




     (vi) in the case of a Borrowing denominated in Dollars and requested to be
made from a U.S. Lending Office, whether such Borrowing is to be an ABR Borrowing
or a Eurocurrency Borrowing;




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




     (viii) the location and number of the applicable Borrower’s account to which
funds are to be disbursed.


If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing, unless such Borrowing is a Global Revolving Facility Borrowing denominated in a
Foreign Currency, in which case such Global Revolving Facility Borrowing shall be a Eurocurrency
Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency
Borrowing, then the applicable 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 Applicable 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. Swingline Loans. (a) Subject to the terms and conditions set forth herein,
(i) each Swingline Dollar Lender agrees to make Swingline Dollar Loans to the U.S. Borrower from
time to time during the Availability Period, in an aggregate principal amount at any time
outstanding that will not result in (x) the aggregate principal amount of outstanding Swingline
Dollar Loans made by such Swingline Dollar Lender exceeding such Swingline Dollar Lender’s
Swingline Dollar Commitment or (y) the U.S. Revolving Facility Credit Exposure exceeding the U.S.
Revolving Facility Commitments and (ii) each Swingline Foreign Currency Lender agrees to make
Swingline Foreign Currency Loans to the Foreign Subsidiary Borrowers from time to time during the









 



63



Availability Period, in an aggregate principal amount at any time outstanding that will not
result in (x) the Dollar Equivalent of the aggregate principal amount of outstanding Swingline
Foreign Currency Loans made by such Swingline Foreign Currency Lender exceeding such Swingline
Foreign Currency Lender’s Swingline Foreign Currency Commitment or (y) the sum of the Global
Revolving Facility Credit Exposure and the total Ancillary Commitments exceeding the total Global
Revolving Facility Commitments; provided that no Swingline Lender shall be required to make a
Swingline Loan to refinance an outstanding Swingline Dollar Borrowing or Swingline Foreign Currency
Borrowing. Within the foregoing limits and subject to the terms and conditions set forth herein,
the Borrowers may borrow, prepay and reborrow Swingline Loans.



     (b) To request a Swingline Dollar Borrowing or Swingline Foreign Currency Borrowing, the
applicable Borrower shall notify the Applicable Agent of such request by telephone (confirmed by a
Swingline Borrowing Request by telecopy), not later than 1:00 p.m., Local Time, on the day of a
proposed Swingline Dollar Borrowing or Swingline Foreign Currency Borrowing. Each such notice and
Swingline Borrowing Request shall be irrevocable and shall specify (i) in the case of a Swingline
Foreign Currency Borrowing, the Borrower requesting such Borrowing, (ii) the requested date (which
shall be a Business Day), (iii) in the case of a Swingline Foreign Currency Borrowing, the Foreign
Currency in which such Swingline Foreign Currency Borrowing is to be denominated, (iv) the amount
of the requested Swingline Dollar Borrowing (expressed in Dollars) or Swingline Foreign Currency
Borrowing (expressed in the applicable Foreign Currency), as applicable, and (v) in the case of a
Swingline Foreign Currency Borrowing, the Interest Period to be applicable thereto, which shall be
a period contemplated by clause (b) of the definition of the term “Interest Period”. The
Applicable Agent shall promptly advise each Swingline Dollar Lender (in the case of a notice
relating to a Swingline Dollar Borrowing) or each Swingline Foreign Currency Lender (in the case of
a notice relating to a Swingline Foreign Currency Borrowing) of any such notice received from a
Borrower and the amount of such Swingline Lender’s Swingline Loan to be made as part of the
requested Swingline Dollar Borrowing or Swingline Foreign Currency Borrowing, as applicable. Each
Swingline Dollar Lender shall make each Swingline Dollar Loan to be made by it hereunder in
accordance with Section 2.02(a) on the proposed date thereof by wire transfer of immediately
available funds by 3:00 p.m., Local Time, to the account of the Applicable Agent most recently
designated by it for such purpose by notice to the Swingline Dollar Lenders. The Applicable Agent
will make such Swingline Dollar Loans available to the U.S. Borrower by promptly crediting the
amounts so received, in like funds, to the general deposit account of the U.S. Borrower with the
Applicable Agent (or, in the case of a Swingline Dollar Borrowing made to finance the reimbursement
of an L/C Disbursement as provided in Section 2.05(e), by remittance to the applicable Issuing
Bank). Each Swingline Foreign Currency Lender shall make each Swingline Foreign Currency Loan to
be made by it hereunder in accordance with Section 2.02(a) on the proposed date thereof by wire
transfer of immediately available funds by 3:00 p.m., Local Time, to the account of the Applicable
Agent most recently designated by it for such purpose by notice to the Swingline Foreign Currency
Lenders. The Applicable Agent will make such Swingline Foreign Currency Loans available to the
applicable Foreign Subsidiary Borrower by (i) promptly crediting the amounts so received, in like
funds, to the general









 



64



deposit account with the Applicable Agent of the applicable Foreign Subsidiary Borrower most
recently designated to the Applicable Agent or (ii) by wire transfer of the amounts received in
immediately available funds to the general deposit account of the applicable Foreign Subsidiary
Borrower most recently designated to the Applicable Agent.



     (c) A Swingline Lender may by written notice given to the Applicable Agent (and to the other
Swingline Dollar Lenders or Swingline Foreign Currency Lenders, as applicable) not later than 10:00
a.m., Local Time, on any Business Day require (i) in the case of a Swingline Dollar Lender, the
U.S. Revolving Facility Lenders to acquire participations on such Business Day in all or a portion
of the outstanding Swingline Dollar Loans made by it or (ii) in the case of a Swingline Foreign
Currency Lender, the Global Revolving Facility Lenders to acquire participations on such Business
Day in all or a portion of the outstanding Swingline Foreign Currency Loans made by it. Such
notice shall specify the aggregate amount of such Swingline Loans in which the U.S. Revolving
Facility Lenders or Global Revolving Facility Lenders, as applicable, will participate. Promptly
upon receipt of such notice, the Applicable Agent will give notice thereof to each such Lender,
specifying in such notice such Lender’s U.S. Revolving Facility Percentage or such Global Revolving
Facility Lender’s ratable share (based on Available Unused Commitments), as applicable, of such
Swingline Loan or Loans. Each U.S. Revolving Facility Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Applicable Agent, for the account
of the applicable Swingline Dollar Lender, such U.S. Revolving Facility Lender’s U.S. Revolving
Facility Percentage of such Swingline Dollar Loan or Loans. Each Global Revolving Facility Lender
hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to
the Applicable Agent, for the account of the applicable Swingline Foreign Currency Lender, such
Global Revolving Facility Lender’s ratable share (based on Available Unused Commitments) of such
Swingline Foreign Currency Loan or Loans. Each Global Revolving Facility Lender and each U.S.
Revolving Facility Lender acknowledges and agrees that its respective obligation to acquire
participations in Swingline Foreign Currency Loans and Swingline Dollar Loans, as applicable,
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 Revolving Credit Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available funds, in the same manner
as provided in Section 2.06 with respect to Loans made by such Revolving Credit Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Applicable
Agent shall promptly pay to the applicable Swingline Lender the amounts so received by it from the
Revolving Credit Lenders. The Applicable Agent shall notify the applicable Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph (c), and thereafter
payments in respect of such Swingline Loan shall be made to the Applicable Agent and not to the
applicable Swingline Lender. Any amounts received by a Swingline Lender from the applicable
Borrower (or other party on behalf of such Borrower) in respect of a Swingline Loan after receipt
by such Swingline Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Applicable Agent; any such amounts received by the Applicable Agent shall be
promptly









 



65



remitted by the Applicable Agent to the Revolving Credit Lenders that shall have made their
payments pursuant to this paragraph and to such Swingline Lender, as their interests may appear;
provided that any such payment so remitted shall be repaid to such Swingline Lender or to the
Applicable Agent, as applicable, if and to the extent such payment is required to be refunded to
the applicable Borrower for any reason. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the applicable Borrower of any default in the payment
thereof.



     SECTION 2.05. Letters of Credit. (a) General. Subject to the terms and conditions set
forth herein, each Borrower may request the issuance of Dollar Letters of Credit and Foreign
Currency Letters of Credit for its own account (or, in the case of the U.S. Borrower, for the
account of a Subsidiary, so long as the U.S. Borrower and such Subsidiary are co-applicants), in
each case in a form reasonably acceptable to the applicable Issuing Bank, at any time and from time
to time during the Availability Period and prior to the date that is five Business Days prior to
the Revolving Credit Maturity Date. 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 Applicant Party to, or entered into by the
Applicant Party with, an Issuing Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control. Each Letter of Credit (as defined in the Existing Credit Agreement)
outstanding at the Effective Funding Time shall remain outstanding as a Letter of Credit hereunder
on the terms set forth herein.



     (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the
issuance of a Letter of Credit (or the amendment, renewal (other than an automatic renewal in
accordance with paragraph (c) of this Section) or extension of an outstanding Letter of Credit),
the Applicant Party shall hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to the applicable
Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount
of such Letter of Credit, (subject to paragraph (n) of this Section) the currency in which such
Letter of Credit is to be denominated, the name and address of the beneficiary thereof and such
other information as shall be necessary to issue, amend, renew or extend such Letter of Credit. If
requested by the applicable Issuing Bank, the Applicant Party also shall submit a letter of credit
application on such Issuing Bank’s standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Applicant Party shall be
deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the Revolving L/C Exposure shall not exceed $400,000,000 and (ii) the U.S. Revolving
Facility Credit Exposure shall not exceed the total U.S. Revolving Facility Commitments.









 



66


     (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 Business Days prior to the Revolving Credit Maturity Date; provided that
any Letter of Credit with a one-year tenor may provide for the automatic renewal thereof for
additional one-year periods (which, in no event, shall extend beyond the date referred to in clause
(ii) of this paragraph (c)).



     (d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of
Credit increasing the amount thereof) and without any further action on the part of the applicable
Issuing Bank or the U.S. Revolving Facility Lenders, such Issuing Bank hereby grants to each U.S.
Revolving Facility Lender, and each U.S. Revolving Facility Lender hereby acquires from such
Issuing Bank, a participation in such Letter of Credit equal to such U.S. Revolving Facility
Lender’s U.S. Revolving Facility Percentage of the aggregate amount available to be drawn under
such Letter of Credit. In consideration and in furtherance of the foregoing, each U.S. Revolving
Facility Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent in
Dollars, for the account of the applicable Issuing Bank, such U.S. Revolving Facility Lender’s U.S.
Revolving Facility Percentage of (i) each L/C Disbursement made by such Issuing Bank in Dollars and
(ii) the Dollar Equivalent, determined using the Exchange Rates calculated as of the date such
payment is required, of each L/C Disbursement made by such Issuing Bank in a Foreign Currency and,
in each case, not reimbursed by the U.S. Borrower on the date due as provided in paragraph (e) of
this Section, or of any reimbursement payment required to be refunded to the U.S. Borrower for any
reason (or, if such reimbursement payment was refunded in a Foreign Currency, the Dollar Equivalent
thereof determined using the Exchange Rates calculated as of the date of such refund). Each U.S.
Revolving Facility 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 applicable Issuing Bank shall make any L/C Disbursement in respect
of a Letter of Credit, the U.S. Borrower shall reimburse such L/C Disbursement by paying to the
Administrative Agent an amount equal to such L/C Disbursement in Dollars or (subject to the
immediately succeeding sentence) the applicable Foreign Currency, not later than 5:00 p.m., New
York City time, on the Business Day immediately following the date the U.S. Borrower receives
notice under paragraph (g) of this Section of such L/C Disbursement, provided that in the case of
any L/C Disbursement made in Dollars with respect to a Letter of Credit issued for the account of
the U.S. Borrower, the U.S. Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.04 that such payment be financed with an ABR Revolving
Borrowing or a Swingline Dollar Borrowing, as applicable, in an equivalent amount and, to the
extent so financed, the U.S. Borrower’s obligation to make such payment shall be discharged and
replaced by the









 



67



resulting ABR Revolving Borrowing or Swingline Dollar Borrowing. If the U.S. Borrower fails
to reimburse any L/C Disbursement when due, then (i) if such payment relates to a Foreign Currency
Letter of Credit, automatically and with no further action required, the obligation to reimburse
the applicable L/C Disbursement shall be permanently converted into an obligation to reimburse the
Dollar Equivalent, determined using the Exchange Rates calculated as of the date when such payment
was due, of such L/C Disbursement and (ii) the Administrative Agent shall promptly notify the
applicable Issuing Bank and each other U.S. Revolving Facility Lender of the applicable L/C
Disbursement, the Dollar Equivalent thereof (if such L/C Disbursement relates to a Foreign Currency
Letter of Credit), the payment then due from the U.S. Borrower in respect thereof and, in the case
of a U.S. Revolving Facility Lender, such Lender’s U.S. Revolving Facility Percentage thereof.
Promptly following receipt of such notice, each U.S. Revolving Facility Lender shall pay to the
Administrative Agent in Dollars its U.S. Revolving Facility Percentage of the payment then due from
the U.S. Borrower (determined as provided in clause (i) of the immediately preceding sentence, if
such payment relates to a Foreign Currency Letter of Credit), in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the U.S. Revolving Facility Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing Bank in Dollars the amounts so
received by it from the U.S. Revolving Facility Lenders. Promptly following receipt by the
Administrative Agent of any payment from the U.S. Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent
that U.S. Revolving Facility Lenders have made payments pursuant to this paragraph to reimburse
such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear. Any
payment made by a U.S. Revolving Facility Lender pursuant to this paragraph to reimburse an Issuing
Bank for any L/C Disbursement (other than the funding of an ABR Revolving Loan or a Swingline
Dollar Borrowing as contemplated above) shall not constitute a Loan and shall not relieve the U.S.
Borrower of its obligation to reimburse such L/C Disbursement.



     (f) Obligations Absolute. The obligation of the U.S. Borrower to reimburse L/C 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
applicable 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 U.S. Borrower’s obligations hereunder. Neither the Administrative Agent, the
Lenders nor any Issuing Bank, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any









 



68



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 such Issuing Bank; provided that the
foregoing shall not be construed to excuse the applicable Issuing Bank from liability to an
Applicant Party to the extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by each Applicant Party to the extent permitted by applicable
law) suffered by such Applicant Party that are caused by (i) such 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 or (ii) such Issuing Bank’s refusal to issue a Letter of
Credit in accordance with the terms of this Agreement. The parties hereto expressly agree that, in
the absence of gross negligence or wilful misconduct on the part of the applicable Issuing Bank,
such Issuing Bank shall be deemed to have exercised care in each such determination and each
refusal to issue a Letter of Credit. 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 applicable
Issuing Bank may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or information to the
contrary, or refuse to accept and make payment upon such documents if such documents are not in
strict compliance with the terms of such Letter of Credit.



     (g) Disbursement Procedures. The applicable Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for payment under a Letter
of Credit. Such Issuing Bank shall promptly notify the Administrative Agent, the Applicant Party
and the U.S. Borrower (if the U.S. Borrower is not the Applicant Party) by telephone (confirmed by
telecopy) of such demand for payment and whether such Issuing Bank has made or will make a L/C
Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not
relieve the U.S. Borrower of its obligation to reimburse such Issuing Bank and the U.S. Revolving
Facility Lenders with respect to any such L/C Disbursement.



     (h) Interim Interest. If an Issuing Bank shall make any L/C Disbursement, then, unless the
U.S. Borrower shall reimburse such L/C Disbursement in full on the date such L/C Disbursement is
made, the unpaid amount thereof shall bear interest, for each day from and including the date such
L/C Disbursement is made to but excluding the date that the U.S. Borrower reimburses such L/C
Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that, if such
L/C Disbursement is not reimbursed by the U.S. Borrower when due pursuant to paragraph (e) of this
Section, then Section 2.13(d) shall apply; provided, further, that, in the case of a L/C
Disbursement made under a Foreign Currency Letter of Credit, the amount of interest due with
respect thereto shall (i) in the case of any L/C Disbursement that is reimbursed on or before the
date such L/C Disbursement is required to be reimbursed under paragraph (e) of this Section, (A) be
payable in the applicable Foreign Currency and (B) bear interest at a rate equal to the rate
reasonably determined by the applicable Issuing Bank to be the









 



69



cost to such Issuing Bank of funding such L/C Disbursement plus the Applicable Margin
applicable to Eurocurrency Revolving Loans at such time and (ii) in the case of any L/C
Disbursement that is reimbursed after the date such L/C Disbursement is required to be reimbursed
under paragraph (e) of this Section, (A) be payable in Dollars, (B) accrue interest on the Dollar
Equivalent, determined using the Exchange Rates calculated as of the date such L/C Disbursement was
made, of such L/C Disbursement, (C) bear interest at the rate per annum then applicable to ABR
Revolving Loans and (D) Section 2.13(d) shall apply. Interest accrued pursuant to this paragraph
shall be for the account of the applicable Issuing Bank, except that interest accrued on and after
the date of payment by any U.S. Revolving Facility Lender pursuant to paragraph (e) of this Section
to reimburse such Issuing Bank shall be for the account of such U.S. Revolving Facility Lender to
the extent of such payment.



     (i) Replacement of an Issuing Bank. An Issuing Bank may be replaced at any time by written
agreement among the U.S. Borrower, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of an Issuing Bank. At the time any such replacement shall become effective, the U.S. Borrower
shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.12. From and after the effective date of any such replacement, (i) the successor Issuing Bank
shall have all the rights and obligations of the replaced 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 such Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such replacement but shall not be required to
issue additional Letters of Credit.



     (j) Cash Collateralization. If any Event of Default shall occur and be continuing, (i) in
the case of an Event of Default described in Section 7.01(h) or (i), on the Business Day or (ii) in
the case of any other Event of Default, on the third Business Day, in each case, following the date
on which the U.S. Borrower receives notice from the Administrative Agent (or, if the maturity of
the Loans has been accelerated, U.S. Revolving Facility Lenders with Revolving L/C Exposure
representing greater than 50% of the total Revolving L/C Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, the U.S. Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders,
an amount in Dollars in cash equal to the Revolving L/C Exposure as of such date plus any accrued
and unpaid interest thereon; provided that (i) the portion of such amount attributable to undrawn
Foreign Currency Letters of Credit or L/C Disbursements in a Foreign Currency that the U.S.
Borrower is not late in reimbursing pursuant to Section 2.05(e) shall be deposited with the
Administrative Agent in the applicable Foreign Currencies in the actual amounts of such undrawn
Letters of Credit and L/C Disbursements and (ii) upon the occurrence of any Event of Default with
respect to a Borrower described in clause (h) or (i) of Section 7.01, the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall become









 



70



immediately due and payable in Dollars, without demand or other notice of any kind. The U.S.
Borrower also shall deposit cash collateral pursuant to this paragraph as and to the extent
required by Section 2.11(b). Each such deposit pursuant to this paragraph or pursuant to Section
2.11(b) shall be held by the Administrative Agent as collateral for the payment and performance of
the obligations of the U.S. Borrower under this Agreement. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which investments shall be made
at the option and sole discretion of (i) for so long as an Event of Default shall be continuing,
the Administrative Agent and (ii) at any other time, the U.S. Borrower, in each case, in Permitted
Investments and at the risk and expense of the U.S. Borrower, 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 each Issuing Bank
for L/C Disbursements for which such Issuing Bank has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of the U.S. Borrower
for the Revolving L/C Exposure at such time or, if the maturity of the Loans has been accelerated
(but subject to the consent of U.S. Revolving Facility Lenders with Revolving L/C Exposure
representing greater than 50% of the total Revolving L/C Exposure), be applied to satisfy other
obligations of the U.S. Borrower under this Agreement. If the U.S. Borrower 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 U.S. Borrower within three
Business Days after all Events of Default have been cured or waived. If the U.S. Borrower is
required to provide an amount of cash collateral hereunder pursuant to Section 2.11(b), such amount
(to the extent not applied as aforesaid) shall be returned to the U.S. Borrower as and to the
extent that, after giving effect to such return, the U.S. Borrower would remain in compliance with
Section 2.11(b) and no Event of Default shall have occurred and be continuing.



     (k) Conversion. In the event that the Loans become immediately due and payable on any date
pursuant to Section 7.01, all amounts (i) that the U.S. Borrower is at such time or thereafter
become required to reimburse or otherwise pay to the Administrative Agent in respect of L/C
Disbursements made under any Foreign Currency Letter of Credit (other than amounts in respect of
which the U.S. Borrower has deposited cash collateral pursuant to Section 2.05(j), if such cash
collateral was deposited in the applicable Foreign Currency to the extent so deposited or applied),
(ii) that the U.S. Revolving Facility 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 an Issuing Bank pursuant to paragraph (e) of this Section in respect of
unreimbursed L/C Disbursements made under any Foreign Currency Letter of Credit and (iii) that
constitute each U.S. Revolving Facility Lender’s participation in any L/C Disbursement made under a
Foreign Currency Letter of Credit, in each case, shall, automatically and with no further action
required, be converted into the Dollar Equivalent, determined using the Exchange Rates calculated
as of such date (or in the case of any L/C Disbursement made after such date, on the date such L/C
Disbursement is made), of such amounts. On and after such conversion, all amounts accruing and
owed to an Agent, an Issuing Bank or any Lender in respect of the obligations described in this









 



71



paragraph shall accrue and be payable in Dollars at the rates otherwise applicable hereunder.



     (l) Additional Issuing Banks. From time to time, the U.S. Borrower may by notice to the
Administrative Agent designate up to four Lenders (in addition to JPMorgan Chase Bank, N.A.) that
agree (in their sole discretion) to act in such capacity and are reasonably satisfactory to the
Administrative Agent as Issuing Banks. Each such additional Issuing Bank shall execute a
counterpart of this Agreement upon the approval of the Administrative Agent (which approval shall
not be unreasonably withheld) and shall thereafter be an Issuing Bank hereunder for all purposes.



     (m) Reporting. Unless otherwise requested by the Administrative Agent, each Issuing Bank
shall report in writing to the Administrative Agent (i) on the first Business Day of each week and
the first Business Day of each fiscal quarter, the aggregate face amount of Letters of Credit
issued by it and outstanding as of the last Business Day of the preceding week or the preceding
fiscal quarter, as applicable, (ii) on or prior to each Business Day on which such Issuing Bank
expects to issue, amend, renew or extend any Letter of Credit, the date of such issuance,
amendment, renewal or extension, and the aggregate face amount of the Letters of Credit to be
issued, amended, renewed or extended by it and outstanding after giving effect to such issuance,
amendment, renewal or extension occurred (and whether the amount thereof changed), (iii) on each
Business Day on which such Issuing Bank makes any L/C Disbursement, the date of such L/C
Disbursement and the amount of such L/C Disbursement and (iv) on any other Business Day, such other
information as the Administrative Agent shall reasonably request.



     (n) Notwithstanding any other provision of this Agreement, if, after the Closing Date, any
Change in Law shall make it unlawful for an Issuing Bank to issue Letters of Credit denominated in
a Foreign Currency, then by prompt written notice thereof to the Borrowers and to the
Administrative Agent (which notice shall be withdrawn whenever such circumstances no longer exist),
such Issuing Bank may declare that Letters of Credit will not thereafter be issued by it in the
affected Foreign Currency or Foreign Currencies, whereupon the affected Foreign Currency or Foreign
Currencies shall be deemed (for the duration of such declaration) not to constitute a Foreign
Currency for purposes of the issuance of Letters of Credit by such Issuing Bank.



     SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00
noon, Local Time, to the account of the Applicable Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be made as provided in
Section 2.04. The Applicable Agent will make such Loans available to the applicable Borrower by
promptly crediting the amounts so received, in like funds, to an account designated by the
applicable Borrower in the applicable Borrowing Request; provided that ABR Revolving Loans and
Swingline Dollar Borrowings made to finance the reimbursement of a L/C Disbursement and
reimbursements as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the
applicable Issuing Bank.









 



72


     (b) Unless the Applicable 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 Applicable Agent
such Lender’s share of such Borrowing, the Applicable 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 applicable Borrower a corresponding amount.
In such event, if a Lender has not in fact made its share of the applicable Borrowing available to
the Applicable Agent, then the applicable Lender and the applicable Borrower severally agree to pay
to the Applicable Agent forthwith on demand (without duplication) such corresponding amount with
interest thereon, for each day from and including the date such amount is made available to the
applicable Borrower to but excluding the date of payment to the Applicable Agent, at (i) in the
case of such Lender, (x) 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 (in
the case of a Borrowing denominated in Dollars) or (y) the rate reasonably determined by the
Applicable Agent to be the cost to it of funding such amount (in the case of a Borrowing
denominated in a Foreign Currency) or (ii) in the case of the applicable Borrower, the interest
rate applicable to ABR Loans (in the case of a Borrowing denominated in Dollars) or the rate
reasonably determined by the Applicable Agent to be the cost to it of funding such amount (in the
case of a Borrowing denominated in a Foreign Currency). If such Lender pays such amount to the
Applicable Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.



     SECTION 2.07. Interest Elections. (a) Each Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Eurocurrency Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request. Thereafter, the applicable
Borrower may elect to convert such Borrowing to a different Type, in the case of ABR Borrowings, or
to continue such Borrowing and, in the case of a Eurocurrency Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The applicable 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 Foreign Currency Borrowings or Swingline Dollar Borrowings, which may not be
converted or continued.



     (b) To make an election pursuant to this Section, the applicable Borrower shall notify the
Applicable 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 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 Applicable Agent of a written Interest Election Request in a form approved by the Applicable
Agent and signed by the applicable Borrower.



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









 



73



     (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);




     (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; provided that the resulting Borrowing is required to be a
Eurocurrency Borrowing in the case of a Borrowing denominated in a Foreign Currency
and in the case of Borrowings denominated in Dollars and funded out of a Global
Lending Office; and




     (iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest
Period to be applicable thereto after giving effect to such election, which shall
be a period contemplated by clause (a) of 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 Applicable Agent shall
advise each Lender to which such Interest Election Request relates of the details thereof and of
such Lender’s portion of each resulting Borrowing.



     (e) If the applicable Borrower fails to deliver a timely Interest Election Request with
respect to a Eurocurrency 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 such
Borrowing shall be converted to an ABR Borrowing (unless such Borrowing is denominated in a Foreign
Currency or is denominated in Dollars and funded out of a Global Lending Office, in which case such
Borrowing shall be continued as a Eurocurrency Borrowing with an Interest Period of one month’s
duration commencing on the last day of such Interest Period). Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the Administrative
Agent, at the written request (including a request through electronic means) of the Required
Lenders, so notifies the applicable Borrower, then, so long as an Event of Default is continuing
(i) no outstanding Borrowing may be converted to or, in the case of a Borrowing denominated in
Dollars and funded out of a U.S. Lending Office, continued as a Eurocurrency Borrowing, (ii) unless
repaid, each Eurocurrency Borrowing denominated in Dollars and funded out of a U.S. Lending Office
shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto and
(iii) unless repaid, each Eurocurrency Borrowing denominated in a Foreign Currency or denominated
in Dollars and funded out of a Global Lending Office shall be continued as a Eurocurrency Borrowing
with an Interest Period of one month’s duration.









 



74


     SECTION 2.08. Termination and Reduction of Commitments. (a) (i) Unless previously
terminated, the U.S. Revolving Facility Commitments and Global Revolving Facility Commitments shall
terminate (1) on May 31, 2007, if the Effective Funding Time does not occur by 5:00 p.m., New York
City time, on such date, or (2) otherwise, on May 9, 2012.



          (ii) Unless previously terminated, the Tranche A-1 Term Loan Commitments and the Tranche B-1
Term Loan Commitments shall terminate at 5:00 p.m., New York City time, on May 31, 2007.




     (b) The U.S. Borrower (on behalf of itself and all Foreign Subsidiary Borrowers) may at any
time terminate, or from time to time reduce, the Revolving Credit Commitments; provided that (i)
each reduction of the Commitments under any Facility shall be in an amount that is an integral
multiple of $1,000,000 and not less than $5,000,000 (or, if less, the remaining amount of the
Revolving Credit Commitments) and (ii) the U.S. Borrower shall not terminate or reduce the
Revolving Credit Commitments if, after giving effect to any concurrent prepayment of the Revolving
Loans in accordance with Section 2.11, (x) the Global Revolving Facility Credit Exposure plus the
total Ancillary Facility Commitments would exceed the total Global Revolving Facility Commitments
or (y) the U.S. Revolving Facility Credit Exposure would exceed the total U.S. Revolving Facility
Commitments.



     (c) The U.S. Borrower shall notify the Administrative Agent of any election to terminate or
reduce the Revolving Credit 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 applicable Lenders of the contents thereof. Each notice delivered by the U.S. Borrower
pursuant to this Section shall be irrevocable; provided that a notice of termination of the
Revolving Credit Commitments delivered by the U.S. Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case such notice may be
revoked by the U.S. Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the Commitments under any Facility shall be made
ratably among the Lenders in accordance with their respective Commitments under such Facility.



     SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The U.S. Borrower hereby
unconditionally promises to pay (i) to the Applicable Agent for the account of each U.S. Revolving
Facility Lender the then unpaid principal amount of each U.S. Revolving Facility Loan made by such
Lender to the U.S. Borrower on the Revolving Credit Maturity Date, (ii) to the Applicable Agent for
the account of each Global Revolving Facility Lender the then unpaid principal amount of each
Global Revolving Facility Loan made by such Lender to the U.S. Borrower on the Revolving Credit
Maturity Date, (iii) to the Applicable Agent for the account of each Lender the then unpaid
principal amount of each Term Loan made by such Lender as provided in Section 2.10 and (iv) to each
Swingline Dollar Lender the then unpaid principal amount of each Swingline Dollar









 



75



Loan made by such Lender to the U.S. Borrower on the earlier of the Revolving Credit Maturity
Date and the first date after such Swingline Dollar Loan is made that is the 15th or last day of a
calendar month and is at least five Business Days after such Swingline Dollar Loan is made;
provided that on each date that a U.S. Revolving Facility Borrowing is made by the U.S. Borrower,
the U.S. Borrower shall repay all Swingline Dollar Loans then outstanding. Each Foreign Subsidiary
Borrower hereby unconditionally promises to pay (i) to the Applicable Agent for the account of each
Global Revolving Facility Lender the then unpaid principal amount of each Global Revolving Facility
Loan made by such Lender to such Foreign Subsidiary Borrower on the Revolving Credit Maturity Date
and (ii) to each Swingline Foreign Currency Lender the then unpaid principal amount of each
Swingline Foreign Currency Loan made by such Lender to such Foreign Subsidiary Borrower on the
earlier of the Revolving Credit Maturity Date and the last day of the Interest Period applicable to
such Swingline Foreign Currency Loan.



     (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) Each Applicable Agent shall maintain accounts in which it shall record (i) the amount of
each Loan made hereunder, the Facility and Type thereof and the Interest Period (if any) 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) any amount received by such Applicable 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 an Applicable 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 be evidenced by a promissory note. In such
event, the applicable 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 Applicable Agent. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note is a registered note,
to such payee and its registered assigns).



     SECTION 2.10. Repayment of Term Loans and Revolving Loans. (a) [reserved]









 



76


     (b) Subject to adjustment pursuant to paragraph (g) of this Section, the U.S. Borrower shall
repay Tranche A-1 Term Borrowings on each date set forth below in the aggregate principal amount
set forth opposite such date (each such date being referred to as a “Tranche A-1 Installment
Date”):



	 	 	 	 	 
	Date	 	Amount
	September 30, 2009
	 	$	15,000,000.00	 
	December 31, 2009
	 	$	15,000,000.00	 
	March 31, 2010
	 	$	15,000,000.00	 
	June 30, 2010
	 	$	15,000,000.00	 
	September 30, 2010
	 	$	22,500,000.00	 
	December 31, 2010
	 	$	22,500,000.00	 
	March 31, 2011
	 	$	22,500,000.00	 
	June 30, 2011
	 	$	22,500,000.00	 
	September 30, 2011
	 	$	37,500,000.00	 
	December 31, 2011
	 	$	37,500,000.00	 
	March 31, 2012
	 	$	37,500,000.00	 
	June 30, 2012
	 	$	37,500,000.00	 
	September 30, 2012
	 	$	75,000,000.00	 
	December 31, 2012
	 	$	75,000,000.00	 
	March 31, 2013
	 	$	75,000,000.00	 
	Tranche A-1 Maturity Date
	 	$	75,000,000.00	 






     (c) [reserved]



     (d) Subject to adjustment pursuant to paragraph (g) of this Section, the U.S. Borrower shall
repay Tranche B-1 Term Borrowings on each date set forth below in the aggregate principal amount
set forth opposite such date (each such date being referred to as a “Tranche B-1 Installment
Date”):



	 	 	 	 	 
	Date	 	Amount
	September 30, 2007
	 	$	1,250,000.00	 
	December 31, 2007
	 	$	1,250,000.00	 
	March 31, 2008
	 	$	1,250,000.00	 
	June 30, 2008
	 	$	1,250,000.00	 
	September 30, 2008
	 	$	1,250,000.00	 
	December 31, 2008
	 	$	1,250,000.00	 
	March 31, 2009
	 	$	1,250,000.00	 
	June 30, 2009
	 	$	1,250,000.00	 
	September 30, 2009
	 	$	1,250,000.00	 
	December 31, 2009
	 	$	1,250,000.00	 
	March 31, 2010
	 	$	1,250,000.00	 
	June 30, 2010
	 	$	1,250,000.00	 
	September 30, 2010
	 	$	1,250,000.00	 
	December 31, 2010
	 	$	1,250,000.00	 
	March 31, 2011
	 	$	1,250,000.00	 
	June 30, 2011
	 	$	1,250,000.00	 












 



77


	 	 	 	 	 
	Date	 	Amount
	September 30, 2011
	 	$	1,250,000.00	 
	December 31, 2011
	 	$	1,250,000.00	 
	March 31, 2012
	 	$	1,250,000.00	 
	June 30, 2012
	 	$	1,250,000.00	 
	September 30, 2012
	 	$	1,250,000.00	 
	December 31, 2012
	 	$	1,250,000.00	 
	March 31, 2013
	 	$	1,250,000.00	 
	June 30, 2013
	 	$	1,250,000.00	 
	September 30, 2013
	 	$	1,250,000.00	 
	December 31, 2013
	 	$	1,250,000.00	 
	Tranche B-1 Maturity Date
	 	$	467,500,000.00	 






     (e) [reserved]



     (f) To the extent not previously paid, (i) all Tranche A-1 Term Loans shall be due and
payable on the Tranche A-1 Maturity Date and (ii) all Tranche B-1 Term Loans shall be due and
payable on the Tranche B-1 Maturity Date.



     (g) Except as set forth in paragraph (h) below, (i)(A) all Net Proceeds to be applied at any
time to prepay Term Borrowings pursuant to Section 2.11(c) and (B) Excess Cash Flow to be applied
at any time to prepay Term Borrowings pursuant to Section 2.11(d) shall be applied to the Tranche
A-1 Term Borrowings and Tranche B-1 Term Borrowings ratably in accordance with the respective
principal amounts outstanding thereof and (ii) each prepayment of principal of the Term Borrowings
pursuant to Section 2.11(a) shall be applied to the Term Borrowings as directed by the U.S.
Borrower.



     Prepayments made pursuant to Section 2.11 shall be applied to each Term Borrowing, (A) in the
case of prepayments made pursuant to Section 2.11(a) or Section 2.11(d), to reduce scheduled
amortization payments under paragraphs (b) and (d) above as directed by the U.S. Borrower and (B)
in the case of prepayments made pursuant to Section 2.11(c), (1) to reduce in order of maturity the
scheduled amortization payments under paragraphs (b) and (d) above occurring within the 24-month
period after the date of such payment in respect of such Term Borrowing and (2) thereafter, to
reduce on a pro rata basis (based on the amount of such amortization payments) the remaining
scheduled amortization payments in respect of such Term Borrowing.



     (h) Any Lender holding Tranche B-1 Term Loans may elect, on not less than two Business Days’
prior written notice to the Administrative Agent with respect to any mandatory prepayment made
pursuant to Section 2.11(c) or 2.11(d), not to have such prepayment applied to such Lender’s
Tranche B-1 Term Loans, in which case (i) so long as Tranche A-1 Term Borrowings are outstanding
(A) an amount equal to 50% of the amount not so applied shall be applied to prepay Tranche A-1 Term
Borrowings and shall reduce scheduled payments under Section 2.10(b) after the date of any
prepayment on the same basis as is provided for the respective types of payments pursuant to
Section 2.10(g)









 



78



and (B) 50% of the amount not so applied shall be retained by the U.S. Borrower and (ii) once
all Tranche A-1 Term Borrowings have been repaid in full, the amount not so applied shall be
retained by the U.S. Borrower. If any Lender under the Tranche B-1 Facility elects not to have a
mandatory prepayment applied to its Loans pursuant to this paragraph (h), then, notwithstanding
anything to the contrary in this Agreement, the portion of such mandatory prepayment accepted by
Lenders under the Tranche B-1 Facility (such Lenders, the “Accepting Lenders”) shall be
applied ratably among all Borrowings of Tranche B-1 Term Loans held by Accepting Lenders.



     (i) Prior to any repayment of any Borrowing under any Facility hereunder, the U.S. Borrower
or the applicable Foreign Subsidiary Borrower, as applicable, shall select the Borrowing or
Borrowings under the applicable Facility to be repaid and shall notify the Applicable Agent by
telephone (confirmed by telecopy) of such selection not later than 2:00 p.m., Local Time, (i) in
the case of an ABR Borrowing, one Business Day before the scheduled date of such repayment and (ii)
in the case of a Eurocurrency Borrowing, three Business Days before the scheduled date of such
repayment. Each repayment of a Borrowing (x) in the case of the Global Revolving Facility, shall
be applied to the Global Revolving Facility Loans included in the repaid Borrowing such that each
Global Revolving Facility Lender receives its ratable share of such repayment (based upon the
respective Global Revolving Facility Credit Exposures of the Global Revolving Facility Lenders at
the time of such repayment) and (y) in all other cases, shall be applied ratably to the Loans
included in the repaid Borrowing. Notwithstanding anything to the contrary in the immediately
preceding sentence, prior to any repayment of a Swingline Dollar Borrowing or a Swingline Foreign
Currency Borrowing hereunder, the U.S. Borrower or the applicable Foreign Subsidiary Borrower, as
applicable, shall select the Borrowing or Borrowings to be repaid and shall notify the Applicable
Agent by telephone (confirmed by telecopy) of such selection not later than 1:00 p.m., Local Time,
on the scheduled date of such repayment. Repayments of Borrowings shall be accompanied by accrued
interest on the amount repaid.



     SECTION 2.11. Prepayment of Loans. (a) The applicable Borrower shall have the right at any
time and from time to time to prepay any Borrowing in whole or in part, without premium or penalty
(but subject to Section 2.16), in an aggregate principal amount that is an integral multiple of the
Borrowing Multiple and not less than the Borrowing Minimum or, if less, the amount outstanding,
subject to prior notice in accordance with Section 2.10(i), which notice shall be irrevocable
except to the extent conditioned on a refinancing of all or any portion of the Facilities.



     (b) In the event and on such occasion that (i) (A) the sum of (1) the Global Revolving
Facility Credit Exposure and (2) the total Ancillary Commitments exceeds (B) (x) 105% of the total
Global Revolving Facility Commitments solely as a result of currency fluctuations or (y) the total
Global Revolving Facility Commitments (other than as a result of currency fluctuations), the
Borrowers under the Global Revolving Facility shall prepay Global Revolving Facility Borrowings or
Swingline Foreign Currency Borrowings made to such Borrowers, or reduce total Ancillary
Commitments, in an aggregate amount equal to the amount by which (A) the sum of (1) the Global
Revolving Facility Credit Exposure and (2) the total Ancillary Commitments exceeds (B) the total









 



79



Global Revolving Facility Commitments or (ii) the U.S. Revolving Facility Credit Exposure
exceeds (A) 105% of the total U.S. Revolving Facility Commitments solely as a result of currency
fluctuations or (B) the total U.S. Revolving Facility Commitments (other than as a result of
currency fluctuations), the U.S. Borrower shall prepay U.S. Revolving Facility Borrowings or
Swingline Dollar Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in
an account with the Administrative Agent pursuant to Section 2.05(j)) in an aggregate amount equal
to the amount by which the U.S. Revolving Facility Credit Exposure exceeds the total U.S. Revolving
Facility Commitments.



     (c) The U.S. Borrower shall, promptly upon receipt thereof, apply all Net Proceeds to prepay
Term Borrowings in accordance with paragraphs (g) through (i) of Section 2.10.



     (d) Not later than 90 days after the end of each Excess Cash Flow Period, the U.S. Borrower
shall calculate Excess Cash Flow for such Excess Cash Flow Period and shall apply an amount equal
to the Required Percentage of such Excess Cash Flow to prepay Term Borrowings in accordance with
paragraphs (g) through (i) of Section 2.10. Not later than the date on which the U.S. Borrower is
required to deliver financial statements with respect to the end of each Excess Cash Flow Period
under Section 5.04(a), the U.S. Borrower will deliver to the Administrative Agent a certificate
signed by a Financial Officer of the U.S. Borrower setting forth the amount, if any, of Excess Cash
Flow for such fiscal year and the calculation thereof in reasonable detail.



     SECTION 2.12. Fees. (a) The U.S. Borrower (on behalf of itself and the Foreign Subsidiary
Borrowers) agrees to pay to each Lender (other than any Defaulting Lender), 10 Business Days after
the last day of March, June, September and December in each year, and three Business Days after the
date on which the Revolving Credit Commitments of all the Lenders shall be terminated as provided
herein, (x) through the Administrative Agent, a commitment fee on the sum of (i) the daily unused
amount of the U.S. Revolving Facility Commitment and (ii) the daily amount of the Available Unused
Commitment during the preceding quarter (or other period commencing with the Closing Date or ending
with the date on which the last of the Commitments of such Lender shall be terminated) and (y)
directly to each Ancillary Lender, a commitment fee on the daily unused amount of the Ancillary
Commitment of such Lender during the preceding quarter (or other period commencing with the Closing
Date or ending with the date on which the last of the Commitments of such Lender shall be
terminated), in each case at the rates set forth under the caption “Commitment Fee Rate” in the
definition of “Applicable Margin” (each of the commitment fees referred to in clauses (x) and (y),
a “Commitment Fee”). All Commitment Fees shall be computed on the basis of the actual number of
days elapsed in a year of 360 days. For the purpose of calculating any Lender’s Commitment Fee,
the outstanding Swingline Loans during the period for which such Lender’s Commitment Fee is
calculated shall be deemed to be zero. The Commitment Fee due to each Lender shall commence to
accrue on the Restatement Effective Date and shall cease to accrue on the date on which the last of
the Commitments of such Lender shall be terminated as provided herein.









 



80


     (b) The U.S. Borrower (on behalf of itself and the Foreign Subsidiary Borrowers) from time to
time agrees to pay (i) to each U.S. Revolving Facility Lender (other than any Defaulting Lender),
through the Administrative Agent, 10 Business Days after the last day of March, June, September and
December of each year and three Business Days after the date on which the Revolving Credit
Commitments of all the Lenders shall be terminated as provided herein, a fee (an “L/C Participation
Fee”) on such Lender’s U.S. Revolving Facility Percentage of the daily aggregate Revolving L/C
Exposure (excluding the portion thereof attributable to unreimbursed L/C Disbursements), during the
preceding quarter (or shorter period commencing with the Closing Date or ending with the Revolving
Credit Maturity Date or the date on which the U.S. Revolving Facility Commitments shall be
terminated) at the rate per annum equal to the Applicable Margin for Eurocurrency Revolving
Borrowings effective for each day in such period minus the amount of Issuing Bank Fees (as defined
below) set forth in clause (ii)(x) below and (ii) to each Issuing Bank, for its own account, (x)
three Business Days after the last day of March, June, September and December of each year and
three Business Days after the date on which the U.S. Revolving Facility Commitments of all the
Lenders shall be terminated as provided herein, a fronting fee in respect of each Letter of Credit
issued by such Issuing Bank for the period from and including the date of issuance of such Letter
of Credit to and including the termination of such Letter of Credit, computed at a rate equal to 1/4
of 1% per annum of the daily average stated amount of such Letter of Credit), plus (y) in
connection with the issuance, amendment or transfer of any such Letter of Credit or any L/C
Disbursement thereunder, such Issuing Bank’s customary documentary and processing charges
(collectively, “Issuing Bank Fees”). All L/C Participation Fees and Issuing Bank Fees that are
payable on a per annum basis shall be computed on the basis of the actual number of days elapsed in
a year of 360 days.



     (c) The U.S. Borrower agrees to pay to the Administrative Agent, for the account of the
Administrative Agent, the annual administration fee set forth in the Fee Letter dated as of April
13, 2007, among JPMorgan Chase Bank, N.A., J.P. Morgan Securities Inc. and the U.S. Borrower, as
amended, restated, supplemented or otherwise modified from time to time, at the times specified
therein (the “Administrative Agent Fees”).



     (d) All Fees shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders, except that
Issuing Bank Fees shall be paid directly to the applicable Issuing Banks. Once paid, none of the
Fees shall be refundable under any circumstances.



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



     (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 Margin.









 



81


     (c) The Swingline Foreign Currency Loans comprising each Swingline Foreign Currency Borrowing
shall bear interest at the Swingline Foreign Currency Rate plus 1.50% per annum plus the Applicable
Margin then in effect for Eurocurrency Revolving Borrowings.



     (d) Notwithstanding the foregoing, if any principal of or interest on any Loan or any Fees or
other amount payable by the applicable 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 (x) payable in Dollars, 2% plus the rate applicable
to ABR Loans as provided in paragraph (a) of this Section or (y) payable in a Foreign Currency, the
rate set forth in clause (i) of this sentence; provided that this paragraph (d) shall not apply to
any Event of Default that has been waived by the Lenders pursuant to Section 9.08.



     (e) Accrued interest on each Loan shall be payable in arrears (i) on each Interest Payment
Date for such Loan and (ii)(A) in the case of the Global Revolving Facility Loans, upon termination
of the Global Revolving Facility Commitments, (B) in the case of the U.S. Revolving Facility Loans,
upon termination of the U.S. Revolving Facility Commitments, (C) in the case of the Tranche A-1
Term Loans, on the Tranche A-1 Maturity Date and (D) in the case of the Tranche B-1 Term Loans, on
the Tranche B-1 Maturity Date, in each case at the rate set forth for such Loans herein; provided
that (i) interest accrued pursuant to paragraph (d) 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 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.



     (f) All interest hereunder shall be computed on the basis of a year of 360 days, except that
(i) interest on Borrowings denominated in Sterling and (ii) interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but excluding the last day).
The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Applicable 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 denominated in any currency:





     (a) the Applicable 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









 



82



     (b) the Applicable Agent is advised by the Required Lenders or the Majority Lenders
under the Global Revolving Facility 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 of making or maintaining their Loans included in such Borrowing for such
Interest Period;


then the Applicable Agent shall give notice thereof to the Borrowers and the Lenders by telephone
or telecopy as promptly as practicable thereafter and, until the Applicable Agent notifies the
Borrowers 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 Borrowing to, or continuation of
any Borrowing as, a Eurocurrency Borrowing denominated in such currency shall be ineffective and
such Borrowing shall be converted to or continued as on the last day of the Interest Period
applicable thereto (A) if such Borrowing is denominated in Dollars and funded out of a U.S. Lending
Office, an ABR Borrowing or (B) if such Borrowing is denominated in a Foreign Currency or is
denominated in Dollars and funded out of a Global Lending Office, as a Borrowing bearing interest
at such rate as the Majority Lenders under the Global Revolving Facility and the applicable
Borrower shall agree adequately reflects the costs to the Global Revolving Facility Lenders of
making or maintaining their Loans, and (ii) if any Borrowing Request requests a Eurocurrency
Borrowing in such currency, such Borrowing shall be made as an ABR Borrowing (if such Borrowing is
requested to be made in Dollars out of a U.S. Lending Office) or shall be made as a Borrowing
bearing interest at such rate as the Majority Lenders under the Global Revolving Facility shall
agree adequately reflects the costs to the Global Revolving Facility Lenders of making the Loans
comprising such Borrowing.




     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 those for which payment has been requested pursuant to
Section 2.21) or Issuing Bank; or




     (ii) impose on any Lender or Issuing Bank or the London interbank market any
other condition affecting this Agreement, Eurocurrency Loans or Swingline Foreign
Currency Loans made by such Lender or any Letter of Credit or participation therein
(except those for which payment has been requested pursuant to Section 2.21);


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 Swingline Foreign Currency Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or Issuing Bank of
participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or
otherwise), then the applicable Borrower (in the case of a Loan) or the U.S. Borrower (in the case
of a Letter of Credit) will pay to








 



83


such Lender or Issuing Bank, as applicable, such additional amount or amounts as will compensate
such Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction
suffered.




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



     (c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or Issuing Bank or its holding company, as applicable, as
specified in paragraph (a) or (b) of this Section shall be delivered to the applicable Borrower (in
the case of a Loan) or the U.S. Borrower (in the case of a Letter of Credit) and shall be
conclusive absent manifest error. The applicable Borrower (in the case of a Loan) or the U.S.
Borrower (in the case of a Letter of Credit) shall pay such Lender or Issuing Bank, as applicable,
the amount shown as due on any such certificate within 10 days after receipt thereof.



     (d) Promptly after any Lender or any Issuing Bank has determined that it will make a request
for increased compensation pursuant to this Section 2.15, such Lender or Issuing Bank shall notify
the applicable Borrower thereof. Failure or delay on the part of any Lender or Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or
Issuing Bank’s right to demand such compensation; provided that a Borrower shall not be required to
compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender or Issuing Bank, as
applicable, notifies such Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor;
provided, further, that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.



     SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any principal of
any Eurocurrency Loan or Swingline Foreign Currency Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any
Eurocurrency Loan other than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay









 



84



any Eurocurrency Loan on the date specified in any notice delivered pursuant hereto 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 a Borrower pursuant to Section 2.19, then, in any such event,
such Borrower shall compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurocurrency Loan or Swingline Foreign Currency Loan, such loss, cost or
expense to any Lender shall be deemed to be the 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 a Eurocurrency Loan,
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
applicable Currency of a comparable amount and period from other banks in the eurodollar 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 such Borrower and shall be conclusive absent
manifest error. Such Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.



     SECTION 2.17. Taxes. (a) Any and all payments by or on account of any obligation of any
Borrower hereunder shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided that if a 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) any Agent, Lender or Issuing Bank, as applicable, 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, the Borrowers shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.



     (c) Each Borrower shall indemnify the Agents, each Lender and each Issuing Bank, within 10
days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by such Agent, Lender or Issuing Bank, as applicable, 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
such Borrower by a Lender or an Issuing Bank, or by the Administrative Agent on its own behalf, on
behalf of another Agent or on behalf of a Lender or an Issuing Bank, shall be conclusive absent
manifest error.









 



85


     (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a
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 an Agent or a Lender determines, in its sole discretion, that it has received a refund
of any Taxes or Other Taxes as to which it has been indemnified by a Borrower or with respect to
which such 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 reasonable out-of-pocket expenses of such 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 such 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 such Agent or such Lender in the
event such Agent or such Lender is required to repay such refund to such Governmental Authority.
This Section shall not be construed to require any Agent or any Lender to make available its Tax
returns (or any other information relating to its Taxes which it deems confidential) to the
Borrowers or any other person.



     SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) Unless
otherwise specified, each Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest, fees or reimbursement of L/C Disbursements, or of amounts payable
under Section 2.15, 2.16, 2.17 or 2.21, or otherwise) prior to 1:00 p.m., Local Time, on the date
when due, in immediately available funds, without set-off or counterclaim. Any amounts received
after such time on any date may, in the discretion of the Applicable 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 to the Applicable Agent to the applicable account designated to the
U.S. Borrower by each Applicable Agent, except payments to be made directly to the applicable
Issuing Bank or the applicable Swingline Lender as expressly provided herein and except that
payments pursuant to Sections 2.15, 2.16, 2.17, 2.21 and 9.05 shall be made directly to the persons
entitled thereto. The Applicable Agent shall distribute any such payments received by it for the
account of any other person to the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall
be extended to the next









 



86



succeeding Business Day, and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder of (i) principal or
interest in respect of any Loan shall be made in the currency in which such Loan is denominated,
(ii) reimbursement obligations shall, subject to Sections 2.05(e) and 2.05(k), be made in the
currency in which the Letter of Credit in respect of which such reimbursement obligation exists is
denominated or (iii) any other amount due hereunder or under another Loan Document (other than an
Ancillary Facility Document) shall be made in Dollars. Any payment required to be made by an
Applicable Agent hereunder shall be deemed to have been made by the time required if such
Applicable Agent shall, at or before such time, have taken the necessary steps to make such payment
in accordance with the regulations or operating procedures of the clearing or settlement system
used by such Applicable Agent to make such payment. Any amount payable by any Applicable Agent to
one or more Lenders in the national currency of a member state of the European Union that has
adopted the Euro as its lawful currency shall be paid in Euros.



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



     (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Loans
or participations in L/C Disbursements or Swingline Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Loans and
participations in L/C 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 Term Loans, Revolving Loans and
participations in L/C 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 Term Loans, Revolving
Loans and participations in L/C 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 (c) shall not be
construed to apply to any payment made by a 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 L/C Disbursements to any
assignee or participant, other than to such Borrower or any Subsidiary or Affiliate thereof (as to
which the provisions of this paragraph (c) shall apply). Each Borrower consents to the foregoing
and agrees, to the extent it may effectively do so under applicable law, that any









 



87



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 in the amount of such participation.



     (d) Unless the Applicable Agent shall have received notice from a Borrower prior to the date
on which any payment is due to the Applicable Agent for the account of the Lenders or the
applicable Issuing Bank hereunder that such Borrower will not make such payment, the Applicable
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 applicable Issuing Bank, as
applicable, the amount due. In such event, if such Borrower has not in fact made such payment,
then each of the Lenders or the applicable Issuing Bank, as applicable, severally agrees to repay
to the Applicable 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 (i) 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 (in the case of an amount denominated in Dollars)
and (ii) the rate reasonably determined by the Applicable Agent to be the cost to it of funding
such amount (in the case of an amount denominated in a Foreign Currency).



     (e) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Applicable Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received
by the Applicable 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 2.21, or if a 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 reasonable judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15, 2.17 or 2.21, as
applicable, in the future and (ii) would not subject such Lender to any material unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender in any material respect. Each
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.



     (b) If any Lender requests compensation under Section 2.15 or 2.21, or if a 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 is a Defaulting Lender, then such Borrower may, at its
sole expense and effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate,









 



88



without recourse (in accordance with and subject to the restrictions contained in Section
9.04), all its interests, rights and obligations under this Agreement to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) such Borrower 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
L/C 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 such Borrower (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 2.21 or payments
required to be made pursuant to Section 2.17, such assignment will result in a reduction in such
compensation or payments. Nothing in this Section 2.19 shall be deemed to prejudice any rights
that any Borrower may have against any Lender that is a Defaulting Lender.



     (c) In connection with any proposed waiver, amendment or modification of this Agreement or
any Loan Document pursuant to Section 9.08(b) (a “Proposed Change”) requiring the consent of all
affected Lenders, if the consent of the Required Lenders (and, to the extent any Proposed Change
requires the consent of Lenders holding Loans of any Facility pursuant to clause (vii) or (viii) of
Section 9.08(b), the consent of the Majority Lenders participating in such Facility) to such
Proposed Change is obtained, but the consent to such Proposed Change of other Lenders whose consent
is required is not obtained (any such Lender whose consent is not obtained as described in this
Section 2.19(c) being referred to as a “Non-Consenting Lender”), then the U.S. Borrower may, at its
sole expense and effort, upon notice to such Non-Consenting Lender and the Administrative Agent,
require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all its interests, rights and obligations
under this Agreement to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (i) the U.S. Borrower shall
have received the prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, and (ii) such Non-Consenting Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in L/C 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 U.S. Borrower (in the case of all other amounts, including amounts under Sections
2.15, 2.16 and 2.17).



     SECTION 2.20. Foreign Subsidiary Borrowers. On or after the Closing Date, the U.S. Borrower
may, upon 10 Business Days prior notice to the Administrative Agent and each Lender, designate any
Foreign Subsidiary that is a Wholly Owned Subsidiary as a Foreign Subsidiary Borrower by delivery
to the Administrative Agent of a Foreign Subsidiary Borrower Agreement executed by such Foreign
Subsidiary and the U.S. Borrower. Each such designation shall specify whether such Foreign
Subsidiary shall be entitled (i) to make Borrowings under the Global Revolving Facility and request
Letters of Credit under the U.S. Revolving Facility and/or (ii) to request the creation of
Ancillary









 



89



Facilities under Section 2.22, and each such designation shall be subject to the consent of
the Administrative Agent (which consent shall not unreasonably be withheld). Following any notice
by the U.S. Borrower of the designation of a Foreign Subsidiary Borrower pursuant to this Section,
if the Administrative Agent or any Lender determines that it is required to comply with any “know
your customer” or similar identification procedures with respect to such Foreign Subsidiary
Borrower and the information necessary for such compliance is not already available to the
Administrative Agent or such Lender, as applicable, then the U.S. Borrower shall, promptly upon the
request of the Administrative Agent or such Lender, as applicable, supply such documentation and
other evidence as is reasonably requested by the Administrative Agent or such Lender in order for
the Administrative Agent or such Lender, as applicable, to be satisfied that it has complied with
such requirements. Upon the execution by the U.S. Borrower and delivery to the Administrative
Agent of a Foreign Subsidiary Borrower Termination with respect to any Foreign Subsidiary Borrower,
such Foreign Subsidiary shall cease to be a Foreign Subsidiary Borrower and a party to this
Agreement; provided that no Foreign Subsidiary Borrower Termination will become effective as to any
Foreign Subsidiary Borrower (other than to terminate such Foreign Subsidiary Borrower’s right to
make further Borrowings under this Agreement) at a time when any principal of or interest on any
Loan to such Foreign Subsidiary Borrower or any Foreign Currency Letter of Credit for the account
of such Foreign Subsidiary Borrower shall be outstanding hereunder or any Ancillary Facility under
which Ancillary Credit Extensions may be made available to such Foreign Subsidiary Borrower has not
been previously terminated. Promptly following receipt of any Foreign Subsidiary Borrower
Agreement or Foreign Subsidiary Borrower Termination, the Administrative Agent shall send a copy
thereof to each Revolving Credit Lender. The U.S. Borrower shall be entitled to designate any
Foreign Subsidiary that is a Wholly Owned Subsidiary as a Foreign Subsidiary Borrower; provided
that unless such Foreign Subsidiary is a Foreign Subsidiary Loan Party and is in compliance with
the requirements described in Section 5.10(f), such Foreign Subsidiary shall be permitted to be a
Foreign Subsidiary Borrower solely for purposes of obtaining an Unsecured Ancillary Facility and
shall not be permitted to make any other Borrowings hereunder.



     SECTION 2.21. Additional Reserve Costs. (a) For so long as any Lender is required to make
special deposits with the Bank of England or comply with reserve assets, liquidity, cash margin or
other requirements of the Bank of England, to maintain reserve asset ratios or to pay fees, in each
case in respect of such Lender’s Eurocurrency Loans or Swingline Foreign Currency Loans, such
Lender shall be entitled to require the applicable Borrower to pay, contemporaneously with each
payment of interest on each of such Loans, additional interest on such Loan at a rate per annum
equal to the Mandatory Costs Rate calculated in accordance with the formula and in the manner set
forth in Exhibit L hereto.



     (b) For so long as any Lender is required to comply with reserve assets, liquidity, cash
margin or other requirements of any monetary or other authority (including any such requirement
imposed by the European Central Bank or the European System of Central Banks, but excluding
requirements reflected in the Statutory Reserves or the Mandatory Costs Rate) in respect of any of
such Lender’s Eurocurrency Loans Swingline Foreign Currency Loans, such Lender shall be entitled to
require the









 



90



applicable Borrower to pay, contemporaneously with each payment of interest on each of such
Lender’s Loans subject to such requirements, additional interest on such Loan at a rate per annum
specified by such Lender to be the cost to such Lender of complying with such requirements in
relation to such Loan.



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



     SECTION 2.22. Ancillary Facilities. (a) General. If a Foreign Subsidiary Borrower and a
Global Revolving Facility Lender agree, subject to (i) compliance with the requirements set forth
in this Section 2.22 and (ii) such Foreign Subsidiary Borrower having complied with Sections 2.20
and 4.03, such Global Revolving Facility Lender shall be permitted to provide an Ancillary Facility
on a bilateral basis to such Foreign Subsidiary Borrower. The total Ancillary Commitments shall
not at any time exceed the Ancillary Commitment Limit. Ancillary Facilities may be provided solely
by Global Revolving Facility Lenders that have Global Revolving Facility Commitments.



     (b) Creation of Ancillary Facilities. To request the creation of an Ancillary Facility, a
Foreign Subsidiary Borrower shall deliver to the Administrative Agent not later than 10 Business
Days prior to the first date on which such Ancillary Facility is proposed to be made available:




     (i) a notice in writing specifying:




     (A) the Foreign Subsidiary Borrower to which extensions of credit
will be made available thereunder;




     (B) the first date on which such Ancillary Facility shall be made
available and the expiration date of such Ancillary Facility (which shall
be no later than the Revolving Credit Maturity Date);




     (C) the type of Ancillary Facility being provided;




     (D) the identity of the Ancillary Lender; and




     (E) the amount of the Ancillary Commitment with respect to such
Ancillary Facility (which shall be expressed in Dollars and shall not (x)
exceed the Available Unused Commitment of such Ancillary Lender on the
first date on which such Ancillary Facility shall be made available or (y)
when combined with all Ancillary Commitments of the Ancillary Lenders,
exceed the Ancillary Commitment Limit) and the Foreign Currencies in which
such Ancillary Facilities shall be made available.









 



91



     (ii) a copy of the Ancillary Facility Document with respect to such Ancillary
Facility (which shall be reasonably acceptable to the Administrative Agent),
together with a certificate of a Responsible Officer certifying that the terms of
such Ancillary Facility satisfy the requirements set forth in clauses (i)(B) and
(i)(E) above and in paragraph (d) of this Section; and




     (iii) such other information that the Administrative Agent may reasonably
request in connection with such Ancillary Facility.


The Administrative Agent shall give notice to each Global Revolving Facility Lender of such
matters. Notwithstanding anything to the contrary, the 10 Business Day notice period specified in
the first sentence of this paragraph shall not apply to any Restatement Effective Date Ancillary
Facility.




     (c) Amendment of Ancillary Facilities. To request an amendment of an Ancillary Facility, the
applicable Foreign Subsidiary Borrower shall deliver to the Administrative Agent, not later than
five Business Days prior to the effective date of such amendment, (i) a notice in writing (A)
identifying the Ancillary Facility to be amended, (B) the effective date of such Amendment and (C)
the documentation relating to such proposed amendment (which shall be reasonably satisfactory to
the Administrative Agent) and (ii) a certificate of a Responsible Officer certifying that the terms
of such Ancillary Facility, after giving effect to such proposed amendment, satisfy the
requirements set forth in clauses (i)(B) and (i)(E) of paragraph (b) of this Section and in
paragraph (d) of this Section. The Administrative Agent shall give notice to each Global Revolving
Facility Lender of such matters.



     (d) Terms of Ancillary Facility. Each Ancillary Facility shall contain terms and conditions
acceptable to the applicable Ancillary Lender and the applicable Foreign Subsidiary Borrower
thereunder; provided that such terms shall at all times: (i) be based upon normal commercial terms
at the time of the creation of such Ancillary Facility pursuant to paragraph (b) of this Section;
(ii) permit extensions of credit thereunder to be made only to such Foreign Subsidiary Borrower;
(iii) provide that the Ancillary Commitment of the applicable Ancillary Lender under such Ancillary
Facility shall not exceed such Ancillary Lender’s Available Unused Commitment and that, in the
event and on such occasion that such Ancillary Commitment exceeds such Available Unused Commitment,
such Ancillary Commitment shall be automatically reduced by the amount of such excess; (iv) provide
that the Ancillary Commitment under such Ancillary Facility be canceled, and that all extensions of
credit under such Ancillary Facility be repaid, not later than the Revolving Credit Maturity Date;
(v) provide that the conditions set forth in Section 4.02 shall be conditions to each extension of
credit under such Ancillary Facility; and (vi) not provide for the payment of commitment fees in
respect of the Ancillary Commitment for such Ancillary Facility.



     (e) Termination and Demand for Repayment.









 



92



     (i) Any Ancillary Facility shall be permitted to be terminated by the
applicable Ancillary Lender in accordance with the terms of such Ancillary Facility
and, upon the effective date of such termination (an “Ancillary Facility
Termination Date”), all Ancillary Credit Extensions under such Ancillary Facility
shall be refinanced with the proceeds of an Ancillary Replacement Borrowing as set
forth below, unless the Loans shall have been accelerated pursuant to Section 7.01.




     (ii) Notwithstanding anything to the contrary set forth in the Ancillary
Facility Document relating to the Ancillary Facility to be terminated, the
Ancillary Lender seeking to terminate an Ancillary Facility shall deliver to the
Applicable Agent, with a copy to the applicable Foreign Subsidiary Borrower, a
written notice of termination (a “Notice of Termination”) not later than five
Business Days prior to the Ancillary Facility Termination Date specified in such
Notice of Termination for such Ancillary Facility. Each such Notice of Termination
shall specify:




     (A) the names of the applicable Foreign Subsidiary Borrower and
Ancillary Lender;




     (B) the aggregate amount of Ancillary Credit Extensions under the
applicable Ancillary Facility (which shall not exceed the Ancillary
Commitment in respect of such Ancillary Facility) (the “Ancillary Facility
Repayment Amount”); and




     (C) the applicable Ancillary Facility Termination Date.




     (iii) Following receipt of a Notice of Termination with respect to an
Ancillary Facility, the applicable Foreign Subsidiary Borrower shall deliver to the
Applicable Agent a written notice not later than 2:00 p.m., Local Time, three
Business Days prior to the Ancillary Facility Termination Date with respect to such
Ancillary Facility, which notice shall specify the following information relating
to an Ancillary Replacement Borrowing:




     (A) the name of the Eligible Borrower that shall make such Ancillary
Replacement Borrowing;




     (B) the currency in which such Ancillary Replacement Borrowing is to
be denominated (which shall be Dollars, Euros or Sterling);




     (C) the initial Interest Period to be applicable to such Ancillary
Replacement Borrowing, which shall be a period contemplated by clause (a)
of the definition of the term “Interest Period”; and









 



93



     (D) the location and number of the applicable Eligible Borrower’s
account to which funds are to be disbursed.




     (iv) On the Ancillary Facility Termination Date for an Ancillary Facility,
the Global Revolving Facility Lenders shall make Loans composing an Ancillary
Replacement Borrowing in an aggregate principal amount equal to the Ancillary
Facility Repayment amount in accordance with Sections 2.02 and 2.06.




     (v) The Eligible Borrower to which such Ancillary Replacement Borrowing is
made shall use the proceeds of such Ancillary Replacement Borrowing solely (i) to
repay to the applicable Ancillary Lender all Funded Ancillary Credit Extensions
under such terminated Ancillary Facility and (ii) to deposit cash collateral with
such Ancillary Lender in respect of all Unfunded Ancillary Credit Extensions under
such terminated Ancillary Facility. Each deposit of cash collateral pursuant to
this paragraph shall be held by the applicable Global Revolving Facility Lender as
collateral for the payment and performance of the obligations of the applicable
Foreign Subsidiary Borrower in respect of Unfunded Ancillary Credit Extensions
under such terminated Ancillary Facility. Such Global Revolving Facility Lender
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account; provided that, on the CAM Exchange Date, the
Administrative Agent shall assume exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be made at the option
and sole discretion of (i) for so long as an Event of Default shall be continuing,
the applicable Global Revolving Facility Lender and (ii) at any other time, the
applicable Eligible Borrower, in each case, in Permitted Investments and at the
risk and expense of such Eligible Borrower, 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 applicable Global Revolving Facility
Lender to offset amounts payable in respect of Unfunded Ancillary Credit Extensions
made under such terminated Ancillary Facility. In the event that after the
Ancillary Facility Termination Date for an Ancillary Facility but prior to the CAM
Exchange Date, an Unfunded Ancillary Credit Extension made under such terminated
Ancillary Facility shall expire without requiring payment, the portion of the cash
collateral deposited hereunder with respect to such expired Unfunded Ancillary
Credit Extension shall be distributed to the applicable Eligible Borrower.



     (f) Cancelation by Foreign Subsidiary Borrower. The Foreign Subsidiary Borrower to which an
Ancillary Facility has been made available shall be permitted at any time to request the
cancelation of all or a portion of such Ancillary Facility by delivery of a notice in writing to
the Administrative Agent and the applicable Ancillary Lender, specifying the Ancillary Facility to
be canceled and the proposed cancelation









 



94



date. Such notice shall be delivered not less than five Business Days prior to the proposed
cancelation date. Such cancelation shall be effective as of the proposed cancelation date unless
the Ancillary Facility Exposure under such Ancillary Facility has not been reduced to zero as of
such date.



     (g) Additional Information. Each Ancillary Lender shall report in writing to the
Administrative Agent and the U.S. Borrower on the first Business Day of each fiscal quarter (i) the
Ancillary Facility Exposure for each day during the preceding fiscal quarter for each Ancillary
Facility under which it is an Ancillary Lender and (ii) the portion (expressed in Dollars) of its
Ancillary Commitment that was unused on each day during the preceding fiscal quarter for each
Ancillary Facility under which it is an Ancillary Lender. In addition, each Foreign Subsidiary
Borrower to which an Ancillary Facility has been made available and each Ancillary Lender shall,
upon request by the Administrative Agent or U.S. Borrower, promptly supply the Administrative Agent
or U.S. Borrower, as applicable, with any information relating to the operation of such Ancillary
Facility (including the Ancillary Facility Exposure) as the Administrative Agent or U.S. Borrower,
as applicable, may reasonably request.



     (h) Conflict with Loan Documents. In the event of any conflict between the terms of an
Ancillary Facility Document and any other Loan Document (other than an Ancillary Facility
Document), the terms of such other Loan Document shall govern.



     (i) Termination and Expiration of Ancillary Commitments. On each date on which an Ancillary
Facility expires, is terminated or is canceled (in whole or in part), the Available Unused
Commitment of the Ancillary Lender under such Ancillary Facility shall be increased by an amount
equal to the portion of such Ancillary Facility that has expired or been canceled, unless the
Global Revolving Facility Commitments shall have been previously terminated.



     (j) Effect of Restatement Transactions on Existing Ancillary Facilities. With respect to
each Existing Ancillary Facility that is outstanding at the Effective Funding Time:




     (i) to the extent such Existing Ancillary Facility was provided by an
Existing Global Revolving Facility Lender that will have a Global Revolving
Facility Commitment, such Existing Ancillary Facility shall remain outstanding
after the Effective Funding Time as an Ancillary Facility under this Agreement;
provided that if, at the Effective Funding Time, the Existing Ancillary Commitment
of such Lender with respect to such Ancillary Facility exceeds the Available Unused
Commitment of such Lender, such Ancillary Facility shall be automatically reduced
by the amount of such excess (with any required repayment of Existing Ancillary
Credit Extensions as a result of such reduction being financed with the proceeds of
an Ancillary Replacement Borrowing under the Global Revolving Credit Facility at
the Effective Funding Time); and









 



95



     (ii) to the extent such Existing Ancillary Facility was provided by a Global
Revolving Facility Lender that will not have a Global Revolving Facility
Commitment, such Existing Ancillary Facility shall be automatically terminated
(with any required repayment of Existing Ancillary Credit Extensions as a result of
such termination being financed with the proceeds of a new Ancillary Facility
provided by a Global Revolving Facility Lender pursuant to this Section 2.22 or the
proceeds of an Ancillary Replacement Borrowing under the Global Revolving Credit
Facility at the Effective Funding Time).



     (k) Increase in Ancillary Commitments at Effective Funding Time. With respect to any
Existing Ancillary Facility outstanding at the Effective Funding Time that will remain outstanding
as an Ancillary Facility hereunder after the Effective Funding Time pursuant to clause (j)(i)
above, the applicable Global Revolving Facility Lender and Foreign Subsidiary Borrower may elect to
increase the Ancillary Commitment with respect to such Ancillary Facility; provided that, after
giving effect thereto, (i) the total Ancillary Commitments do not exceed the Ancillary Commitment
Limit and (ii) the Ancillary Commitment of such Global Revolving Facility Lender does not exceed
the Available Unused Commitment of such Global Revolving Facility Lender. Any increase in the
Ancillary Commitment with respect to any Existing Ancillary Facility remaining outstanding as an
Ancillary Facility hereunder after the Effective Funding Time shall be considered an amendment of
such Ancillary Facility subject to the terms of paragraph (c) above.



     SECTION 2.23. Incremental Extensions of Credit. At any time after the Effective Funding
Time, subject to the terms and conditions set forth herein, the Borrowers may from time to time, by
notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a
copy of such notice to each of the Lenders), request to add additional term loans (the “Incremental
Extensions of Credit”) in minimum Dollar Equivalent principal amounts of $50,000,000; provided that
immediately prior to and after giving effect to any Incremental Facility Amendment (as defined
below), (a) no Default or Event of Default has occurred and is continuing or shall result therefrom
and (b) on a Pro Forma Basis, as of the last day of the most recently ended fiscal quarter of the
U.S. Borrower for which financial statements have been delivered pursuant to Section 5.04, the U.S.
Borrower and the Subsidiaries shall be in compliance with the covenants contained in Section 6.11
and 6.12. The Incremental Extensions of Credit (a) shall be in an aggregate principal amount not
exceeding $600,000,000, (b) shall rank pari passu or junior in right of payment and
right of security in respect of the Collateral with the Term Loans and (c) other than amortization,
pricing and maturity date, shall have terms substantially similar to those with respect to (1) in
the case of Incremental Extensions of Credit in the form of a tranche A facility, the Tranche A-1
Term Loans and (2) in the case of Incremental Extensions of Credit in the form of a tranche B
facility, the Tranche B-1 Term Loans, in each case as in effect immediately prior to the
effectiveness of the applicable Incremental Facility Amendment; provided that (i) the Incremental
Extensions of Credit in the form of a tranche A facility shall not have a final maturity date
earlier than the Tranche A-1 Maturity Date and the Incremental Extensions of Credit in the form of
a tranche B facility shall not have a final maturity date earlier than the Tranche B-









 



96

1 Maturity Date, (ii) the Incremental Extensions of Credit in the form of a tranche A facility
shall not have a weighted average life that is shorter than that of the then-remaining weighted
average life of the Tranche A-1 Term Loans and the Incremental Extensions of Credit in the form of
a tranche B facility shall not have a weighted average life that is shorter than that of the
then-remaining weighted average life of the Tranche B-1 Term Loans and (iii) Incremental Extensions
of Credit may be funded in Dollars, Euros or Sterling (as agreed by the Lenders under the
applicable Incremental Facility Amendment). Any Person that elects to extend Incremental
Extensions of Credit shall be reasonably satisfactory to the applicable Borrower and the
Administrative Agent (any such Person being called an “Additional Lender”) and shall become a
Lender under this Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) to this
Agreement, giving effect to the modifications permitted by this Section 2.23, and, as appropriate,
the other Loan Documents, executed by the applicable Borrower, each Additional Lender and the
Administrative Agent. Commitments in respect of Incremental Extensions of Credit shall be
Commitments under this Agreement. An Incremental Facility 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 opinion of the Administrative Agent, to effect the provisions of
this Section 2.23. The effectiveness of any Incremental Facility Amendment shall be subject to the
satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the
conditions set forth in Section 4.02 (it being understood that all references to “the date of such
Borrowing” in such Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date).
The proceeds of the Incremental Extensions of Credit shall be used for general corporate purposes
of the Borrower and the Subsidiaries.




ARTICLE III




Representations and Warranties




     Each of Holdings, Intermediate Holdings and the Borrowers represents and warrants to each of
the Lenders that:



     SECTION 3.01. Organization; Powers. Except as set forth on Schedule 3.01, each of Holdings,
Intermediate Holdings, the U.S. Borrower and each of the Subsidiaries (a) is a partnership, limited
liability company or corporation duly organized, validly existing and in good standing (or, if
applicable in a foreign jurisdiction, enjoys the equivalent status under the laws of any
jurisdiction of organization outside the United States) under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to own its property and assets and to carry
on its business as now conducted, (c) is qualified to do business in each jurisdiction where such
qualification is required, except where the failure so to qualify could not reasonably be expected
to have a Material Adverse Effect, and (d) has the power and authority to execute, deliver and
perform its obligations under each of the Loan Documents and each other agreement or instrument
contemplated thereby to which it is or will be a party and, in the case of each Borrower, to borrow
and otherwise obtain credit hereunder.









 



97


     SECTION 3.02. Authorization. The execution, delivery and performance by Holdings,
Intermediate Holdings, the U.S. Borrower, and each of the Subsidiaries of each of the Loan
Documents to which it is a party, and the borrowings hereunder and the transactions forming a part
of the Restatement Transactions (a) have been duly authorized by all corporate, stockholder,
limited liability company or partnership action required to be obtained by Holdings, Intermediate
Holdings, the U.S. Borrower and such Subsidiaries and (b) will not (i) violate (A) any provision of
law, statute, rule or regulation, or of the certificate or articles of incorporation or other
constitutive documents or by-laws of Holdings, Intermediate Holdings, the U.S. Borrower or any such
Subsidiary, (B) any applicable order of any court or any rule, regulation or order of any
Governmental Authority or (C) any provision of any indenture, certificate of designation for
preferred stock, agreement or other instrument to which Holdings, Intermediate Holdings, the U.S.
Borrower or any such Subsidiary is a party or by which any of them or any of their property is or
may be bound, (ii) be in conflict with, result in a breach of or constitute (alone or with notice
or lapse of time or both) a default under, give rise to a right of or result in any cancelation or
acceleration of any right or obligation (including any payment) or to a loss of a material benefit
under any such indenture, certificate of designation for preferred stock, agreement or other
instrument, where any such conflict, violation, breach or default referred to in clause (i) or (ii)
of this Section 3.02, could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, or (iii) result in the creation or imposition of any Lien upon or with
respect to any property or assets now owned or hereafter acquired by Holdings, Intermediate
Holdings, the U.S. Borrower or any such Subsidiary, other than the Liens created by the Loan
Documents.



     SECTION 3.03. Enforceability. This Agreement has been duly executed and delivered by
Holdings, Intermediate Holdings and each Borrower and constitutes, and each other Loan Document
when executed and delivered by each Loan Party that is party thereto will constitute, a legal,
valid and binding obligation of such Loan Party enforceable against each such Loan Party in
accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium,
reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally,
(ii) general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing.



     SECTION 3.04. Governmental Approvals. No action, consent or approval of, registration or
filing with or any other action by any Governmental Authority is or will be required in connection
with the Restatement Transactions, except for (a) the filing of Uniform Commercial Code financing
statements, (b) recordation of amendments to the Mortgages, (c) such as have been made or obtained
and are in full force and effect, (d) such actions, consents and approvals the failure to be
obtained or made which could not reasonably be expected to have a Material Adverse Effect and (e)
filings or other actions listed on Schedule 3.04.



     SECTION 3.05. Financial Statements. The U.S. Borrower has heretofore furnished to the
Lenders combined balance sheets and combined statements of income, cash flows and owners’ equity of
Holdings and its subsidiaries as of and for the fiscal years ended December 31, 2004, December 31,
2005 and December 31, 2006, audited by









 



98



and accompanied by the opinion of Ernst & Young LLP, independent public accountants. Such
financial statements present fairly, in all material respects, the financial position and results
of operations of Holdings and subsidiaries as of such dates and for such periods. None of
Holdings, Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries has or shall have as
of the Restatement Effective Date any Guarantee, contingent liability or liability for Taxes, or
any long-term lease or unusual forward or long-term commitment, including any interest rate or
foreign currency hedging transaction, that individually is material and is not reflected in the
foregoing statements or the notes thereto, other than pursuant to the Loan Documents. Such
financial statements were prepared in accordance with GAAP.



     SECTION 3.06. No Material Adverse Change or Material Adverse Effect. Since December 31,
2006, there has been no material adverse change (or occurrence that is reasonably likely to have a
material adverse change) in the business, operations, properties, assets or financial condition of
the U.S. Borrower and the Subsidiaries, taken as a whole.



     SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of Holdings,
Intermediate Holdings, the U.S. Borrower and the Subsidiaries has good and marketable title to, or
valid leasehold interests in, or easements or other limited property interests in, all its
properties and assets (including all Mortgaged Properties), except for minor defects in title that
do not interfere with its ability to conduct its business as currently conducted or to utilize such
properties and assets for their intended purposes and except where the failure to have such title
could not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect. All such properties and assets are free and clear of Liens, other than Liens expressly
permitted by Section 6.02 or arising by operation of law.



     (b) Each of Holdings, Intermediate Holdings, the U.S. Borrower and the Subsidiaries has
complied with all obligations under all leases to which it is a party, except where the failure to
comply would not have a Material Adverse Effect, and all such leases are in full force and effect,
except leases in respect of which the failure to be in full force and effect could not reasonably
be expected to have a Material Adverse Effect. Each of Holdings, Intermediate Holdings, the U.S.
Borrower and each of the Subsidiaries enjoys peaceful and undisturbed possession under all such
leases, other than leases in respect of which the failure to enjoy peaceful and undisturbed
possession could not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.



     (c) Each of Holdings, Intermediate Holdings, the U.S. Borrower and the Subsidiaries owns or
possesses, or could obtain ownership or possession of, on terms not materially adverse to it, all
patents, trademarks, service marks, trade names, copyrights, licenses and rights with respect
thereto necessary for the present conduct of its business, without any known conflict with the
rights of others, and free from any burdensome restrictions, except where such conflicts and
restrictions could not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.









 



99


     (d) As of the Restatement Effective Date, none of Holdings, Intermediate Holdings, the U.S.
Borrower and the Subsidiaries has received any notice of any pending or contemplated condemnation
proceeding affecting any of the Mortgaged Properties or any sale or disposition thereof in lieu of
condemnation that remains unresolved as of the Restatement Effective Date.



     (e) None of Holdings, Intermediate Holdings, the U.S. Borrower and the Subsidiaries is
obligated on the Restatement Effective Date under any right of first refusal, option or other
contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest
therein, except as permitted under Section 6.02 or 6.05.



     SECTION 3.08. Subsidiaries. (a) As of the Restatement Effective Date, and after giving
effect to the Restatement Transactions, Holdings will have no subsidiaries other than Intermediate
Holdings, the U.S. Borrower and the Subsidiaries.



     (b) Schedule 3.08(b) sets forth as of the Restatement Effective Date the name and
jurisdiction of incorporation, formation or organization of each Subsidiary and, as to each such
Subsidiary, the percentage of each class of Equity Interests owned by the U.S. Borrower or by any
such Subsidiary.



     (c) As of the Restatement Effective Date, there are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than stock options granted to
employees or directors and directors’ qualifying shares) of any nature relating to any Equity
Interests of Holdings, Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries, except
under the Loan Documents, rights of employees to purchase Equity Interests of Holdings in
connection with the Transactions or as set forth on Schedule 3.08(c).



     SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth on Schedule 3.09,
there are no actions, suits or proceedings at law or in equity or by or before any Governmental
Authority or in arbitration now pending or, to the knowledge of Holdings or the U.S. Borrower,
threatened in writing against or affecting Holdings, Intermediate Holdings, the U.S. Borrower or
any of the Subsidiaries or any business, property or rights of any such person (i) that involve any
Loan Document or the Transactions or (ii) as to which an adverse determination is reasonably
probable and which could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or materially adversely affect the Transactions.



     (b) None of Holdings, Intermediate Holdings, the U.S. Borrower, the Subsidiaries and their
respective properties or assets is in violation of (nor will the continued operation of their
material properties and assets as currently conducted violate) any law, rule or regulation
(including any zoning, building, Environmental Law, ordinance, code or approval or any building
permit) or any restriction of record or agreement affecting any Mortgaged Property, or is in
default with respect to any judgment, writ, injunction or decree of any Governmental Authority,
where such









 



100



violation or default could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.



     SECTION 3.10. Federal Reserve Regulations. (a) None of Holdings, Intermediate Holdings, the
U.S. Borrower and the Subsidiaries is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose of purchasing or carrying Margin Stock.



     (b) No part of the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend
credit to others for the purpose of purchasing or carrying Margin Stock or to refund indebtedness
originally incurred for such purpose, or (ii) for any purpose that entails a violation of, or that
is inconsistent with, the provisions of the Regulations of the Board, including Regulation U or
Regulation X.



     SECTION 3.11. Investment Company Act. None of Holdings, Intermediate Holdings, the U.S.
Borrower and the Subsidiaries is an “investment company” as defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended.



     SECTION 3.12. Use of Proceeds. The Borrowers will use the proceeds of the Tranche A-1 Term
Loans, the Tranche B-1 Term Loans and the Revolving Loans made at the Effective Funding Time to
repay all obligations outstanding at the Effective Funding Time in respect of the Tranche A Term
Loans, the Tranche B Term Loans, the Tranche B-2 Term Loans, the Tranche E Term Loans, the Existing
Revolving Loans and the Existing Swingline Loans, and to pay fees and expenses in connection with
the Restatement Transactions. The Borrowers will use the proceeds of the Revolving Loans (other
than the Revolving Loans made at the Effective Funding Time) and Swingline Loans and will request
the issuance of Letters of Credit solely for general corporate purposes.



     SECTION 3.13. Tax Returns. Each of Holdings, Intermediate Holdings, the U.S. Borrower and
the Subsidiaries has timely filed or caused to be timely filed all federal, and all material state
and local, Tax returns (and, in the case of a Foreign Subsidiary, except as provided in Schedule
3.13, all material Tax returns required to be filed in the jurisdiction in which such Foreign
Subsidiary is organized) required to have been filed by it and has paid or caused to be paid all
material Taxes shown thereon to be due and payable by it and all material assessments, except Taxes
or assessments that are being contested in good faith by appropriate proceedings in accordance with
Section 5.03 and for which Holdings, Intermediate Holdings, the U.S. Borrower or a Subsidiary has
set aside on its books adequate reserves. Each of Holdings, Intermediate Holdings, the U.S.
Borrower and the Subsidiaries has paid in full or made adequate provision (in accordance with GAAP)
for the payment of all Taxes due with respect to all periods ending on or before the Restatement
Effective Date, which Taxes, if not paid or adequately provided for, could reasonably be expected
to have a Material Adverse Effect. Except as set forth on Schedule 3.13, as of the Restatement
Effective Date, with respect to each of Holdings, Intermediate Holdings, the U.S. Borrower and the
Subsidiaries, (a) no material claims are being asserted in writing with respect to any Taxes, (b)
to the best of such party’s knowledge, no presently effective waivers or extensions of statutes of
limitation with









 



101



respect to Taxes have been given or requested, (c) no Tax returns are being examined by, and
no written notification of intention to examine has been received from, the Internal Revenue
Service or, with respect to any material potential Tax liability, any other Governmental Authority
and (d) except as are being contested in good faith by appropriate proceedings in accordance with
Section 5.03 and for which Holdings, Intermediate Holdings, the U.S. Borrower or a Subsidiary has
set aside on its books adequate reserves, no currently pending issues have been raised in writing
by the Internal Revenue Service or any other Governmental Authority with respect to any material
potential Tax liability.



     SECTION 3.14. No Material Misstatements. (a) All written information (other than the
Projections, estimates and information of a general economic nature) (the “Information”) concerning
Holdings, Intermediate Holdings, the U.S. Borrower, the Subsidiaries, the Restatement Transactions
and any other transactions contemplated hereby included in the Lenders’ Presentation or otherwise
prepared by or on behalf of the foregoing or their representatives and made available to any
Lenders or the Administrative Agent in connection with the Restatement Transactions or the other
transactions contemplated hereby, when taken as a whole, were true and correct in all material
respects as of the date thereof, as of the date such Information was first furnished to the Lenders
and as of the Restatement Effective Date and did not contain any untrue statement of a material
fact as of any such date or omit to state a material fact necessary in order to make the statements
contained therein not materially misleading in light of the circumstances under which such
statements were made.



     (b) The Projections and estimates prepared by or on behalf of the U.S. Borrower or any of its
representatives and that have been made available to any Lenders or the Administrative Agent in
connection with the Restatement Transactions or the other transactions contemplated hereby (i) have
been prepared in good faith based upon assumptions believed by the U.S. Borrower to be reasonable
as of the date thereof, as of the date such Projections and estimates were first furnished to the
Lenders and as of the Restatement Effective Date, and (ii) as of the Restatement Effective Date,
have not been modified in any material respect by the U.S. Borrower.



     SECTION 3.15. Employee Benefit Plans. (a) Each of the Borrowers, Holdings, Intermediate
Holdings, the Subsidiaries and the ERISA Affiliates is in compliance with the applicable provisions
of ERISA and the provisions of the Code relating to Plans and Multiemployer Plans and the
regulations and published interpretations thereunder and any similar applicable non-U.S. law,
except for such noncompliance that could not reasonably be expected to have a Material Adverse
Effect. No Reportable Event has occurred during the past five years as to which the Borrowers,
Holdings, Intermediate Holdings, any Subsidiary or any ERISA Affiliate was required to file a
report with the PBGC, other than reports that have been filed and reports the failure of which to
file could not reasonably be expected to have a Material Adverse Effect. As of the Restatement
Effective Date, the excess of the present value of all benefit liabilities under each Plan of the
Borrowers, Holdings, Intermediate Holdings, the Subsidiaries and the ERISA Affiliates (based on
those assumptions used to fund such Plan), as of the last annual valuation date applicable thereto
for which a valuation is available, over the value of the assets of such Plan could not reasonably
be expected to have a Material Adverse









 



102



Effect, and the excess of the present value of all benefit liabilities of all underfunded
Plans (based on those assumptions used to fund each such Plan) as of the last annual valuation
dates applicable thereto for which valuations are available, over the value of the assets of all
such underfunded Plans could not reasonably be expected to have a Material Adverse Effect. None of
the Borrowers, Holdings, Intermediate Holdings, the Subsidiaries and the ERISA Affiliates has
incurred or could reasonably be expected to incur any Withdrawal Liability that could reasonably be
expected to have a Material Adverse Effect. None of the Borrowers, Holdings, Intermediate
Holdings, the Subsidiaries and the ERISA Affiliates has received any written notification that any
Multiemployer Plan is in reorganization (or, after the effectiveness of Title II of the Pension
Act, that it is in endangered or critical status, within the meaning of Section 305 of ERISA) or
has been terminated within the meaning of Title IV of ERISA, or has knowledge that any
Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, where such
reorganization or termination has had or could reasonably be expected to have, through increases in
the contributions required to be made to such Plan or otherwise, a Material Adverse Effect.



     (b) Each of Holdings, Intermediate Holdings, the U.S. Borrower and the Subsidiaries is in
compliance (i) with all applicable provisions of law and all applicable regulations and published
interpretations thereunder with respect to any employee pension benefit plan or other employee
benefit plan governed by the laws of a jurisdiction other than the United States and (ii) with the
terms of any such plan, except, in each case, for such noncompliance that could not reasonably be
expected to have a Material Adverse Effect.



     SECTION 3.16. Environmental Matters. Except for the matters that could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect, neither the U.S.
Borrower 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) is subject to, or responsible for, any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental Liability or (iv) knows of any facts
or circumstances that would reasonably be expected to result in any Environmental Liability.



     SECTION 3.17. Security Documents. (a) The U.S. Collateral Agreement is effective to create
in favor of the Collateral Agent (for the benefit of the Secured Parties) a legal, valid and
enforceable security interest in the Collateral described therein and proceeds thereof. In the
case of the Pledged Collateral described in the U.S. Collateral Agreement, when certificates or
promissory notes, as applicable, representing such Pledged Collateral are delivered to the
Collateral Agent, and in the case of the other Collateral described in the U.S. Collateral
Agreement (other than the Intellectual Property (as defined in the U.S. Collateral Agreement)),
when financing statements and other filings specified on Schedule 3 of the U.S. Perfection
Certificate in appropriate form are filed in the offices specified on Schedule 5 of the U.S.
Perfection Certificate, the Collateral Agent (for the benefit of the Secured Parties) shall have a
fully perfected Lien on, and security interest in, all right, title and interest of the Loan
Parties in such Collateral and, subject to Section 9-315 of the New York Uniform Commercial Code,
the proceeds thereof, as security for the Obligations to the extent perfection can be obtained by
filing Uniform









 



103



Commercial Code financing statements, in each case prior and superior in right to any other
person (except, in the case of Collateral other than Pledged Collateral, Liens expressly permitted
by Section 6.02(a) and Liens having priority by operation of law).



     (b) When the U.S. Collateral Agreement or a summary thereof is properly filed in the United
States Patent and Trademark Office and the United States Copyright Office, and, with respect to
Collateral in which a security interest cannot be perfected by such filings, upon the proper filing
of the financing statements referred to in paragraph (a) above, the Collateral Agent (for the
benefit of the Secured Parties) shall have a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties thereunder in the Intellectual Property, in each case
prior and superior in right to any other Person (it being understood that subsequent recordings in
the United States Patent and Trademark Office and the United States Copyright Office may be
necessary to perfect a lien on registered trademarks and patents, trademark and patent applications
and registered copyrights acquired by the grantors after the Restatement Effective Date).



     (c) Each Foreign Pledge Agreement and each Foreign Security Agreement is effective to create
in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds thereof. In the
case of the Pledged Collateral described in a Foreign Pledge Agreement, when certificates or
promissory notes, as applicable, representing such Pledged Collateral are delivered to the
Collateral Agent, and, in the case of the Collateral described in a Foreign Security Agreement,
when filings are made in the appropriate offices in each relevant jurisdiction and the other
actions, if any, specified on such Schedule are taken, the Collateral Agent (for the benefit of the
Secured Parties) shall have a fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the
Obligations described therein, in each case prior and superior in right to any other person
(except, in the case of Collateral other than Pledged Collateral, Liens expressly permitted by
Section 6.02(a) and Liens having priority by operation of law).



     (d) The Mortgages entered into after the Restatement Effective Date pursuant to Section 5.10
shall be effective to create in favor of the Collateral Agent (for the benefit of the Secured
Parties) a legal, valid and enforceable Lien on all of the Loan Parties’ right, title and interest
in and to the Mortgaged Property thereunder and the proceeds thereof, and when such Mortgages are
filed or recorded in the proper real estate filing or recording offices, the Collateral Agent (for
the benefit of the Secured Parties) shall have a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in such Mortgaged Property and, to the extent
applicable, subject to Section 9-315 of the Uniform Commercial Code, the proceeds thereof, in each
case prior and superior in right to any other Person, other than with respect to the rights of a
Person pursuant to Liens expressly permitted by Section 6.02(a) and Liens having priority by
operation of law.



     SECTION 3.18. Location of Real Property and Leased Premises. (a) Schedule 2B to the U.S.
Perfection Certificate and each Foreign Perfection Certificate lists









 



104



completely and correctly as of the Restatement Effective Date all material real property owned
by Holdings, Intermediate Holdings, the U.S. Borrower and the Subsidiary Loan Parties and the
addresses thereof. As of the Restatement Effective Date, Holdings, Intermediate Holdings, the U.S.
Borrower and the Subsidiaries own in fee all the real property set forth as being owned by them on
such Schedules.



     (b) Schedule 2B to the U.S. Perfection Certificate lists completely and correctly as of the
Restatement Effective Date all material real property leased by Holdings, Intermediate Holdings,
the U.S. Borrower and the Domestic Subsidiary Loan Parties and the addresses thereof. As of the
Restatement Effective Date, Holdings, Intermediate Holdings, the U.S. Borrower and the Domestic
Subsidiary Loan Parties have valid leases in all the real property set forth as being leased by
them on such Schedules.



     SECTION 3.19. Solvency. (a) Immediately after giving effect to the Restatement Transactions
(i) the fair value of the assets of each Borrower (individually) and the U.S. Borrower and the
Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities,
direct, subordinated, contingent or otherwise, of each Borrower (individually) and the U.S.
Borrower and the Subsidiaries on a consolidated basis, respectively; (ii) the present fair saleable
value of the property of each Borrower (individually) and the U.S. Borrower and the Subsidiaries on
a consolidated basis will be greater than the amount that will be required to pay the probable
liability of each Borrower (individually) and the U.S. Borrower and the Subsidiaries on a
consolidated basis, respectively, on their debts and other liabilities, direct, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii)
each Borrower (individually) and the U.S. Borrower and the Subsidiaries on a consolidated basis
will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (iv) each Borrower (individually) and
the U.S. Borrower and the Subsidiaries on a consolidated basis will not have unreasonably small
capital with which to conduct the businesses in which they are engaged as such businesses are now
conducted and are proposed to be conducted following the Restatement Effective Date.



     (b) None of Holdings or the Borrowers intend to, and 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 and amounts of cash to be received by it or any such subsidiary and the timing
and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any
such subsidiary.



     SECTION 3.20. Labor Matters. There are no strikes pending or threatened against Holdings,
Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. The hours worked and
payments made to employees of Holdings, Intermediate Holdings, the U.S. Borrower and the
Subsidiaries have not been in violation in any material respect of the Fair Labor Standards Act or
any other applicable law dealing with such matters. All material payments due from Holdings,
Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries or for which any claim may be
made against Holdings, Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries, on
account









 



105



of wages and employee health and welfare insurance and other benefits have been paid or
accrued as a liability on the books of Holdings, Intermediate Holdings, the U.S. Borrower or such
Subsidiary to the extent required by GAAP. Except as set forth on Schedule 3.20, consummation of
the Transactions will not give rise to a right of termination or right of renegotiation on the part
of any union under any collective bargaining agreement to which Holdings, Intermediate Holdings,
the U.S. Borrower or any of the Subsidiaries (or any predecessor) is a party or by which Holdings,
Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries (or any predecessor) is bound,
other than collective bargaining agreements that, individually or in the aggregate, are not
material to Holdings, Intermediate Holdings, the U.S. Borrower and the Subsidiaries, taken as a
whole.



     SECTION 3.21. Insurance. Schedule 3.21 sets forth a true, complete and correct description
of all material insurance maintained by or on behalf of Holdings, Intermediate Holdings, the U.S.
Borrower or the Subsidiaries as of the Restatement Effective Date. As of such date, such insurance
is in full force and effect. The U.S. Borrower believes that the insurance maintained by or on
behalf of Holdings, Intermediate Holdings, the U.S. Borrower and the Subsidiaries is adequate.



ARTICLE IV




Conditions




     SECTION 4.01. Effectiveness of Restated Credit Agreement. (a) This Agreement shall become
effective upon the satisfaction of the following conditions:




     (i) The Administrative Agent (or its counsel) shall have received from each
of Holdings, Intermediate Holdings, the U.S. Borrower, the Foreign Subsidiary
Borrowers party hereto and the Required Restatement Lenders either (A) a
counterpart of this Agreement (a “Lender Addendum”) signed on behalf of such party
or (B) written evidence satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature page of this Agreement) that such party
has signed a Lender Addendum.




     (ii) The Administrative Agent shall have received a favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated the Restatement
Effective Date) of Simpson Thacher & Bartlett LLP, special counsel for Holdings and
the U.S. Borrower, substantially in the form of Exhibit O. Holdings and the U.S.
Borrower hereby request such counsel to deliver such opinion.




     (iii) 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 each Loan Party, the
authorization of the Restatement Transactions and any other legal matters relating
to the Loan Parties, the Loan Documents or the Restatement Transactions, all in
form and









 



106



substance reasonably satisfactory to the Administrative Agent and its counsel.




     (iv) The Administrative Agent shall have received a certificate of a
Responsible Officer of the U.S. Borrower, dated the Restatement Effective Date,
confirming compliance with the conditions precedent set forth in paragraphs (b) and
(c) of Section 4.02.




     (v) The Administrative Agent shall have received all fees and other amounts
due and payable on or prior to the Restatement Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses (including
fees, charges and disbursements of counsel) required to be reimbursed or paid by
any Loan Party hereunder or under any other Loan Document.




     (vi) The Collateral Agent shall have received (i) all documents and
instruments required by law or reasonably requested by the Collateral Agent to be
filed, registered or recorded to create or perfect the Liens intended to be created
under the Security Documents after giving effect to the Restatement Transactions
(other than those described in Section 5.14 hereto), (ii) the results of bring down
searches of the Uniform Commercial Code filings made with respect to the Domestic
Subsidiary Loan Parties and (iii) completed Perfection Certificates, dated the
Restatement Effective Date and signed by a Responsible Officer of the U.S.
Borrower, together with all attachments contemplated thereby.




     (vii) [Reserved].




     (viii) The Collateral Agent shall have received (i) amendments or supplements
to Security Documents set forth on Schedule 4.01 hereto providing that the Tranche
A-1 Term Loans, Tranche B-1 Term Loans and Revolving Loans (in addition to the
other Obligations described therein) shall be secured by a Lien on the Collateral
described therein and (ii) opinions of counsel set forth on Schedule 4.01 hereto.




     (ix) The Administrative Agent shall have received evidence that the insurance
required by Section 5.02 of this Agreement and the Security Documents is in effect.




     (x) A Reaffirmation Agreement substantially in the form of Exhibit P hereto
shall have been delivered by each party thereto.




     (xi) The Administrative Agent shall have received a Borrowing Request in
respect of Tranche A-1 Term Borrowings, Tranche B-1 Term Borrowings and Revolving
Borrowings, which Borrowing Request shall comply with the provisions of Section
2.03 and shall provide for the Borrowings specified therein no later than 5:00
p.m., New York City time, on May 31, 2007.









 



107



     (xii) The Administrative Agent shall have received (A) audited consolidated
balance sheets and related statements of operations, shareholders’ equity and cash
flows of the U.S. Borrower and its subsidiaries for the fiscal years ended December
31, 2006, December 31, 2005, and December 31, 2004, (B) unaudited consolidated
balance sheets and related statements of operations, shareholders’ equity and cash
flows of the U.S. Borrower and its subsidiaries for the fiscal quarter ended after
December 31, 2006, and at least 45 days before the Restatement Effective Date, in
each case prepared in accordance with GAAP (subject, in the case of clause (B), to
normal year-end audit adjustments and the absence of footnotes), and (C) a pro
forma consolidated balance sheet of the U.S. Borrower and its subsidiaries as of
the end of the most recent fiscal quarter ended at least 45 days before the
Restatement Effective Date, after giving effect to the Restatement Transactions and
the other transactions contemplated hereby.




     (xiii) The Administrative Agent shall have received projections of Holdings
and its subsidiaries through the fiscal year ending December 31, 2011, presented on
a quarterly basis through the end of 2007.




     (xiv) The Tranche A-1 Facility, Tranche B-1 Facility, U.S. Revolving Facility
and Global Revolving Facility shall have been rated by each of Moody’s Investors
Service, Inc. and Standard & Poor’s Ratings Group, Inc.




     (xv) The Administrative Agent shall have received all documentation and other
information that is reasonably requested in writing by the Administrative Agent at
least five Business Days prior to the Restatement Effective Date in order to allow
the Administrative Agent to comply with applicable “know your customer” and
anti-money laundering rules and regulations, including the PATRIOT Act (it being
understood that, to the extent not provided on or prior to the Restatement
Effective Date, the Borrowers shall cooperate with the Administrative Agent to
provide all other documentation and other information after the Restatement
Effective Date as reasonably required by other Lenders in order to allow them to
comply with such rules and regulations).




     (xvi) All obligations (including all fees and other amounts) in respect of
the Tranche A Term Loans, Tranche B Term Loans, Tranche B-2 Term Loans, Tranche E
Term Loans, Existing Swingline Loans and Existing Revolving Loans shall have been
paid in full and all Commitments in respect thereof shall have been terminated.



     The Administrative Agent shall notify the U.S. Borrower and the Lenders of the Restatement
Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, (A)
this Agreement shall not become effective unless each of the foregoing conditions is satisfied at
or prior to 5:00 p.m., New York City time,









 



108



on May 31, 2007 (and, in the event such conditions are not so satisfied or waived, the Tranche
A-1 Term Loan Commitments, the Tranche B-1 Term Loan Commitments, the Global Revolving Facility
Commitments and the U.S. Revolving Facility Commitments shall terminate at such time).



          SECTION 4.02. All Credit Events. The obligations of (a) the Lenders (including the Swingline
Lenders) to make Loans and (b) any Issuing Bank to issue Letters of Credit or increase the stated
amounts of Letters of Credit hereunder (each, a “Credit Event”) are subject to the satisfaction of
the conditions that, on the date of each Borrowing (other than an Ancillary Replacement Borrowing)
and on the date of each issuance, amendment, extension or renewal of a Letter of Credit:





     (a) The Administrative Agent shall have received, in the case of a Borrowing, a
Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been
deemed given in accordance with the last paragraph of Section 2.03) or, in the case of the
issuance of a Letter of Credit, the applicable Issuing Bank and the Administrative Agent
shall have received a notice requesting the issuance of such Letter of Credit as required
by Section 2.05(b).




     (b) The representations and warranties set forth in Article III hereof shall be true
and correct in all material respects on and as of the date of such Borrowing or issuance,
amendment, extension or renewal of a Letter of Credit (other than an amendment, extension
or renewal of a Letter of Credit without any increase in the stated amount of such Letter
of Credit), as applicable, with the same effect as though made on and as of such date,
except to the extent such representations and warranties expressly relate to an earlier
date (in which case such representations and warranties shall be true and correct in all
material respects as of such earlier date).




     (c) At the time of and immediately after such Borrowing or issuance, amendment,
extension or renewal of a Letter of Credit (other than an amendment, extension or renewal
of a Letter of Credit without any increase in the stated amount of such Letter of Credit),
as applicable, no Event of Default or Default shall have occurred and be continuing.


Each Borrowing (other than an Ancillary Replacement Borrowing) and each issuance, amendment,
extension or renewal of a Letter of Credit shall be deemed to constitute a representation and
warranty by the applicable Borrower (in the case of a Borrowing) and each Applicant Party (in the
case of a Letter of Credit) on the date of such Borrowing, issuance, amendment, extension or
renewal as applicable, as to the matters specified in paragraphs (b) and (c) of this Section 4.02.




          SECTION 4.03. Credit Events Relating to Foreign Subsidiary Borrowers. The obligations of (x)
the Lenders (including the Swingline Foreign Currency Lenders) to make Loans to any Foreign
Subsidiary that becomes a Foreign Subsidiary Borrower after the Restatement Effective Date, (y) any
Issuing Bank to issue Letters of Credit for the account of any such Foreign Subsidiary Borrower and
(z) any Ancillary Lender to make available an Ancillary Facility to such Foreign Subsidiary
Borrower, in each case to the







 



109




extent designated in accordance with Section 2.20, are subject to the satisfaction of the
following conditions (which are in addition to the conditions contained in Section 4.02):





     (a) With respect to the initial Loan made to, the initial Letter of Credit issued at
the request of, or the creation of an Ancillary Facility for, such Foreign Subsidiary
Borrower, whichever comes first,




     (i) the Administrative Agent (or its counsel) shall have received a Foreign
Subsidiary Borrower Agreement with respect to such Foreign Subsidiary Borrower duly
executed by all parties thereto; and




     (ii) the Administrative Agent shall have received such documents (including
legal opinions) and certificates as the Administrative Agent or its counsel may
reasonably request relating to the formation, existence and good standing of such
Foreign Subsidiary Borrower, the authorization of Borrowings as they relate to such
Foreign Subsidiary Borrower and any other legal matters relating to such Foreign
Subsidiary Borrower or its Foreign Subsidiary Borrower Agreement, all in form and
substance reasonably satisfactory to the Administrative Agent and its counsel.




     (b) The Administrative Agent and the applicable Ancillary Lender, if any, shall be
reasonably satisfied that Section 5.10(f) shall have been complied with in respect of such
Foreign Subsidiary Borrower and that the Collateral and Guarantee Requirement shall have
been satisfied with respect to such Foreign Subsidiary Borrower and its subsidiaries;
provided that the condition set forth in this paragraph (b) need not be satisfied with
respect to any Unsecured Ancillary Facility.



ARTICLE V




Affirmative Covenants




     Each of Holdings, Intermediate Holdings and the Borrowers covenants and agrees with each
Lender that so long as this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all other expenses or
amounts payable under any Loan Document shall have been paid in full and all Letters of Credit have
been canceled or have expired and all amounts drawn thereunder have been reimbursed in full, unless
the Required Lenders shall otherwise consent in writing, each of Holdings, Intermediate Holdings
and the Borrowers will, and will cause each of the ERISA Affiliates and Subsidiaries to:



     SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal existence, except as
otherwise expressly permitted under Section 6.05, and except for the liquidation or dissolution of
Subsidiaries if the assets of such Subsidiaries to the extent they exceed estimated liabilities are
acquired by a Borrower or a Wholly Owned Subsidiary of a Borrower in such liquidation or
dissolution, provided that Subsidiaries that









 



110



are Loan Parties may be liquidated into Subsidiaries that are not Loan Parties only to the
extent that such liquidation is treated as an investment by a Subsidiary Loan Party in a Subsidiary
that is not a Loan Party under Section 6.04(a).



     (b) Do or cause to be done all things necessary to (i) obtain, preserve, renew, extend and
keep in full force and effect the permits, franchises, authorizations, patents, trademarks, service
marks, trade names, copyrights, licenses and rights with respect thereto necessary to the normal
conduct of its business, (ii) comply in all material respects with all material applicable laws,
rules, regulations (including any zoning, building, ordinance, code or approval or any building
permits) or any restrictions of record or agreements affecting the Mortgaged Properties and
judgments, writs, injunctions, decrees and orders of any Governmental Authority, whether now in
effect or hereafter enacted and (iii) at all times maintain and preserve all property necessary to
the normal conduct of its business and keep such property in good repair, working order and
condition and from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order that the business
carried on in connection therewith, if any, may be properly conducted at all times (in each case
except as expressly permitted by this Agreement).



     SECTION 5.02. Insurance. (a) Keep its insurable properties insured at all times by
financially sound and reputable insurers in such amounts as shall be customary for similar
businesses and maintain such other reasonable insurance (including, to the extent consistent with
past practices, self-insurance), of such types, to such extent and against such risks, as is
customary with companies in the same or similar businesses and maintain such other insurance as may
be required by law or any other Loan Document.



     (b) Cause all such property and casualty insurance policies with respect to the Mortgaged
Properties to be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss
payable endorsement, in form and substance reasonably satisfactory to the Administrative Agent and
the Collateral Agent, which endorsement shall provide that, from and after the Restatement
Effective Date, if the insurance carrier shall have received written notice from the Administrative
Agent or the Collateral Agent of the occurrence of an Event of Default, the insurance carrier shall
pay all proceeds otherwise payable to the U.S. Borrower or the Loan Parties under such policies
directly to the Collateral Agent; cause all such policies to provide that neither the U.S.
Borrower, the Administrative Agent, the Collateral Agent nor any other party shall be a coinsurer
thereunder and to contain a “Replacement Cost Endorsement”, without any deduction for depreciation,
and such other provisions as the Administrative Agent or the Collateral Agent may reasonably (in
light of a Default or a material development in respect of the insured Mortgaged Property) require
from time to time to protect their interests; deliver original or certified copies of all such
policies or a certificate of an insurance broker to the Collateral Agent; cause each such policy to
provide that it shall not be canceled, modified or not renewed upon less than 30 days’ prior
written notice thereof by the insurer to the Administrative Agent and the Collateral Agent; deliver
to the Administrative Agent and the Collateral Agent, prior to the cancelation, modification or
nonrenewal of any such policy of insurance, a copy of a renewal or replacement policy (or other
evidence of renewal of a policy previously delivered to the Administrative









 



111



Agent and the Collateral Agent), or insurance certificate with respect thereto, together with
evidence satisfactory to the Administrative Agent and the Collateral Agent of payment of the
premium therefor.



     (c) If at any time the area in which the Premises (as defined in the Mortgages) are located
is designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal
Emergency Management Agency (or any successor agency), obtain flood insurance in such reasonable
total amount as the Administrative Agent or the Collateral Agent may from time to time reasonably
require, and otherwise comply with the National Flood Insurance Program as set forth in the Flood
Disaster Protection Act of 1973, as it may be amended from time to time.



     (d) With respect to each Mortgaged Property, carry and maintain comprehensive general
liability insurance including the “broad form CGL endorsement” and coverage on an occurrence basis
against claims made for personal injury (including bodily injury, death and property damage) and
umbrella liability insurance against any and all claims, in each case in amounts and against such
risks as are customarily maintained by companies engaged in the same or similar industry operating
in the same or similar locations naming the Collateral Agent as an additional insured, on forms
reasonably satisfactory to the Collateral Agent.



     (e) Notify the Administrative Agent and the Collateral Agent promptly whenever any separate
insurance concurrent in form or contributing in the event of loss with that required to be
maintained under this Section 5.02 is taken out by Holdings, Intermediate Holdings, the U.S.
Borrower or any of the Subsidiaries; and promptly deliver to the Administrative Agent and the
Collateral Agent a duplicate original copy of such policy or policies, or an insurance certificate
with respect thereto.



     (f) In connection with the covenants set forth in this Section 5.02, it is understood and
agreed that:




     (i) none of the Agents, the Lenders, the Issuing Bank and their respective
agents or employees shall be liable for any loss or damage insured by the insurance
policies required to be maintained under this Section 5.02, it being understood
that (A) the U.S. Borrower and the other Loan Parties shall look solely to their
insurance companies or any other parties other than the aforesaid parties for the
recovery of such loss or damage and (B) such insurance companies shall have no
rights of subrogation against the Agents, the Lenders, any Issuing Bank or their
agents or employees. If, however, the insurance policies do not provide waiver of
subrogation rights against such parties, as required above, then each of Holdings,
Intermediate Holdings and the U.S. Borrower hereby agree, to the extent permitted
by law, to waive, and to cause each of the Subsidiaries to waive, its right of
recovery, if any, against the Agents, the Lenders, any Issuing Bank and their
agents and employees; and









 



112



     (ii) the designation of any form, type or amount of insurance coverage by the
Administrative Agent or the Collateral Agent under this Section 5.02 shall in no
event be deemed a representation, warranty or advice by the Administrative Agent,
the Collateral Agent or the Lenders that such insurance is adequate for the
purposes of the business of Holdings, Intermediate Holdings, the U.S. Borrower and
the Subsidiaries or the protection of their properties.



     SECTION 5.03. Taxes. Pay and discharge promptly when due all material Taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or in respect of its
property, before the same shall become delinquent or in default, as well as all lawful claims for
labor, materials and supplies or otherwise that, if unpaid, might give rise to a Lien upon such
properties or any part thereof; provided, however, that such payment and discharge shall not be
required with respect to any such Tax, assessment, charge, levy or claim so long as the validity or
amount thereof shall be contested in good faith by appropriate proceedings, and Holdings,
Intermediate Holdings, the U.S. Borrower or the affected Subsidiary, as applicable, shall have set
aside on its books reserves in accordance with GAAP with respect thereto and such contest
effectively suspends collection of the contested obligation and the enforcement of any Lien
securing such obligation.









 



113


     SECTION 5.04. Financial Statements, Reports, etc. Furnish to the Administrative Agent (which
will furnish such information to the Lenders):



     (a) within 90 days (or such shorter period as the SEC shall specify for the filing of Annual
Reports on Form 10-K) after the end of each fiscal year, a consolidated balance sheet and related
statements of operations, cash flows and owners’ equity showing the financial position of the U.S.
Borrower and the Subsidiaries as of the close of such fiscal year and the consolidated results of
their operations during such year, all audited by independent public accountants of recognized
national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion
of such accountants (which shall not be qualified in any material respect) to the effect that such
consolidated financial statements fairly present, in all material respects, the financial position
and results of operations of the U.S. Borrower and the Subsidiaries on a consolidated basis in
accordance with GAAP (it being understood that the delivery by the U.S. Borrower of Annual Reports
on Form 10-K of the U.S. Borrower and its consolidated Subsidiaries shall satisfy the requirements
of this Section 5.04(a) to the extent such Annual Reports include the information specified
herein); provided that, in the event that (i) either Holdings or Intermediate Holdings
becomes subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended, and (ii) Holdings or Intermediate Holdings, as applicable, is not engaged in
any business or business activity other than that which is expressly permitted under Section 6.08,
this clause may be satisfied by the provision of consolidated financial statements of Holdings or
Intermediate Holdings, as applicable, in a manner consistent with the other requirements of this
clause, and all references to the U.S. Borrower in this clause shall instead be deemed to be
references to Holdings or Intermediate Holdings, as applicable;



     (b) within 45 days (or such shorter period as the SEC shall specify for the filing of
Quarterly Reports on Form 10-Q) after the end of each of the first three fiscal quarters of each
fiscal year, a consolidated balance sheet and related statements of operations and cash flows
showing the financial position of the U.S. Borrower and the Subsidiaries as of the close of such
fiscal quarter and the consolidated results of their operations during such fiscal quarter and the
then-elapsed portion of the fiscal year, all certified by a Financial Officer of the U.S. Borrower,
on behalf of the U.S. Borrower, as fairly presenting, in all material respects, the financial
position and results of operations of the U.S. Borrower and the Subsidiaries on a consolidated
basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of
footnotes) (it being understood that the delivery by the U.S. Borrower of Quarterly Reports on Form
10-Q of the U.S. Borrower and its consolidated subsidiaries shall satisfy the requirements of this
Section 5.04(b) to the extent such Quarterly Reports include the information specified herein);
provided that, in the event that (i) either Holdings or Intermediate Holdings becomes
subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, and (ii) Holdings or Intermediate Holdings, as applicable, is not engaged in any
business or business activity other than that which is expressly permitted under Section 6.08, this
clause may be satisfied by the provision of consolidated financial statements of Holdings or
Intermediate Holdings, as applicable, in a manner consistent with the other requirements




 









 





 114



of this clause, and all references to the U.S. Borrower in this clause shall instead be deemed
to be references to Holdings or Intermediate Holdings, as applicable;




     (c) (x) no later than five Business Days after any delivery of financial statements under (a)
or (b) above, a certificate of a Financial Officer of the U.S. Borrower (i) certifying that no
Event of Default or Default has occurred or, if such an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action taken or proposed to be taken
with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating (A) compliance with the covenants contained in Sections 6.11 and
6.12, and (B) the calculation of the Leverage Ratio as of the end of the applicable fiscal quarter
for purposes of determining the Applicable Margin with respect to each Loan and Commitment Fees
with respect to each Revolving Loan and (y) no later than five Business Days after any delivery of
financial statements under (a) above, a certificate of the accounting firm opining on or certifying
such statements stating whether they obtained knowledge during the course of their examination of
such statements of any Default or Event of Default (which certificate may be limited to accounting
matters and disclaims responsibility for legal interpretations);



     (d) promptly after the same become publicly available, copies of all periodic and other
publicly available reports, proxy statements and, to the extent requested by the Administrative
Agent, other materials filed by Holdings, Intermediate Holdings, the U.S. Borrower or any of the
Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided
that the delivery requirements in this clause (d) shall be deemed satisfied upon the filing of such
materials with the SEC using its Electronic Data Gathering Analysis and Retrieval System or any
successor or system;



     (e) if, as a result of any change in accounting principles and policies from those as in
effect on the Closing Date, the consolidated financial statements delivered pursuant to paragraph
(a) or (b) above will differ in any material respect from the consolidated financial statements
that would have been delivered pursuant to such clauses had no such change in accounting principles
and policies been made, then, together with the first delivery of financial statements pursuant to
paragraph (a) and (b) above following such change, a schedule prepared by a Financial Officer on
behalf of Holdings, Intermediate Holdings or the U.S. Borrower, as applicable, reconciling such
changes to what the financial statements would have been without such changes;



     (f) upon the reasonable request of the Administrative Agent, deliver updated Perfection
Certificates (or, to the extent such request relates to specified information contained in the
Perfection Certificates, such information) reflecting all changes since the date of the information
most recently received pursuant to this paragraph (f), Section 4.01(a)(vi) or Section 5.10(e);



     (g) promptly, a copy of all reports submitted to the Board of Directors (or any committee
thereof) of any of Holdings, Intermediate Holdings, the U.S. Borrower or any Subsidiary in
connection with any material interim or special audit made by









 



115



independent accountants of the books of Holdings, Intermediate Holdings, the U.S. Borrower or
any Subsidiary; and



     (h) promptly, from time to time, such other information regarding the operations, business
affairs and financial condition of Holdings, Intermediate Holdings, the U.S. Borrower or any of the
Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial
statements, as in each case the Administrative Agent may reasonably request.



     SECTION 5.05. Litigation and Other Notices. Furnish to the Administrative Agent written
notice of the following promptly after any Responsible Officer of the U.S. Borrower obtains actual
knowledge thereof:



     (a) any Event of Default or Default, specifying the nature and extent thereof and the
corrective action (if any) proposed to be taken with respect thereto;



     (b) the filing or commencement of, or any written threat or notice of intention of any person
to file or commence, any action, suit or proceeding, whether at law or in equity or by or before
any Governmental Authority or in arbitration, against Holdings, Intermediate Holdings, the U.S.
Borrower or any of the Subsidiaries as to which an adverse determination is reasonably probable and
which could reasonably be expected to have a Material Adverse Effect;



     (c) any other development specific to Holdings, Intermediate Holdings, the U.S. Borrower or
any of the Subsidiaries that is not a matter of general public knowledge and that has had, or could
reasonably be expected to have, a Material Adverse Effect; and



     (d) the occurrence of any ERISA Event, that together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of Holdings, Intermediate Holdings,
the U.S. Borrower, the Subsidiaries and all ERISA Affiliates in an aggregate amount in excess of
$60,000,000.



     SECTION 5.06. Compliance with Laws. Comply with all laws, rules, regulations and orders of
any Governmental Authority applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect; provided that this Section 5.06 shall not apply to Environmental Laws, which are the
subject of Section 5.09, or to laws related to Taxes, which are the subject of Section 5.03.



     SECTION 5.07. Maintaining Records; Access to Properties and Inspections. Maintain all
financial records in accordance with GAAP and permit any persons designated by the Agents or, upon
the occurrence and during the continuance of an Event of Default, any Lender to visit and inspect
the financial records and the properties of Holdings, Intermediate Holdings, the U.S. Borrower or
any of the Subsidiaries at reasonable times, upon reasonable prior notice to Holdings, Intermediate
Holdings, or the U.S. Borrower, and as often as reasonably requested and to make extracts from and
copies of such financial records, and permit any persons designated by the Agents or, upon the
occurrence and during the continuance of an Event of Default, any Lender upon reasonable









 



116



prior notice to Holdings, Intermediate Holdings or the U.S. Borrower to discuss the affairs,
finances and condition of Holdings, Intermediate Holdings, the U.S. Borrower or any of the
Subsidiaries with the officers thereof and independent accountants therefor (subject to reasonable
requirements of confidentiality, including requirements imposed by law or by contract).



     SECTION 5.08. Use of Proceeds. Use the proceeds of the Tranche A-1 Term Loans, the Tranche
B-1 Term Loans and the Revolving Loans made at the Effective Funding Time solely to repay all
obligations outstanding at the Effective Funding Time in respect of the Tranche A Term Loans, the
Tranche B Term Loans, the Tranche B-2 Term Loans, the Tranche E Term Loans, the Existing Revolving
Facilities and the Swingline Loans, and to pay fees and expenses in connection with the Restatement
Transactions. Use the proceeds of the Revolving Loans (other than the Revolving Loans made at the
Effective Funding Time) and Swingline Loans and request issuance of Letters of Credit solely for
general corporate purposes. In the case of an Eligible Borrower, use the proceeds of an Ancillary
Replacement Borrowing only for the purposes set forth in Section 2.22(e).



     SECTION 5.09. Compliance with Environmental Laws. Comply, and make reasonable efforts to
cause all lessees and other persons occupying its properties to comply, with all Environmental Laws
applicable to its operations and properties; and obtain and renew all material, authorizations and
permits required pursuant to Environmental Law for its operations and properties; and to conduct
any investigations and/or remediations required by Environmental Laws, except, in each case with
respect to this Section 5.09, to the extent the failure to do so could not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.



     SECTION 5.10. Further Assurances; Additional Mortgages. (a) Execute any and all further
documents, financing statements, agreements and instruments, and take all such further actions
(including the filing and recording of financing statements, fixture filings, Mortgages and other
documents), that may be required under any applicable law, or that the Administrative Agent may
reasonably request, to cause the Collateral and Guarantee Requirement to be and remain satisfied,
all at the expense of the Loan Parties and provide to the Administrative Agent, from time to time
upon reasonable request of the Administrative Agent, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created or intended to be
created by the Security Documents.



     (b) If any asset (including any real property or improvements thereto or any interest
therein) that has an individual fair market value in an amount having a Dollar Equivalent greater
than $10,000,000 is acquired by the U.S. Borrower or any other Loan Party after the Restatement
Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case
other than assets constituting Collateral under a Security Document that become subject to the Lien
of such Security Document upon acquisition thereof), cause such asset to be subjected to a Lien
securing the Obligations and take, and cause the Subsidiary Loan Parties to take, such actions as
shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such
Liens,









 



117



including actions described in paragraph (a) of this Section, all at the expense of the Loan
Parties, subject to paragraph (h) below.



     (c) In the case of the U.S. Borrower, grant and cause each of the Domestic Subsidiary Loan
Parties to grant to the Collateral Agent security interests and mortgages in such real property of
the U.S. Borrower or any such Domestic Subsidiary Loan Parties as are not covered by the original
U.S. Mortgages, to the extent acquired after the Restatement Effective Date and having a value at
the time of acquisition in excess of $10,000,000 pursuant to documentation substantially in the
form of the U.S. Mortgages delivered to the Collateral Agent on the Restatement Effective Date or
in such other form as is reasonably satisfactory to the Collateral Agent (each, an “Additional
Mortgage”) and constituting valid and enforceable perfected Liens superior to and prior to the
rights of all third persons subject to no other Liens except as are expressly permitted by Section
6.02 or arising by operation of law, at the time of perfection thereof, record or file, and cause
each such Subsidiary to record or file, the Additional Mortgage or instruments related thereto in
such manner and in such places as is required by law to establish, perfect, preserve and protect
the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional
Mortgages and pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and other
charges payable in connection therewith, in each case subject to paragraph (h) below.



     (d) If any additional direct or indirect subsidiary of Holdings is formed or acquired after
the Restatement Effective Date if such subsidiary is a Domestic Subsidiary Loan Party, within five
Business Days after the date such subsidiary is formed or acquired, notify the Administrative Agent
and the Lenders thereof and, within 20 Business Days after the date such subsidiary is formed or
acquired, cause the Collateral and Guarantee Requirement to be satisfied with respect to such
subsidiary and with respect to any Equity Interest in or Indebtedness of such subsidiary owned by
or on behalf of any Loan Party.



     (e) In the case of the U.S. Borrower, (i) furnish to the Collateral Agent prompt written
notice of any change (A) in any Loan Party’s corporate name, (B) in any Loan Party’s identity or
corporate structure or (C) in any Loan Party’s organizational identification number; provided that
the U.S. Borrower shall not effect or permit any such change unless all filings have been made, or
will have been made within any statutory period, under the Uniform Commercial Code or otherwise
that are required in order for the Collateral Agent to continue at all times following such change
to have a valid, legal and perfected security interest in all the Collateral for the benefit of the
Secured Parties and (ii) promptly notify the Administrative Agent if any material portion of the
Collateral is damaged or destroyed.



     (f) Prior to any Foreign Subsidiary becoming a Foreign Subsidiary Loan Party, cause (i) the
Collateral and Guarantee Requirement to be satisfied with respect to such Foreign Subsidiary, (ii)
the Equity Interests and Pledged Collateral (if any) of such Foreign Subsidiary to be pledged
pursuant to a Foreign Pledge Agreement and (iii) after giving effect to paragraph (h) below, at
least a substantial portion of the assets (as reasonably determined by the Administrative Agent) of
such Foreign Subsidiary to be









 



118



subject to a valid first lien in favor of the Collateral Agent for the benefit of the Secured
Parties.



     (g) [Intentionally Omitted]



     (h) The Collateral and Guarantee Requirement and the other provisions of this Section 5.10
need not be satisfied with respect to (i) any real property held by Holdings, Intermediate
Holdings, the U.S. Borrower or any Subsidiary as a lessee under a lease, (ii) any Equity Interests
acquired after the Restatement Effective Date pursuant to Section 6.04(s) if, and to the extent
that, and for so long as (A) doing so would violate applicable law or a contractual obligation
binding on such Equity Interests and (B) such law or obligation existed at the time of the
acquisition thereof and was not created or made binding on such Equity Interests in contemplation
of or in connection with the acquisition of such Subsidiary (provided that the foregoing clause (B)
shall not apply in the case of a joint venture, including a joint venture that is a Subsidiary),
(iii) any assets acquired after the Restatement Effective Date, to the extent that, and for so long
as, taking such actions would violate a contractual obligation binding on such assets that existed
at the time of the acquisition thereof and was not created or made binding on such assets in
contemplation or in connection with the acquisition of such assets (except in the case of assets
acquired with Indebtedness that constitutes a Capital Lease Obligation, mortgage financing or
purchase money financing and that is secured by a Lien permitted pursuant to Section 6.02(r)) or
(iv) any Subsidiary or asset with respect to which the Collateral Agent determines that the cost of
the satisfaction of the Collateral and Guarantee Requirement or the provisions of this Section 5.10
with respect thereto exceeds the value of the security afforded thereby; provided that upon the
reasonable request of the Collateral Agent, the U.S. Borrower shall, and shall cause any applicable
Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual
obligation of the types described in clauses (ii) and (iii) above, other than those set forth in
joint venture agreements to which the U.S. Borrower or a Subsidiary is party.



     SECTION 5.11. Fiscal Year; Accounting. In the case of the U.S. Borrower, cause its fiscal
year to end on December 31.



     SECTION 5.12. [Intentionally Omitted].



     SECTION 5.13. Proceeds of Certain Dispositions. If, as a result of the receipt of any cash
proceeds by the U.S. Borrower or any Subsidiary in connection with any sale, transfer, lease or
other disposition of any asset, including any Equity Interest, the U.S. Borrower would be required
by the terms of the New Senior Note Indentures, Senior Note Indentures or Senior Subordinated Note
Indentures to make an offer to purchase any New Senior Notes, Senior Notes or Senior Subordinated
Notes, as applicable, then, in the case of the U.S. Borrower or a Subsidiary, prior to the first
day on which the U.S. Borrower would be required to commence such an offer to purchase, (i) prepay
Loans in accordance with Section 2.11 or (ii) acquire assets, Equity Interests or other securities
in a manner that is permitted by Section 6.04 or Section 6.05, in each case in a manner that will
eliminate any such requirement to make such an offer to purchase.









 



119


     SECTION 5.14. Post Restatement Effective Date Matters. The U.S. Borrower shall, or shall
cause the applicable Loan Party to, deliver to the Collateral Agent, no later than 90 days after
the Restatement Effective Date, or by such later date as the Collateral Agent deems appropriate,
(i) amendments or supplements to Security Documents set forth on Schedule 5.14(a) hereto (and all
related documents reasonably requested by the Administrative Agent) providing that the Tranche A
Term Loans, Tranche A-1 Term Loans, Tranche B-1 Term Loans and Revolving Loans (in addition to the
other Obligations described therein) shall be secured by a Lien on the Collateral described
therein, (ii) opinions of counsel set forth on Schedule 5.14(b) and (iii) promissory notes
evidencing Indebtedness owing to Loan Parties set forth on Schedule 5.14(c). The U.S. Borrower
shall cause the annual accounts of Finco for the fiscal year 2005 to be approved by Finco’s
shareholders and filed with the Luxembourg trade register on or prior to June 30, 2007 (or such
later date as the Administrative Agent shall determine in its sole discretion).



     SECTION 5.15. Collateral Release. (a) Immediately upon the commencement of any Collateral
Release Period, the security interests of the Collateral Agent and the other Secured Parties in the
Collateral shall automatically be terminated and released; provided that the Guarantee of each Loan
Party of the Obligations pursuant to the Loan Documents shall remain in effect during any such
Collateral Release Period. During any Collateral Release Period, the Administrative Agent and the
Collateral Agent shall execute and deliver, at the U.S. Borrower’s expense, all documents or other
instruments that the U.S. Borrower shall reasonably request to evidence the termination and release
of such security interests and shall return all Collateral in their possession to the U.S.
Borrower.



     (b) During any Collateral Release Period:




     (i) The representations and warranties set forth in Section 3.17 shall not be
required to be true and correct in any respect in connection with any Credit Event
occurring during such period, and the inaccuracy in any respect of such
representations and warranties shall not give rise to any Default or Event of
Default pursuant to Section 7.01(a);




     (ii) Holdings, Intermediate Holdings and the Borrowers shall not be required
to comply with the terms of Sections 5.02(b), (c), (d) or (e);




     (iii) Holdings, Intermediate Holdings and the Borrowers shall not be required
to comply with the terms of Section 5.10 to the extent such terms require the
creation and perfection of security interests or Liens on Collateral (it being
understood that Holdings, Intermediate Holdings and the Borrowers shall continue to
be required to comply with the terms of Section 5.10 that require the provision of
Guarantees by Loan Parties in respect of the Obligations); and









 



120



     (iv) The occurrence of any of the events described in Section 7.01(l)(ii)
shall not constitute or give rise to any Default or Event of Default.



     (c) Upon the termination of any Collateral Release Period, the security interests of the
Collateral Agent and the Secured Parties in the Collateral shall automatically, without any further
action on the part of the Administrative Agent, the Collateral Agent, the Secured Parties or any
Loan Party, be reinstated and the provisions of Section 5.15(a) and (b) shall no longer apply
(until the commencement of a subsequent Collateral Release Period). Promptly following the
termination of any Collateral Release Period, the Loan Parties shall execute any and all documents,
financing statements, agreements and instruments, and take all such actions (including the filing
and recording of financing statements, mortgages, fixture filings and other documents) that may be
required under applicable law or that the Administrative Agent or Collateral Agent shall reasonably
request, to reinstate such security interests and to cause the Collateral and Guarantee Requirement
to be satisfied (all at the expense of the Loan Parties), including with respect to any
Subsidiaries or assets that would have been subjected to the Collateral and Guarantee Requirement
under Section 5.10 had such terminated Collateral Release Period not been in effect; provided that
all such actions shall be completed (i) with respect to the security interests in Collateral held
by Holdings, Intermediate Holdings, the U.S. Borrower and each Domestic Subsidiary Loan Party
(other than owned real property), no later than 30 days after the date of termination of such
Collateral Release Period, (ii) with respect to Collateral held by Holdings, Intermediate Holdings,
the U.S. Borrower and each Domestic Subsidiary Loan Party that constitutes owned real property, no
later than 45 days after the date of termination of such Collateral Release Period and (iii) with
respect to Collateral held by any Foreign Subsidiary Loan Party, no later than 90 days after the
date of termination of such Collateral Release Period (or, in each case, such later date as the
Collateral Agent shall deem appropriate).



ARTICLE VI




Negative Covenants




     Each of Holdings, Intermediate Holdings and the Borrowers covenants and agrees with each
Lender that, so long as this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all other expenses or
amounts payable under any Loan Document have been paid in full and all Letters of Credit have been
canceled or have expired and all amounts drawn thereunder have been reimbursed in full, unless the
Required Lenders shall otherwise consent in writing, none of Holdings, Intermediate Holdings or the
U.S. Borrower will, or will cause or permit any of the Subsidiaries to:



     SECTION 6.01. Indebtedness. Permit Holdings, Intermediate Holdings or any Subsidiary to
incur, create, assume or permit to exist any Indebtedness, except:



     (a) Indebtedness created hereunder and under the other Loan Documents;









 



121


     (b) Indebtedness of the Subsidiaries pursuant to Swap Agreements permitted by Section 6.13;



     (c) Indebtedness owed to (including obligations in respect of letters of credit or bank
guarantees for the benefit of) any person providing workers’ compensation, health, disability or
other employee benefits or property, casualty or liability insurance to the U.S. Borrower or any
Subsidiary, pursuant to reimbursement or indemnification obligations to such person, provided that
upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’
compensation claims, such obligations are reimbursed not later than 30 days following such
incurrence;



     (d) Indebtedness of any Borrower to any Subsidiary and any Subsidiary to any Borrower or any
other Subsidiary, provided that (i) Indebtedness of the Subsidiaries that are not Loan Parties to
the Borrowers and the Subsidiary Loan Parties shall be subject to Section 6.04(d) and (ii)
Indebtedness of any Borrower to any Subsidiary and Indebtedness of any other Loan Party to any
Subsidiary that is not a Subsidiary Loan Party (the “Subordinated Intercompany Debt”) shall be
subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent (other
than Indebtedness of any Loan Party in respect of loans made by Fortuna described on Schedule
6.07);



     (e) Indebtedness of the Subsidiaries in respect of performance bonds, bid bonds, appeal
bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the
ordinary course of business, including those incurred to secure health, safety and environmental
obligations in the ordinary course of business and any extension, renewal or refinancing thereof to
the extent that the amount of refinancing Indebtedness is not greater than the amount of
Indebtedness being refinanced (plus unpaid accrued interest and premium thereon);



     (f) Indebtedness arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument drawn against insufficient funds in the ordinary course of
business, provided that such Indebtedness is extinguished promptly after its incurrence;



     (g) Guarantees by Holdings, Intermediate Holdings and the Subsidiaries of the New Senior
Notes, Senior Notes, the Senior Subordinated Notes and any Permitted Notes Refinancing
Indebtedness, in each case pursuant to the terms of the New Senior Note Indentures, Senior Note
Indentures or Senior Subordinated Note Indentures, or the definitive documentation with respect to
such Permitted Notes Refinancing Indebtedness, as applicable;



     (h) Indebtedness arising from agreements of a Subsidiary providing for indemnification,
adjustment of purchase price or similar obligations, in each case, incurred or assumed in
connection with the disposition of any business, assets or a Subsidiary, other than Guarantees of
Indebtedness incurred by any person acquiring all or any portion of such business, assets or a
Subsidiary for the purpose of financing such acquisition;









 



122


     (i) in the case of Intermediate Holdings, the Intermediate Holdings Loan;



     (j) the Permitted Receivables Financing;



     (k) the Finco Loan and the Foreign Acquiror Loans;



     (l) letters of credit and bank guarantees (other than Letters of Credit issued pursuant to
Section 2.05) having an aggregate face amount not in excess of $100,000,000;



     (m) (i) Indebtedness of the Subsidiaries in an aggregate principal amount at any time
outstanding pursuant to this paragraph (m) not in excess of $300,000,000, to the extent that the
Net Proceeds of such Indebtedness are applied to prepay Term Loans pursuant to Section 2.11(c),
provided that (A) the stated maturity of such Indebtedness is no earlier than 180 days after the
Tranche B-1 Maturity Date or the maturity date of any Incremental Extension of Credit outstanding
on the date of issuance of such Indebtedness, (B) the weighted average life of such Indebtedness is
no shorter than the then-remaining weighted average life of the Tranche B-1 Term Loans or any
Incremental Extensions of Credit outstanding on the date of issuance of such Indebtedness, (C) such
Indebtedness shall not be secured by any collateral and (D) all other terms (excluding interest
rates and redemption premiums) of such Indebtedness shall not be less favorable to the Lenders in
any material respect than those contained in the Senior Notes (or, if such Indebtedness is
subordinated to the Obligations, the Senior Subordinated Notes) and (ii) Guarantees by Holdings,
Intermediate Holdings and the Subsidiaries of Indebtedness permitted to be incurred pursuant to
clause (i) of this paragraph (m);



     (n) [Reserved];



     (o) (i) other Indebtedness of the Subsidiaries not permitted under any other clause of this
Section 6.01 in an aggregate principal amount that at the time of, and after giving effect to, the
incurrence thereof (together with all other Indebtedness incurred and outstanding pursuant to this
clause (o)) would not exceed 10% of Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date of such incurrence for which financial statements have been delivered
pursuant to Section 5.04 and (ii) Guarantees by Holdings, Intermediate Holdings and the
Subsidiaries of Indebtedness permitted to be incurred pursuant to clause (i) of this paragraph (o);
and



     (p) (i) Indebtedness of the Subsidiaries in an aggregate principal amount at any time
outstanding pursuant to this paragraph (p) not in excess of $350,000,000 to the extent that the Net
Proceeds of such Indebtedness are applied to prepay Term Loans or Revolving Loans (without a
reduction in the Revolving Credit Commitments) pursuant to Section 2.11(c), provided that
(A) the stated maturity of such Indebtedness is no earlier than 180 days after the Tranche B-1
Maturity Date or the maturity date of any Incremental Extension of Credit outstanding on the date
of issuance of such Indebtedness, (B) the weighted average life of such Indebtedness is no shorter
than the then-remaining weighted average life of the Tranche B-1 Term Loans or any Incremental
Extension of Credit outstanding on the date of issuance of such Indebtedness, (C) such









 



123



Indebtedness shall not be secured by any collateral and (D) all other terms (excluding
interest rates and redemption premiums) of such Indebtedness shall not be less favorable to the
Lenders in any material respect than those contained in the Senior Notes (or, if such Indebtedness
is subordinated to the Obligations, the Senior Subordinated Notes) and (ii) Guarantees by Holdings,
Intermediate Holdings and the Subsidiaries of Indebtedness permitted to be incurred pursuant to
clause (i) of this paragraph (p);



     Notwithstanding anything to the contrary herein, Finco shall not be permitted to incur any
Indebtedness other than the Finco Loan and a Guarantee pursuant to paragraph (g) of this Section
6.01 (other than Indebtedness owing to any Loan Party that is evidenced by a promissory note and
pledged pursuant to the U.S. Collateral Agreement or a Foreign Pledge Agreement, which Indebtedness
shall be subject to Section 6.04(d)).



     SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien on any property or
assets (including stock or other securities of any person, including any subsidiary of Holdings,
Intermediate Holdings or the U.S. Borrower) at the time owned by it or on any income or revenues or
rights in respect of any thereof, except:



     (a) Liens on property or assets of the U.S. Borrower and the Subsidiaries existing on the
Restatement Effective Date and set forth on the Schedule 6.02, provided that such Liens shall
secure only those obligations that they secure on the Restatement Effective Date (and extensions,
renewals and refinancings of such obligations that do not increase the principal amount of the
obligations being extended, renewed or refinanced (plus accrued and unpaid interest and premium
thereon) and that are permitted by Section 6.01(a)) and shall not subsequently apply to any other
property or assets of Holdings, Intermediate Holdings, the U.S. Borrower or any Subsidiary;



     (b) any Lien created under the Loan Documents or permitted in respect of any Mortgaged
Property by the terms of the applicable Mortgage;



     (c) Liens for Taxes, assessments or other governmental charges or levies not yet delinquent
or that are being contested in compliance with Section 5.03 or for property Taxes on property that
Holdings, Intermediate Holdings, the U.S. Borrower or one of the Subsidiaries has determined to
abandon if the sole recourse for such Tax, assessment, charge, levy or claim is to such property;



     (d) landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other
like Liens arising in the ordinary course of business and securing obligations that are not overdue
by more than 30 days or that are being contested in good faith by appropriate proceedings and in
respect of which, if applicable, Holdings, Intermediate Holdings, the U.S. Borrower or the relevant
Subsidiary shall have set aside on its books reserves in accordance with GAAP;



     (e) (i) pledges and deposits made in the ordinary course of business in compliance with the
Federal Employers Liability Act or any other workers’ compensation, unemployment insurance and
other social security laws or regulations and deposits securing liability to insurance carriers
under insurance or self-insurance









 



124



arrangements in respect of such obligations and (ii) pledges and deposits securing liability
for reimbursement or indemnification obligations of (including obligations in respect of letters of
credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or
liability insurance to the U.S. Borrower or any Subsidiary;



     (f) deposits to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary
course of business, including those incurred to secure health, safety and environmental obligations
in the ordinary course of business;



     (g) zoning restrictions, easements, trackage rights, leases (other than Capital Lease
Obligations), licenses, special assessments, rights-of-way, restrictions on use of real property
and other similar encumbrances incurred in the ordinary course of business that, in the aggregate,
are not substantial in amount and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of Holdings, Intermediate Holdings,
the U.S. Borrower or any of the Subsidiaries;



     (h) Liens securing judgments that do not constitute an Event of Default under Section
7.01(j);



     (i) Liens disclosed by the title insurance policies and title endorsements delivered on the
Restatement Effective Date and pursuant to Section 5.10 and any replacement, extension or renewal
of any such Lien, provided that such replacement, extension or renewal Lien shall not cover any
property other than the property that was subject to such Lien prior to such replacement, extension
or renewal, provided, further, that the Indebtedness and other obligations secured by such
replacement, extension or renewal Lien are permitted by this Agreement;



     (j) Liens in respect of the Permitted Receivables Financing;



     (k) any interest or title of a lessor under any leases or subleases entered into by the U.S.
Borrower or any Subsidiary in the ordinary course of business;



     (l) Liens that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of Indebtedness, (ii)
relating to pooled deposit or sweep accounts of the U.S. Borrower or any Subsidiary to permit
satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the
U.S. Borrower and the Subsidiaries or (iii) relating to purchase orders and other agreements
entered into with customers of the U.S. Borrower or a Subsidiary in the ordinary course of
business;



     (m) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights;









 



125


     (n) Liens securing obligations in respect of letters of credit or bank guarantees, in each
case as permitted under Section 6.01(l) and covering the goods (or the documents of title in
respect of such goods) financed by such letters of credit or bank guarantees, as the case may be,
and the proceeds and products thereof;



     (o) licenses of intellectual property granted in a manner consistent with past practice;



     (p) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods;



     (q) Liens on securities held by the U.S. Borrower or any Subsidiary representing an interest
in a joint venture to which the U.S. Borrower or such Subsidiary is a party (provided that such
joint venture is not a Subsidiary) to the extent that (i) such Liens constitute purchase options,
calls or similar rights of a counterparty to such joint venture and (ii) such Liens are granted
pursuant to the terms of the partnership agreement, joint venture agreement or other similar
document or documents pursuant to which such joint venture was created or otherwise governing the
rights and obligations of the parties to such joint venture; and



     (r) other Liens not permitted under any other clause of this Section 6.02 to secure
obligations of the U.S. Borrower and the Subsidiaries in an aggregate amount that at the time of,
and after giving effect to, the creation of such Lien (together with the Remaining Present Value of
leases permitted under Section 6.03) would not exceed 7.5% of Consolidated Total Assets as of the
end of the fiscal quarter immediately prior to the date of creation of such Lien for which
financial statements have been delivered pursuant to Section 5.04.



     SECTION 6.03. Sale and Lease-Back Transactions. Enter into any arrangement, directly or
indirectly, with any person whereby it shall sell or transfer any property, real or personal, used
or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease
such property or other property that it intends to use for substantially the same purpose or
purposes as the property being sold or transferred (a “Sale and Lease-Back Transaction”), provided
that a Sale and Lease-Back Transaction shall be permitted to the extent that (a) such transaction
was existing or under contract on the Restatement Effective Date and set forth on Schedule 6.03 or
(b) at the time the lease in connection therewith is entered into, and after giving effect to the
entering into of such Lease, the Remaining Present Value of such lease (together with all
outstanding obligations secured by Liens pursuant to Section 6.02(r) and the Remaining Present
Value of outstanding leases entered into under this Section 6.03) would not exceed 7.5% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such
lease is entered into for which financial statements have been delivered pursuant to Section 5.04.



     SECTION 6.04. Investments, Loans and Advances. Purchase, hold or acquire (including pursuant
to any merger with a person that is not a Wholly Owned Subsidiary immediately prior to such merger)
any Equity Interests, evidences of









 



126



indebtedness or other securities of, make or permit to exist any loans or advances (other than
intercompany current liabilities incurred in the ordinary course of business in connection with the
cash management operations of the U.S. Borrower and the Subsidiaries) to or Guarantees of the
obligations of, or make or permit to exist any investment or any other interest in, any other
person, except:



     (a) investments (i) existing on the Restatement Effective Date in the Equity Interests of the
Subsidiaries, (ii) by Holdings in the Equity Interests of Intermediate Holdings, (iii) by
Intermediate Holdings in the Equity Interests of the U.S. Borrower and (iv) by any Borrower or any
Subsidiary in any Borrower or any Subsidiary, provided that investments (other than Exempted
Intercompany Investments) by the Borrowers and the Subsidiary Loan Parties pursuant to this
paragraph (a)(iv) in Subsidiaries that are not Loan Parties (valued at the time of the making
thereof) shall not exceed the Available Intercompany Investment Amount at the time of the making of
each such investment;



     (b) Permitted Investments and investments that were Permitted Investments when made;



     (c) investments arising out of the receipt by the U.S. Borrower or any Subsidiary of noncash
consideration for the sale of assets permitted under Section 6.05;



     (d) intercompany loans from any Borrower to any Subsidiary and from any Subsidiary to any
Borrower or any other Subsidiary, provided that loans (other than Exempted Intercompany
Investments) from the Borrowers and the Subsidiary Loan Parties pursuant to this paragraph (d) to
Subsidiaries that are not Loan Parties shall not exceed the Available Intercompany Investment
Amount at the time of the making of each such intercompany loan;



     (e) (i) loans and advances to employees of Holdings, Intermediate Holdings, the U.S. Borrower
or the Subsidiaries in the ordinary course of business not to exceed $10,000,000 in the aggregate
at any time outstanding (calculated without regard to write-downs or write-offs thereof), (ii)
advances of payroll payments and expenses to employees in the ordinary course of business and (iii)
loans and advances to employees of Holdings, Intermediate Holdings, the U.S. Borrower or the
Subsidiaries in the ordinary course of business for travel, entertainment and relocation expenses;



     (f) accounts receivable arising and trade credit granted in the ordinary course of business
and any securities received in satisfaction or partial satisfaction thereof from financially
troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;



     (g) Swap Agreements permitted pursuant to Section 6.13;



     (h) Investments existing on the Restatement Effective Date and set forth on Schedule 6.04(h);









 



127


     (i) investments resulting from pledges and deposits referred to in Sections 6.02(e) and (f);



     (j) investments constituting Permitted Business Acquisitions;



     (k) additional investments may be made from time to time to the extent made with proceeds of
Equity Interests (excluding proceeds received as a result of the exercise of Cure Rights pursuant
to Section 7.03) of Holdings, which proceeds or investments in turn are contributed to Intermediate
Holdings and in turn to the U.S. Borrower;



     (l) (i) Guarantees by the U.S. Borrower and (ii) Guarantees constituting Indebtedness
permitted by Sections 6.01(g), (m), (n) and (o), provided that the aggregate principal amount of
Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed (other than Exempted
Intercompany Investments) by the Borrowers and the Subsidiary Loan Parties pursuant to this
paragraph (l) shall not exceed the Available Intercompany Investment Amount at the time of the
provision of each such Guarantee;



     (m) investments arising as a result of the Permitted Receivables Financing;



     (n) the Transactions;



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



     (p) investments of a Subsidiary acquired after the Restatement Effective Date or of a
corporation merged into the U.S. Borrower or merged into or consolidated with a Subsidiary in
accordance with Section 6.05 after the Restatement Effective Date to the extent that such
investments were not made in contemplation of or in connection with such acquisition, merger or
consolidation and were in existence on the date of such acquisition, merger or consolidation;



     (q) Guarantees by the Borrowers and the Subsidiaries of leases (other than Capital Lease
Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into
by any Subsidiary in the ordinary course of business;



     (r) the Intermediate Holdings Loan;



     (s) other investments by the U.S. Borrower and the Subsidiaries in an aggregate amount
(valued at the time of the making thereof, and without giving effect to any write-downs or
write-offs thereof) that at the time of, and after giving effect to, the making thereof would not
exceed 5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the
date of such investment for which financial statements have been delivered pursuant to Section 5.04
(plus any return of capital actually received by the respective investors in respect of investments
theretofore made by them pursuant to this paragraph (s));









 



128


     (t) investments by the U.S. Borrower or any of its Subsidiaries in Fortuna; provided
that (i)(A) the proceeds of such investments are used for the sole purpose of paying claims covered
by insurance coverage provided by Fortuna to the U.S. Borrower and its Subsidiaries and (B) the
aggregate amount of any such investments shall not exceed an amount equal to (1) the aggregate
amount of claims then owing by Fortuna pursuant to insurance coverage provided to the U.S. Borrower
and its Subsidiaries by Fortuna less (2) the sum of (x) the aggregate amount of cash
reserves then held by Fortuna and (y) the aggregate amount of Indebtedness then owed to Fortuna by
the U.S. Borrower and its Subsidiaries or (ii) such investment is required by applicable law or
Governmental Authority; and



     (u) investments resulting from the conversion into equity, or other reduction, of any Foreign
Acquiror Loan.



     SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or
consolidate with any other person, or permit any other person to merge into or consolidate with it,
or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or any part of its assets (whether now owned or hereafter acquired), or issue,
sell, transfer or otherwise dispose of any Equity Interests of Intermediate Holdings, the U.S.
Borrower or any Subsidiary or preferred equity interests of Holdings, or purchase, lease or
otherwise acquire (in one transaction or a series of transactions) all or any substantial part of
the assets of any other person, except that this Section shall not prohibit:



     (a) (i) the purchase and sale of inventory in the ordinary course of business by the U.S.
Borrower or any Subsidiary, (ii) the acquisition of any other asset in the ordinary course of
business by the U.S. Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out
equipment or other property in the ordinary course of business by the U.S. Borrower or any
Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;



     (b) if at the time thereof and immediately after giving effect thereto no Event of Default or
Default shall have occurred and be continuing, (i) the merger of Intermediate Holdings (or the
surviving entity of any merger of Intermediate Holdings and Holdings) with the U.S. Borrower, (ii)
the merger of Intermediate Holdings (or the surviving entity of any merger of Intermediate Holdings
and the U.S. Borrower) with Holdings, (iii) the merger of any Subsidiary into a Borrower in a
transaction in which such Borrower is the surviving corporation, (iv) the merger or consolidation
of any Subsidiary into or with any Subsidiary Loan Party in a transaction in which the surviving or
resulting entity is a Subsidiary Loan Party (which shall be a Domestic Subsidiary Loan Party if any
party to such merger or consolidation shall be a domestic Subsidiary) and, in the case of each of
clauses (iii) and (iv), no person other than a Borrower or Subsidiary Loan Party receives any
consideration, (v) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan
Party into or with any other Subsidiary that is not a Subsidiary Loan Party or (vi) the liquidation
or dissolution of any Subsidiary (other than a Borrower) if the U.S. Borrower determines in good
faith that such liquidation or









 



129



dissolution is in the best interests of the U.S. Borrower and is not materially
disadvantageous to the Lenders;



     (c) sales, transfers, leases or other dispositions to the U.S. Borrower or a Subsidiary (upon
voluntary liquidation or otherwise); provided that any sales, transfers, leases or other
dispositions by a Loan Party to a Subsidiary that is not a Loan Party shall be made in compliance
with Section 6.07;



     (d) Sale and Lease-Back Transactions permitted by Section 6.03;



     (e) investments expressly permitted by Section 6.04;



     (f) the purchase, sale or other transfer of accounts receivable and related assets pursuant
to the Permitted Receivables Financing;



     (g) the sale of defaulted receivables in the ordinary course of business and not as part of
an accounts receivables financing transaction;



     (h) sales, transfers, leases or other dispositions of assets not otherwise permitted by this
Section 6.05 (other than the note evidencing or any right to payment in respect of the Intermediate
Holdings Loan or the Finco Loan), provided that such sale does not constitute a sale of all or
substantially all the assets of Holdings, Intermediate Holdings, the U.S. Borrower and the
Subsidiaries, taken as a whole;



     (i) any merger or consolidation in connection with a Permitted Business Acquisition, provided
that following any such merger or consolidation (i) involving a Borrower, such Borrower is the
surviving corporation, (ii) involving a domestic Subsidiary, the surviving or resulting entity
shall be a Domestic Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a
Foreign Subsidiary, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that
is a Wholly Owned Subsidiary; and



     (j) licensing and cross-licensing arrangements involving any technology or other intellectual
property of the U.S. Borrower or a Subsidiary in the ordinary course of business.


Notwithstanding anything to the contrary contained above, (i) Holdings shall at all times own,
directly or indirectly, 100% of the Equity Interests of Intermediate Holdings (or the surviving
entity in any merger of Intermediate Holdings and the U.S. Borrower pursuant to Section 6.05(b)),
unless and until such time as Intermediate Holdings (or such surviving entity) is merged with
Holdings pursuant to Section 6.05(b), (ii) Intermediate Holdings (or the surviving entity in any
merger of Intermediate Holdings and Holdings pursuant to Section 6.05(b)) shall at all times own,
directly or indirectly, 100% of the Equity Interests of the U.S. Borrower, unless and until such
time as Intermediate Holdings (or such surviving entity) is merged with the U.S. Borrower pursuant
to Section 6.05(b), (iii) each Foreign Subsidiary Borrower and Finco shall be a Wholly Owned
Subsidiary, (iv) no sale, transfer or other disposition of assets shall be permitted by this
Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties








 



130


pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (v) no sale,
transfer or other disposition of assets shall be permitted by paragraphs (a) or (d) of this Section
6.05 unless such disposition is for at least 75% cash consideration and (vi) no sale, transfer or
other disposition of assets in excess of $250,000,000 shall be permitted by paragraph (h) of this
Section 6.05 unless such disposition is for at least 75% cash consideration; ; provided, however,
that for purposes of clause (vi) of this sentence, (A) the assumption by the transferee of
liabilities associated with the assets subject to any sale, transfer or other disposition shall not
be deemed to be consideration paid in respect of such assets and (B) any Designated Non-Cash
Consideration received by the U.S. Borrower or any Subsidiary in respect of any such sale, transfer
or other disposition (valued at the time of receipt thereof, and without giving effect to any
write-downs or write-offs thereof) having an aggregate fair market value, taken together with all
other Designated Non-Cash Consideration previously applied pursuant to this clause (B) less the Net
Proceeds of any subsequent sale of any such Designated Non-Cash Consideration, not to exceed the
greater of (x) 2.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately
prior to the date of such sale, transfer or other disposition for which financial statements have
been delivered pursuant to Section 5.04 and (y) $100,000,000, shall be deemed to constitute “cash
consideration” received in respect of such sale, transfer or other disposition.




     SECTION 6.06. Dividends and Distributions. Declare or pay, directly or indirectly, any
dividend or make any other distribution (by reduction of capital or otherwise), whether in cash,
property, securities or a combination thereof, with respect to any of its Equity Interests (other
than dividends and distributions on Holdings Common Stock payable solely by the issuance of
additional shares of Holdings Common Stock) or directly or indirectly redeem, purchase, retire or
otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any shares of any
class of its Equity Interests or set aside any amount for any such purpose; provided, however,
that:



     (a) any Subsidiary may declare and pay dividends to, repurchase its Equity Interests from or
make other distributions to the U.S. Borrower or to any Wholly Owned Subsidiary (or, in the case of
non-Wholly Owned Subsidiaries, to the U.S. Borrower or any Subsidiary and to each other owner of
Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the
perspective of the U.S. Borrower or such Subsidiary) based on their relative ownership interests);



     (b) the U.S. Borrower may declare and pay dividends or make other distributions to
Intermediate Holdings (which may, in turn, declare and pay dividends or make other distributions to
Holdings, in an amount equal to the dividends and distributions received by Intermediate Holdings)
in respect of (i) overhead, tax liabilities of Holdings and Intermediate Holdings, legal,
accounting and other professional fees and expenses, (ii) fees and expenses related to any equity
offering, investment or acquisition permitted hereunder (whether or not successful) and (iii) other
fees and expenses in connection with the maintenance of its existence and its ownership of the U.S.
Borrower or Intermediate Holdings, as applicable, and in order to permit Holdings to make payments
permitted by Sections 6.07(b) and (c);









 



131


     (c) Holdings may purchase or redeem (and the U.S. Borrower may declare and pay
dividends or make other distributions to Intermediate Holdings, the proceeds of which are used by
Intermediate Holdings to pay dividends or make other distributions to Holdings, the proceeds of
which are used so to purchase or redeem) Equity Interests of Holdings (including related stock
appreciation rights or similar securities) held by then present or former directors, consultants,
officers or employees of Holdings, the U.S. Borrower or any of the Subsidiaries or by any Plan upon
such person’s death, disability, retirement or termination of employment or under the terms of any
such Plan or any other agreement under which such shares of stock or related rights were issued,
provided that the aggregate amount of such purchases or redemptions under this paragraph (c) shall
not exceed in any fiscal year $7,500,000 (plus the amount of net proceeds received by Holdings
during such calendar year from sales of Equity Interests of Holdings to directors, consultants,
officers or employees of Holdings, Intermediate Holdings, the U.S. Borrower or any Subsidiary in
connection with permitted employee compensation and incentive arrangements) which, if not used in
any year, may be carried forward to any subsequent calendar year (it being understood that the
amount carried forward from the fiscal year ended December 31, 2006 (“Fiscal Year 2006”) to the
fiscal year ended December 31, 2007 (“Fiscal Year 2007”) for purposes of Section 6.06(c) in the
Existing Credit Agreement shall be deemed to have been carried over from Fiscal Year 2006 to Fiscal
Year 2007 for purposes of this paragraph (c);



     (d) this Section 6.06 shall not prohibit noncash repurchases of Equity Interests that are
deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the
exercise price of such options;



     (e) Holdings may purchase or redeem, or declare and pay dividends or make other distributions
in respect of (and the U.S. Borrower may declare and pay dividends or make other distributions to
Intermediate Holdings, the proceeds of which are used by Intermediate Holdings to pay dividends or
make other distributions to Holdings, the proceeds of which are used by Holdings so to purchase or
redeem, or pay such dividends or make such other distributions in respect of) Equity Interests of
Holdings (including the purchase or redemption of related stock appreciation rights or similar
securities with respect to such Equity Interests) (i) in the event the Leverage Ratio as of the
last day of the most recently ended fiscal quarter prior to the date of such payment for which
financial statements have been delivered pursuant to Section 5.04 is greater than or equal to 3.0
to 1.0, in the amount not to exceed the Dividend Payment Amount at the time of such payment and
(ii) in the event the Leverage Ratio as of the last day of the most recently ended fiscal quarter
prior to the date of such payment for which financial statements have been delivered pursuant to
Section 5.04 is less than 3.0 to 1.0, (A) in an aggregate amount not to exceed (x) $200,000,000
minus (y) the aggregate amount of purchases, redemptions, dividends and distributions previously
made pursuant to this clause (A) and (B) in an aggregate amount not to exceed the Cumulative Net
Income Amount at the time of such payment, provided that, in the case of any dividend or
distribution pursuant to this paragraph (e), no Default or Event of Default shall have occurred and
be continuing or would result therefrom; and









 



132


     (f) Holdings may purchase or redeem (and the U.S. Borrower may declare and pay dividends or
make other distributions to Intermediate Holdings, the proceeds of which are used by Intermediate
Holdings to pay dividends or make other distributions to Holdings, the proceeds of which are used
by Holdings so to purchase or redeem) Equity Interests of Holdings (including the purchase or
redemption of related stock appreciation rights or similar securities with respect to such Equity
Interests) in an aggregate amount not to exceed (x) $350,000,000 minus (y) the aggregate amount of
purchases and redemptions made on or after the Restatement Effective Date pursuant to this clause
(f), provided that (A) the Leverage Ratio as of the last day of the most recently ended fiscal
quarter prior to the date of such payment for which financial statements have been delivered
pursuant to Section 5.04 is less than 3.0 to 1.0 and (B) no Default or Event of Default shall have
occurred and be continuing or would result therefrom.



     Notwithstanding anything to the contrary herein, (i) in the event of any merger of the U.S.
Borrower into Intermediate Holdings pursuant to Section 6.05(b)(i), any dividend or distribution
permitted to be made under this Section 6.08 to the U.S. Borrower may be made to Intermediate
Holdings, (ii) in the event of any merger of Intermediate Holdings into Holdings pursuant to
Section 6.05(b)(ii), any dividend or distribution permitted to be made under this Section 6.08 to
Intermediate Holdings (including pursuant to clause (i) of this paragraph) may be made to Holdings
and (iii) in the event of any merger of the surviving entity of any merger of the U.S. Borrower and
Intermediate Holdings with Holdings pursuant to Section 6.05(b)(ii), any dividend permitted to be
made under this Section 6.08 to the U.S. Borrower may be made to Holdings.



     SECTION 6.07. Transactions with Affiliates. (a) Sell or transfer any property or assets to,
or purchase or acquire any property or assets from, or otherwise engage in any other transaction
with, any of its Affiliates or any known direct or indirect holder of 10% or more of any class of
capital stock of Holdings, unless such transaction is (i) otherwise permitted (or required) under
this Agreement (including in connection with the Permitted Receivables Financing and the
Intermediate Holdings Loan) and (ii) upon terms no less favorable to Holdings, Intermediate
Holdings, the U.S. Borrower or such Subsidiary, as applicable, than would be obtained in a
comparable arm’s-length transaction with a person that is not an Affiliate; provided that this
clause (ii) shall not apply to (A) the payment to the Fund of the monitoring and management fees
referred to in paragraph (c) below or (B) the indemnification of directors of Holdings,
Intermediate Holdings, the U.S. Borrower and the Subsidiaries in accordance with customary
practice.



     (b) The foregoing paragraph (a) shall not prohibit, to the extent otherwise permitted under
this Agreement, (i) any issuance of securities, or other payments, awards or grants in cash,
securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and
stock ownership plans approved by the Board of Directors of Holdings, (ii) loans or advances to
employees of Holdings, the U.S. Borrower or any of the Subsidiaries in accordance with Section
6.04(e), (iii) transactions among the Borrowers and the Subsidiary Loan Parties and transactions
among the Subsidiary Loan Parties otherwise permitted by this Agreement, (iv) the payment of fees
and indemnities to directors, officers and employees of Holdings, Intermediate Holdings,









 



133



the U.S. Borrower and the Subsidiaries in the ordinary course of business, (v) transactions
pursuant to permitted agreements in existence on the Restatement Effective Date and set forth on
Schedule 6.07 or any amendment thereto to the extent such amendment is not adverse to the Lenders
in any material respect, (vi) any employment agreements entered into by any of the U.S. Borrower or
any of the Subsidiaries in the ordinary course of business, (vii) dividends, redemptions and
repurchases permitted under Section 6.06, (viii) any purchase by the Fund or any Fund Affiliate of
Equity Interests of Holdings or any purchase by Intermediate Holdings of Equity Interests of the
U.S. Borrower or any contribution by Intermediate Holdings to the equity capital of the U.S.
Borrower, provided that any Equity Interests of the U.S. Borrower purchased by Intermediate
Holdings shall be pledged to the Collateral Agent on behalf of the Lenders pursuant to the U.S.
Collateral Agreement, (ix) payments by Holdings, Intermediate Holdings, the U.S. Borrower or any of
the Subsidiaries to the Fund or any Fund Affiliate made for any financial advisory, financing,
underwriting or placement services or in respect of other investment banking activities, including
in connection with acquisitions or divestitures, which payments are approved by the majority of the
Board of Directors of Holdings, in good faith, (x) subject to paragraph (c) below, the existence
of, or the performance by Holdings, the U.S. Borrower or any of the Subsidiaries of its obligations
under the terms of, the Purchase Agreement, or any agreement contemplated thereunder to which it is
a party as of the Closing Date; provided, however, that the existence of, or the performance by
Holdings, Intermediate Holdings, the U.S. Borrower or any Subsidiary of obligations under any
future amendment to any such existing agreement or under any similar agreement entered into after
the Closing Date shall only be permitted by this clause (x) to the extent that the terms of any
such amendment or new agreement are not otherwise disadvantageous to the Lenders in any material
respect, (xi) transactions with Subsidiaries for the purchase or sale of automotive goods,
products, parts and services entered into in the ordinary course of business in a manner consistent
with past practice, (xii) any transaction in respect of which the U.S. Borrower delivers to the
Administrative Agent (for delivery to the Lenders) a letter addressed to the Board of Directors of
the U.S. Borrower or of the applicable Subsidiary from an accounting, appraisal or investment
banking firm, in each case of nationally recognized standing that is (A) in the good faith
determination of the U.S. Borrower qualified to render such letter and (B) satisfactory to the
Administrative Agent, which letter states that such transaction is on terms that are no less
favorable to the U.S. Borrower or such Subsidiary, as applicable, than would be obtained in a
comparable arm’s-length transaction with a person that is not an Affiliate or (xiii) subject to
paragraph (c) below, the payment of all fees, expenses, bonuses and awards related to the
transactions contemplated by the Purchase Agreement, including fees to the Fund or any Fund
Affiliate.



     (c) Make any payment of or on account of monitoring or management or similar fees payable to
the Fund or any Fund Affiliate in an aggregate amount in any fiscal year in excess of $7,500,000
(plus reasonable expenses in connection therewith).



     SECTION 6.08. Business of Holdings, Intermediate Holdings, the U.S. Borrower and the
Subsidiaries. Engage at any time in any business or business activity other than (a) in the case
of the U.S. Borrower and the Subsidiaries (other than the









 



134



Subsidiary specified in clause (d) below), any business or business activity conducted by it
on the Restatement Effective Date and any business or business activities incidental or related
thereto, or any business or activity that is reasonably similar thereto or a reasonable extension,
development or expansion thereof or ancillary thereto, (b) in the case of Intermediate Holdings,
(i) ownership of the Equity Interests in the U.S. Borrower, together with activities directly
related thereto (unless the U.S. Borrower is merged into Intermediate Holdings, in which case
Intermediate Holdings may engage in the activities described in clause (a) of this Section 6.08),
(ii) performance of its obligations under and in connection with the Loan Documents, the
Intermediate Holdings Loan, the Purchase Agreement, the Senior Note Documents and the Senior
Subordinated Note Documents, (iii) actions incidental to the consummation of the Restatement
Transactions, (iv) the Guarantees permitted pursuant to Sections 6.01(g), (m), (n) and (o), (v)
actions required by law to maintain its existence and (vi) actions expressly permitted to be taken
by Intermediate Holdings pursuant to the terms of this Agreement, (c) in the case of Holdings, (i)
the ownership of the Equity Interests in Intermediate Holdings, together with activities directly
related thereto (unless Intermediate Holdings is merged into Holdings, in which case Holdings may
engage in the activities described in clause (b) of this Section 6.08 and, in the event the U.S.
Borrower has previously merged into Intermediate Holdings, the activities described in clause (a)
of this Section 6.08), (ii) performance of its obligations under and in connection with the Loan
Documents, the Purchase Agreement, the Stockholders Agreement, the other agreements contemplated by
the Purchase Agreement, the Senior Note Documents and the Senior Subordinated Note Documents, (iii)
actions incidental to the consummation of the Restatement Transactions, (iv) the Guarantees
permitted pursuant to Sections 6.01(g), (m), (n) and (o), (v) actions required by law to maintain
its existence, (vi) actions incidental to the consummation of any Equity Offering or any ordinary
course grant of common stock to employees and directors pursuant to the terms of any employee
benefit or stock option plan, including, in each case, the offering, issuance and sale of its
common stock and the payment of customary transaction costs and expenses in connection therewith
(other than any payments to any Affiliate of Holdings) and (vii) actions expressly permitted to be
taken by Holdings pursuant to the terms of this Agreement and (d) in the case of Fortuna, operating
as a captive insurance company that provides insurance coverage solely for the benefit of the U.S.
Borrower and the Subsidiaries.



     SECTION 6.09. Limitation on Modifications of Indebtedness; Modifications of Certificate of
Incorporation, By-Laws and Certain Other Agreements; etc. (a) Amend or modify in any manner
materially adverse to the Lenders, or grant any waiver or release under or terminate in any manner
(if such granting or termination shall be materially adverse to the Lenders), the articles or
certificate of incorporation or by-laws or partnership agreement or limited liability company
operating agreement of Holdings, Intermediate Holdings, the U.S. Borrower or any of the
Subsidiaries, the Purchase Agreement and the Stockholders Agreement.



     (b) (i) Make, or agree or offer to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect of principal of or
interest on the New Senior Notes, Senior Notes, the Senior Subordinated Notes, any Permitted Notes
Refinancing Indebtedness or the Intermediate









 



135



Holdings Loan, or any payment or other distribution (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of the New Senior Notes, Senior Notes, the
Senior Subordinated Notes, any Permitted Notes Refinancing Indebtedness or the Intermediate
Holdings Loan, except (A) payments of regularly scheduled interest and principal payments as and
when due in respect thereof, other than payments in respect of the Senior Subordinated Notes or any
Permitted Notes Refinancing Indebtedness in respect of the Senior Subordinated Notes prohibited by
the subordination provisions thereof, (B) payments of the New Senior Notes, the Senior Notes and
the Senior Subordinated Notes in connection with the issuance of any Permitted Notes Refinancing
Indebtedness, (C) the redemption of New Senior Notes, Senior Notes, Senior Subordinated Notes or
Permitted Notes Refinancing Indebtedness in accordance with the terms of the New Senior Note
Documents, Senior Note Documents or Senior Subordinated Note Documents, or the definitive
documentation for any such Permitted Notes Refinancing Indebtedness, as applicable, with Equity
Offering Net Proceeds from one or more Equity Offerings, provided that (1) the aggregate amount of
each series of New Senior Notes and Permitted Notes Refinancing Indebtedness in respect of New
Senior Notes redeemed pursuant to this clause (C) may not exceed 35% of the aggregate principal
amount of the New Senior Notes outstanding on the Restatement Effective Date and (2) such
redemption occurs within 90 days of the date of consummation of the relevant Equity Offering, (D)
the purchase, redemption, retirement or other acquisition of the Intermediate Holdings Loan in
accordance with its terms with Equity Offering Net Proceeds, (E) the purchase, redemption,
retirement or other acquisition of Senior Notes and Senior Subordinated Notes and (F) (1) the
purchase, redemption, retirement or other acquisition of New Senior Notes and any Permitted Notes
Refinancing Indebtedness in an aggregate amount not to exceed (x) $200,000,000 minus (y) the
aggregate amount of purchases, redemptions, retirements and acquisitions previously made pursuant
to this clause (1) and (2) the purchase, redemption, retirement or other acquisition of New Senior
Notes and any Permitted Notes Refinancing Indebtedness in an aggregate amount not to exceed the
Cumulative Net Income Amount at the time of such payment, provided that, with respect to
clauses (C), (D), (E) and (F), at the time of the applicable payment, no Default or Event of
Default shall have occurred and be continuing or would result therefrom; or



     (ii) amend or modify, or permit the amendment or modification of, any provision of the Finco
Loan, the Newco UK Loan, the Intermediate Holdings Loan, any Senior Note, any Senior Subordinated
Note, any Permitted Notes Refinancing Indebtedness, any Foreign Acquiror Loan, any Permitted
Receivables Document or any agreement (including any Senior Notes Document or Senior Subordinated
Notes Document) relating thereto, other than amendments or modifications that are not in any manner
materially adverse to Lenders and that do not affect the subordination provisions thereof (if any)
in a manner adverse to the Lenders, provided that the principal amount of any of the Finco
Loan, the Newco UK Loan and any Foreign Acquiror Loan may be converted into equity or otherwise
reduced to the extent permitted by Section 6.04.



     (c) Permit any Subsidiary to enter into any agreement or instrument that by its terms
restricts (i) the payment of dividends or distributions or the making of cash









 



136



advances by such Subsidiary to the U.S. Borrower or any Subsidiary that is a direct or
indirect parent of such Subsidiary or (ii) the granting of Liens by such Subsidiary pursuant to the
Security Documents, in each case other than those arising under any Loan Document, except, in each
case, restrictions existing by reason of: (A) restrictions imposed by applicable law; (B)
contractual encumbrances or restrictions in effect on the Closing Date under (x) any Senior Note
Document, any Senior Subordinated Note Document or any Permitted Receivables Document or (y) any
agreements related to any permitted renewal, extension or refinancing of any Indebtedness existing
on the Closing Date that does not expand the scope of any such encumbrance or restriction; (C) any
restriction on a Subsidiary imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Equity Interests or assets of a Subsidiary pending the
closing of such sale or disposition; (D) customary provisions in joint venture agreements and other
similar agreements applicable to joint ventures entered into in the ordinary course of business;
(E) any restrictions imposed by any agreement relating to secured Indebtedness permitted by this
Agreement to the extent that such restrictions apply only to the property or assets securing such
Indebtedness; (F) customary provisions contained in leases or licenses of intellectual property and
other similar agreements entered into in the ordinary course of business; and (G) customary
restrictions imposed on a Foreign Subsidiary that is not a Loan Party by any agreement relating to
Indebtedness of such Foreign Subsidiary permitted by this Agreement.



     SECTION 6.10. [Intentionally Omitted.]



     SECTION 6.11. Interest Coverage Ratio. Permit the ratio (the “Interest Coverage Ratio”) on
the last day of any fiscal quarter occurring in any period set forth below, for the four quarter
period ended as of such day of (a) EBITDA to (b) Cash Interest Expense to be less than the ratio
set forth below for such period; provided that to the extent any Asset Disposition or any Permitted
Business Acquisition (or any similar transaction or transactions for which a waiver or a consent of
the Required Lenders pursuant to Section 6.05 has been obtained) has occurred during the relevant
Test Period, the Interest Coverage Ratio shall be determined for the respective Test Period on a
Pro Forma Basis for such occurrences:









 



137


	 	 	 	 	 
	Test Period ending on:	 	Ratio:
	June 30, 2007
	 	 	2.75:1.00	 
	September 30, 2007
	 	 	2.75:1.00	 
	December 31, 2007
	 	 	2.75:1.00	 
	March 31, 2008
	 	 	2.75:1.00	 
	June 30, 2008
	 	 	2.75:1.00	 
	September 30, 2008
	 	 	2.75:1.00	 
	December 31, 2008
	 	 	3.00:1.00	 
	March 31, 2009
	 	 	3.00:1.00	 
	June 30, 2009
	 	 	3.00:1.00	 
	September 30, 2009
	 	 	3.00:1.00	 
	December 31, 2009
	 	 	3.00:1.00	 
	March 31, 2010
	 	 	3.00:1.00	 
	June 30, 2010
	 	 	3.00:1.00	 
	September 30, 2010
	 	 	3.00:1.00	 
	December 31, 2010
	 	 	3.00:1.00	 
	March 31, 2011
	 	 	3.00:1.00	 
	June 30, 2011
	 	 	3.00:1.00	 
	September 30, 2011
	 	 	3.00:1.00	 
	December 31, 2011
and thereafter
	 	 	3.25:1.00	 






     SECTION 6.12. Leverage Ratio. Permit the Leverage Ratio on the last day of any fiscal
quarter occurring in any period set forth below, to be in excess of the ratio set forth below for
such period:



	 	 	 	 	 
	Test Period ending on:	 	Ratio:
	June 30, 2007
	 	 	4.00:1.00	 
	September 30, 2007
	 	 	4.00:1.00	 
	December 31, 2007
	 	 	4.00:1.00	 
	March 31, 2008
	 	 	4.00:1.00	 
	June 30, 2008
	 	 	4.00:1.00	 
	September 30, 2008
	 	 	4.00:1.00	 
	December 31, 2008
	 	 	3.75:1.00	 
	March 31 ,2009
	 	 	3.75:1.00	 
	June 30, 2009
	 	 	3.75:1.00	 
	September 30, 2009
	 	 	3.75:1.00	 
	December 31, 2009
and thereafter
	 	 	3.50:1.00	 






     SECTION 6.13. Swap Agreements. Enter into any Swap Agreement, other than (a) Swap Agreements
required by any Permitted Receivables Financing, (b) Swap Agreements entered into in the ordinary
course of business to hedge or mitigate risks to which the U.S. Borrower or any Subsidiary is
exposed in the conduct of its business or the management of its liabilities and (c) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to









 



138



another floating rate or otherwise) with respect to any interest-bearing liability or
investment of the U.S. Borrower or any Subsidiary.



ARTICLE VII




Events of Default




     SECTION 7.01. Events of Default. In case of the happening of any of the following events
(“Events of Default”):



     (a) any representation or warranty made or deemed made by Holdings, Intermediate Holdings,
U.S. Borrower or any other Loan Party in any Loan Document, or any representation, warranty,
statement or information contained in any report, certificate, financial statement or other
instrument furnished in connection with or pursuant to any Loan Document, shall prove to have been
false or misleading in any material respect when so made, deemed made or furnished by Holdings,
Intermediate Holdings, the U.S. Borrower or any other Loan Party;



     (b) default shall be made in the payment of any principal of any Loan, any Ancillary Credit
Extension or the reimbursement with respect to any L/C 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 by acceleration thereof or otherwise;



     (c) default shall be made in the payment of any interest on any Loan, any Ancillary Credit
Extension or on any L/C Disbursement or in the payment of any Fee or any other amount (other than
an amount referred to in (b) above) due under any Loan Document, when and as the same shall become
due and payable, and such default shall continue unremedied for a period of five Business Days;



     (d) default shall be made in the due observance or performance by Holdings, Intermediate
Holdings, the U.S. Borrower or any of the Subsidiaries of any covenant, condition or agreement
contained in Section 5.01(a) (with respect to a Borrower), 5.05(a), 5.08, 5.10(d), 5.15(c) or in
Article VI;



     (e) default shall be made in the due observance or performance by Holdings, Intermediate
Holdings, the U.S. Borrower or any of the Subsidiaries of any covenant, condition or agreement
contained in any Loan Document (other than those specified in paragraphs (b), (c) and (d) above)
and such default shall continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the U.S. Borrower;



     (f) (i) any event or condition occurs that (A) results in any Material Indebtedness becoming
due prior to its scheduled maturity or (B) enables or permits (with all applicable grace periods
having expired) 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 or (ii) any Borrower
or any Subsidiary









 



139



shall fail to pay the principal of any Material Indebtedness at the stated final maturity
thereof, provided that this clause (f) 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 if
such sale or transfer is permitted hereunder and under the documents providing for such
Indebtedness;



     (g) there shall have occurred a Change in Control;



     (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in
a court of competent jurisdiction seeking (i) relief in respect of Holdings, Intermediate Holdings,
any Borrower or any of the Subsidiaries, or of a substantial part of the property or assets of
Holdings, Intermediate Holdings, any Borrower or any of the Subsidiaries, under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings, Intermediate Holdings, any
Borrower or any of the Subsidiaries or for a substantial part of the property or assets of
Holdings, Intermediate Holdings, any Borrower or any of the Subsidiaries or (iii) the winding-up or
liquidation of Holdings, Intermediate Holdings, any Borrower or any of the Subsidiaries (other than
in a transaction permitted by Section 6.05); and 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;



     (i) Holdings, Intermediate Holdings, any Borrower or any of the Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or the filing of any petition described
in paragraph (h) above, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings, Intermediate Holdings, the
U.S. Borrower or any of the Subsidiaries or for a substantial part of the property or assets of
Holdings, Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries, (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) become unable, admit in writing its
inability or fail generally to pay its debts as they become due;



     (j) the failure by Holdings, Intermediate Holdings, the U.S. Borrower or any Subsidiary to
pay one or more final judgments aggregating in excess of $50,000,000, which judgments are not
discharged or effectively waived or stayed for a period of 30 consecutive days, or any action shall
be legally taken by a judgment creditor to levy upon assets or properties of Holdings, Intermediate
Holdings, the U.S. Borrower or any Subsidiary to enforce any such judgment;



     (k) (i) a Reportable Event or Reportable Events shall have occurred with respect to any Plan
or a trustee shall be appointed by a United States district court to administer any Plan, (ii) the
PBGC shall institute proceedings (including giving notice of









 



140



intent thereof) to terminate any Plan or Plans, (iii) Holdings, Intermediate Holdings, the
U.S. Borrower, any Subsidiary or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such
Multiemployer Plan and such person does not have reasonable grounds for contesting such Withdrawal
Liability or is not contesting such Withdrawal Liability in a timely and appropriate manner, (iv)
Holdings, Intermediate Holdings, the U.S. Borrower, any Subsidiary or any ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization (or, after the effectiveness of Title II of the Pension Act, that it is in
endangered or critical status, within the meaning of Section 305 of ERISA) or is being terminated,
within the meaning of Title IV of ERISA, (v) Holdings, Intermediate Holdings, the U.S. Borrower,
any Subsidiary or any ERISA Affiliate shall engage in any “prohibited transaction” (as defined in
Section 406 of ERISA or Section 4975 of the Code) involving any Plan or (vi) any other similar
event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such events or conditions, if
any, could reasonably be expected to have a Material Adverse Effect;



     (l) (i) any Loan Document shall for any reason be asserted by Holdings, Intermediate
Holdings, the U.S. Borrower or any of the Subsidiaries not to be a legal, valid and binding
obligation of any party thereto, (ii) any security interest purported to be created by any Security
Document and to extend to assets that are not immaterial to Holdings, Intermediate Holdings, the
U.S. Borrower and the Subsidiaries on a consolidated basis shall cease to be, or shall be asserted
by the U.S. Borrower or any other Loan Party not to be, a valid and perfected security interest
(having the priority required by this Agreement or the relevant Security Document) in the
securities, assets or properties covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Collateral Agent to maintain possession of
certificates actually delivered to it representing securities pledged under the Collateral
Agreements or to file Uniform Commercial Code continuation statements and except to the extent that
such loss is covered by a lender’s title insurance policy and the Administrative Agent shall be
reasonably satisfied with the credit of such insurer, (iii) the Guarantees pursuant to the Security
Documents by Holdings, Intermediate Holdings or the Subsidiary Loan Parties of any of the
Obligations shall cease to be in full force and effect (other than in accordance with the terms
thereof), or shall be asserted by Holdings, Intermediate Holdings, the U.S. Borrower or any
Subsidiary Loan Party not to be in effect or not to be legal, valid and binding obligations or (iv)
the Obligations of the Borrowers or the Guarantees thereof by Holdings, Intermediate Holdings and
the Subsidiary Loan Parties pursuant to the Security Documents shall cease to constitute senior
indebtedness under the subordination provisions of the Senior Subordinated Note Documents or such
subordination provisions shall be invalidated or otherwise cease, or shall be asserted by Holdings,
Intermediate Holdings, the U.S. Borrower or any Subsidiary to be invalid or to cease, to be legal,
valid and binding obligations of the parties thereto, enforceable in accordance with their terms;


then, and in every such event (other than an event with respect to a Borrower described in
paragraph (h) or (i) above), and at any time thereafter during the continuance of such








 



141


event, the Administrative Agent, at the request of the Required Lenders, shall, by notice to the
Borrowers, take any or all of the following actions, at the same or different times: (i) terminate
forthwith the Commitments, (ii) declare the Loans then outstanding to be forthwith due and payable
in whole or in part, whereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrowers accrued hereunder and under any other Loan Document, shall become forthwith due and
payable, without presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrowers, anything contained herein or in any other Loan Document
to the contrary notwithstanding and (iii) demand cash collateral pursuant to Section 2.05(j); and
in any event with respect to a Borrower described in paragraph (h) or (i) above, the Commitments
shall automatically terminate, the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the Borrowers accrued
hereunder and under any other Loan Document, shall automatically become due and payable and the
Administrative Agent shall be deemed to have made a demand for cash collateral to the full extent
permitted under Section 2.05(j), without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by the Borrowers, anything contained herein or in
any other Loan Document to the contrary notwithstanding.




     SECTION 7.02. Exclusion of Immaterial Subsidiaries. Solely for the purposes of determining
whether a Default has occurred under clause (h) or (i) of Section 7.01, any reference in any such
clause to any Subsidiary shall be deemed not to include any Subsidiary affected by any event or
circumstance referred to in any such clause that did not, as of the last day of the fiscal quarter
of the U.S. Borrower most recently ended, have assets with a value in excess of 5.0% of the
Consolidated Total Assets or 5.0% of total revenues of the U.S. Borrower and the Subsidiaries as of
such date, provided that if it is necessary to exclude more than one Subsidiary from clause (h) or
(i) of Section 7.01 pursuant to this Section 7.02 in order to avoid an Event of Default thereunder,
all excluded Subsidiaries shall be considered to be a single consolidated Subsidiary for purposes
of determining whether the condition specified above is satisfied.



     SECTION 7.03. U.S. Borrower’s Right to Cure. (a) Financial Performance Covenants.
Notwithstanding anything to the contrary contained in Section 7.01, in the event that the U.S.
Borrower fails to comply with the requirements of any Financial Performance Covenant, until the
expiration of the 10th day subsequent to the date the certificate calculating such
Financial Performance Covenant is required to be delivered pursuant to Section 5.04(c), Holdings
(or the surviving entity in any merger of Holdings permitted under Section 6.05(b)) shall have the
right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to its
capital, and, in each case, if applicable, to contribute any such cash to the capital of
Intermediate Holdings (which shall contribute all such cash to the capital of the U.S. Borrower)
(collectively, the “Cure Right”), and upon the receipt by U.S. Borrower of such cash (the “Cure
Amount”) pursuant to the exercise of such Cure Right such Financial Performance Covenant shall be
recalculated giving effect to the following pro forma adjustments:









 



142



     (i) EBITDA shall be increased, solely for the purpose of measuring the
Financial Performance Covenants and not for any other purpose under this Agreement,
by an amount equal to the Cure Amount; and




     (ii) If, after giving effect to the foregoing recalculations, the U.S.
Borrower shall then be in compliance with the requirements of all Financial
Performance Covenants, the U.S. Borrower shall be deemed to have satisfied the
requirements of the Financial Performance Covenants as of the relevant date of
determination with the same effect as though there had been no failure to comply
therewith at such date, and the applicable breach or default of the Financial
Performance Covenants that had occurred shall be deemed cured for this purposes of
the Agreement.



     (b) Limitation on Exercise of Cure Right. Notwithstanding anything herein to the contrary,
(a) in each four-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure
Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at
least four consecutive fiscal quarters during which the Cure Right is not exercised and (c) in each
12-month period, the sum of all Cure Amounts contributed to (or received by) the U.S. Borrower
pursuant to this Section 7.03 shall not exceed $200,000,000.



ARTICLE VIII




The Agents




     SECTION 8.01. Appointment. (a) In order to expedite the transactions contemplated by this
Agreement, (i) JPMorgan Chase Bank, N.A. is hereby appointed to act as Administrative Agent,
Collateral Agent and an Issuing Bank and (ii) Bank of America, N.A. is hereby appointed to act as
Syndication Agent. Each of the Lenders, each assignee of any such Lender and each Ancillary Lender
hereby irrevocably authorizes the Administrative Agent to take such actions on behalf of such
Lender, assignee or Ancillary Lender and to exercise such powers as are specifically delegated to
the Administrative Agent by the terms and provisions hereof and of the other Loan Documents,
together with such actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders, each Ancillary Lender and each Issuing Bank,
without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and such
Issuing Bank all payments of principal of and interest on the Loans, all payments in respect of L/C
Disbursements and all other amounts due to the Lenders and such Issuing Bank hereunder, and
promptly to distribute to each Lender or such Issuing Bank its proper share of each payment so
received; (b) to give notice on behalf of each of the Lenders and each of the Ancillary Lenders of
any Event of Default specified in this Agreement of which the Administrative Agent has actual
knowledge acquired in connection with the performance of its duties as Administrative Agent
hereunder; and (c) to distribute to each Lender and each Ancillary Lender copies of all notices,
financial statements and other materials delivered by any Borrower pursuant to this Agreement as
received by the









 



143

Administrative Agent. Without limiting the generality of the foregoing, the Agents are hereby
expressly authorized to execute any and all documents (including releases) with respect to the
Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in
accordance with the provisions of this Agreement and the Security Documents. In the event that any
party other than the Lenders and the Agents shall participate in all or any portion of the
Collateral pursuant to the Security Documents, all rights and remedies in respect of such
Collateral shall be controlled by the Collateral Agent.




     (b) Neither the Agents nor any of their respective directors, officers, employees or agents
shall be liable as such for any action taken or omitted by any of them except for its or his own
gross negligence or wilful misconduct, or be responsible for any statement, warranty or
representation herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or observance by the
Borrowers or any other Loan Party of any of the terms, conditions, covenants or agreements
contained in any Loan Document. The Agents shall not be responsible to the Lenders or any
Ancillary Lender for the due execution, genuineness, validity, enforceability or effectiveness of
this Agreement or any other Loan Documents or other instruments or agreements. The Agents shall in
all cases be fully protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders and, except as otherwise specifically provided herein,
such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders
and all the Ancillary Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to be genuine and
correct and to have been signed or sent by the proper person or persons. Neither the Agents nor
any of their respective directors, officers, employees or agents shall have any responsibility to
any Borrower or any other Loan Party or any other party hereto on account of the failure, delay in
performance or breach by, or as a result of information provided by, any Lender, Ancillary Lender
or Issuing Bank of any of its obligations hereunder or to any Lender, Ancillary Lender or Issuing
Bank on account of the failure of or delay in performance or breach by any other Lender, Ancillary
Lender or Issuing Bank or any Borrower or any other Loan Party of any of their respective
obligations hereunder or under any other Loan Document or in connection herewith or therewith.
Each Agent may execute any and all duties hereunder by or through agents or employees and shall be
entitled to rely upon the advice of legal counsel selected by it with respect to all matters
arising hereunder and shall not be liable for any action taken or suffered in good faith by it in
accordance with the advice of such counsel.



     SECTION 8.02. Nature of Duties. The Lenders and the Ancillary Lenders hereby acknowledge
that no Agent shall be under any duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by
the Required Lenders. The Lenders and the Ancillary Lenders further acknowledge and agree that so
long as an Agent shall make any determination to be made by it hereunder or under any other Loan
Document in good faith, such Agent shall have no liability in respect of such determination to any
person. Notwithstanding any provision to the contrary elsewhere in this Agreement, the









 



144



Administrative Agent shall not have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into the Loan Documents or
otherwise exist against the Administrative Agent. Each Lender recognizes and agrees that the
Syndication Agent shall have no duties or responsibilities under this Agreement or any other Loan
Document, or any fiduciary relationship with any Lender or Ancillary Lenders, and shall have no
functions, responsibilities, duties, obligations or liabilities for acting as the Syndication Agent
hereunder.



     SECTION 8.03. Resignation by the Agents. Subject to the appointment and acceptance of a
successor Agent as provided below, any Agent may resign at any time by notifying the Lenders and
the U.S. Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint
a successor with the consent of the U.S. Borrower (not to be unreasonably withheld or delayed). If
no successor shall have been so appointed by the Required Lenders and approved by the U.S. Borrower
and shall have accepted such appointment within 45 days after the retiring Agent gives notice of
its resignation, then the retiring Agent may, on behalf of the Lenders and the Ancillary Lenders
with the consent of the U.S. Borrower (not to be unreasonably withheld or delayed), appoint a
successor Agent which shall be a bank with an office in New York, New York and an office in London,
England (or a bank having an Affiliate with such an office) having a combined capital and surplus
having a Dollar Equivalent that is not less than $500,000,000 or an Affiliate of any such bank.
Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor shall
succeed to and become vested with all the rights, powers, privileges and duties of the retiring
Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After
the Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall continue
in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was
acting as Agent.



     SECTION 8.04. Each Agent in its Individual Capacity. With respect to the Loans made by it
hereunder and Ancillary Facilities made available by it pursuant to Section 2.22, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as any other Lender and
may exercise the same as though it were not an Agent, and the Agents and their Affiliates may
accept deposits from, lend money to and generally engage in any kind of business with any Borrower
or any of the Subsidiaries or other Affiliates thereof as if it were not an Agent.



     SECTION 8.05. Indemnification. Each Lender and each Ancillary Lender agrees (a) to reimburse
the Agents, on demand, in the amount of its pro rata share (based on its Commitments hereunder (or
if such Commitments shall have expired or been terminated, in accordance with the respective
principal amounts of its applicable outstanding Loans or participations in L/C Disbursements, as
applicable)) of any reasonable expenses incurred for the benefit of the Lenders and Ancillary
Lenders by the Agents, including counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Lenders and Ancillary Lenders, which shall not have been
reimbursed by the Loan Parties and (b) to indemnify and hold harmless each Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and
against any and all liabilities, Taxes, obligations, losses, damages,









 



145



penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Agent or
any of them in any way relating to or arising out of this Agreement or any other Loan Document or
any action taken or omitted by it or any of them under this Agreement or any other Loan Document,
to the extent the same shall not have been reimbursed by the Loan Parties, provided that no Lender
or Ancillary Lender shall be liable to an Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the gross negligence or wilful misconduct of such Agent or any of its directors, officers,
employees or agents.



     SECTION 8.06. Lack of Reliance on Agents. Each Lender and each Ancillary Lender acknowledges
that it has, independently and without reliance upon the Agents, any Lender or any Ancillary 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 and each Ancillary Lender also
acknowledges that it will, independently and without reliance upon the Agents, any other Lender or
any Ancillary 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 or any other Loan Document, any related agreement or any document furnished
hereunder or thereunder.



     SECTION 8.07. Designation of Affiliates for Foreign Currency Loans. The Administrative Agent
shall be permitted from time to time to designate one of its Affiliates to perform the duties to be
performed by the Administrative Agent hereunder with respect to Loans and Borrowings denominated in
Foreign Currencies and Foreign Currency Letters of Credit. The provisions of this Article VIII
shall apply to any such Affiliate mutatis mutandis.



ARTICLE IX




Miscellaneous




     SECTION 9.01. Notices. (a) 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:




     (i) if to any Borrower, to it at TRW Automotive Inc., 12001 Tech Center
Drive, Livonia, MI 48150, Attention of Executive Vice President and General Counsel
(Telecopy No. (734) 855-2473), and if to Holdings, to it in care of the U.S.
Borrower, in each case with a copy to The Blackstone Group, 345 Park Avenue, New
York, New York 10154, Attention of Josh Astrof (Telecopy No. (212) 583-5483);




     (ii) if to the Administrative Agent or the Collateral Agent, to (A) if with
respect to the Term Facility, U.S. Revolving Facility or Loans under the Global
Revolving Facility made out of a U.S. Lending Office, JPMorgan Chase Bank, N.A.,
Loan and Agency Services Group, 1111









 



146



Fannin, 10th Floor, Houston, Texas 77002, Attention of Sharon Cote
(Telecopy No. (713) 750-2666) and (B) if with respect to Loans under the Global
Revolving Facility made out of a Global Lending Office, J.P. Morgan Europe Limited,
125 London Wall, 9th floor, London EC2Y 5AJ United Kingdom, LW09-1501, Attention of
Claire Johnson (Telecopy No. (44-207-777-2360), in each case with a copy to
JPMorgan Chase Bank, N.A., 270 Park Avenue, New York, New York 10017, Attention of
Richard Duker (Telecopy No. (212) 270-5127);




     (iii) if to an Issuing Bank other than the Administrative Agent, to it at the
address or telecopy number set forth separately in writing;




     (iv) if to any Ancillary Lender, to it at the address and telecopy number set
forth in the applicable Ancillary Facility Document; and




     (v) if such notice relates to a Global Revolving Facility Borrowing
denominated in a Foreign Currency, to the London Administrative Office.



     (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
Applicable Agent and the applicable Lender. Each of the Administrative Agent, the Collateral Agent
and the U.S. Borrower (on behalf of itself and the Foreign Subsidiary Borrowers) may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided, further, that approval of such
procedures may be limited to particular notices or communications.



     (c) 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 if delivered
by hand or overnight courier service, sent by telecopy or (to the extent permitted by paragraph (b)
above) electronic means or on the date five Business Days after dispatch by certified or registered
mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as
provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party
given in accordance with this Section 9.01.



     (d) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto.



     SECTION 9.02. Survival of Agreement. All covenants, agreements, representations and
warranties made by the U.S. Borrower and the Loan Parties herein, in the other Loan Documents and
in the certificates or other instruments prepared or delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been relied upon by the
Lenders, each Issuing Bank and each Ancillary Lender and shall survive the making by the Lenders of
the Loans, the execution and delivery of the Loan Documents and the issuance of the Letters of
Credit, regardless of









 



147



any investigation made by such persons or on their behalf, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or L/C Disbursement, any
extension of credit under Ancillary Facility remains outstanding 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 been terminated. Without prejudice
to the survival of any other agreements contained herein, indemnification and reimbursement
obligations contained herein (including pursuant to Sections 2.13, 2.15, 2.18 and 9.05) shall
survive the payment in full of the principal and interest hereunder, the expiration of the Letters
of Credit and the termination of the Commitments or this Agreement.



     SECTION 9.03. Binding Effect. This Agreement shall become effective when it shall have been
executed by Holdings, the U.S. Borrower and the Agents and when the Administrative Agent shall have
received copies 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 Holdings, the Borrowers,
each Issuing Bank, the Agents and each Lender and their respective permitted successors and
assigns.



     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 any Issuing Bank that issues any Letter of Credit),
except that (i) other than pursuant to a merger permitted by Section 6.05(b) or 6.05(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 a 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 any 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 Agents, each 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 U.S. Borrower; provided that no consent of the U.S. Borrower
shall be required for (1) an assignment of a Term Loan to a Lender, an
Affiliate of a Lender or an Approved Fund or (2) if an Event of Default
has occurred and is continuing, an assignment of any Loan to any assignee
(provided that any liability of the Borrowers to an assignee that is an
Approved Fund or Affiliate of the assigning Lender under Section 2.15,
2.17 or 2.21 shall be









 



148



limited to the amount, if any, that would have been payable
thereunder by such Borrower in the absence of such assignment); and




     (B) the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment of a Term Loan to
a Lender, an Affiliate of a Lender or Approved Fund immediately prior to
giving effect to such assignment.




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




     (A) except in the case of an assignment to a Lender, an Affiliate of
a Lender or an Approved Fund or an assignment of the entire remaining
amount of the assigning Lender’s Commitment, the amount of the Commitment
of the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than (x)
$5,000,000, in the case of Revolving Credit Commitments and Revolving
Loans denominated in Dollars, (y) the smallest amount of the applicable
Foreign Currency that is a multiple of 1,000,000 units of such Foreign
Currency and has a Dollar Equivalent in excess of $5,000,000, in the case
of Revolving Loans denominated in a Foreign Currency and (z) $1,000,000,
in the case of Tranche B-1 Term Loans, Loans in respect of any Incremental
Extension of Credit in the form of a tranche B facility, Tranche A-1 Term
Loans and Loans in respect of any Incremental Extension of Credit in the
form of a tranche A facility, unless each of the U.S. Borrower and the
Administrative Agent otherwise consent; provided that no such consent of
the U.S. Borrower shall be required if an Event of Default under paragraph
(b), (c), (h) or (i) of Section 7.01 has occurred and is continuing; and
provided, further, that for purposes of determining compliance with the
minimum assignment amount in this clause (i)(A), simultaneous assignments
by an assigning Lender to two or more Approved Funds shall be aggregated;




     (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;




     (C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, 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 in









 



149



which the assignee designates one or more Credit Contacts (as defined
in the Administrative Questionnaire) to whom all syndicate–level
information (which may contain material non-public information about the
Loan Parties and their related parties or their respective securities)
will be made available and who may receive such information in accordance
with the assignee’s compliance procedures and applicable laws, including
Federal and state securities laws; and




     (E) no assignment of Global Revolving Facility Loans or Global
Revolving Facility Commitments shall be permitted to be made to an
assignee that cannot make Global Revolving Facility Loans in Dollars and
each of the Foreign Currencies.



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



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




     (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 Acceptance the assignee thereunder shall be a party hereto and, to
the extent of the interest assigned by such Assignment and Acceptance, 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
Acceptance, be released from its obligations under this Agreement (and, in the case
of an Assignment and Acceptance 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
9.05). 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 the
U.S. Borrower, shall maintain at one of its offices a copy of each Assignment and
Acceptance 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 L/C Disbursements owing to, each Lender pursuant to the terms hereof from time
to time (the “Register”). The entries in the Register shall be









 



150



conclusive, and the U.S. Borrower, the Agents, each 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 U.S. Borrower, any 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 Acceptance 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 Acceptance and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.



     (c) (i) Any Lender may, without the consent of the U.S. Borrower, the Administrative Agent,
any Issuing Bank or any 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 Agents, each 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 Section 9.04(a)(i) or
clauses (i) (disregarding for this purpose the parenthetical contained therein), (ii), (iii), (iv),
(v) or (vi) of the first proviso to Section 9.08(b) that affects such Participant. Subject to
paragraph (c)(ii) of this Section, each of the Borrowers 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 9.06 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 U.S. Borrower’s prior written consent.









 



151

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 U.S. Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrowers, 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 any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto.



     SECTION 9.05. Expenses; Indemnity. (a) The U.S. Borrower agrees to pay all reasonable
documented out-of-pocket expenses (including documentary Taxes) incurred by the Agents in
connection with the preparation of this Agreement and the other Loan Documents, or by the Agents in
connection with the syndication of the Commitments or the administration of this Agreement
(including expenses incurred in connection with due diligence and initial and ongoing Collateral
examination to the extent incurred with the reasonable prior approval of the U.S. Borrower and the
reasonable fees, disbursements and the charges for no more than one counsel in each jurisdiction
where Collateral is located) or in connection with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions hereby contemplated shall be
consummated) or incurred by the Agents, any Lender or any Ancillary Lender in connection with the
enforcement or protection of their rights in connection with this Agreement and the other Loan
Documents, in connection with the Loans made, the Ancillary Facilities made available pursuant to
Section 2.22 or the Letters of Credit issued hereunder, including the reasonable fees, charges and
disbursements of Cravath, Swaine & Moore LLP, counsel for the Administrative Agent and the
Collateral Agent, and, in connection with any such enforcement or protection, the reasonable fees,
charges and disbursements of any other counsel (including the reasonable allocated costs of
internal counsel if a Lender elects to use internal counsel in lieu of outside counsel) for the
Agents, any Issuing Bank, any Lender or any Ancillary Lender (but no more than one such counsel for
any Lender or any Ancillary Lender).



     (b) The U.S. Borrower agrees to indemnify the Agents, each Issuing Bank, each Lender, each
Ancillary Lender and each of their respective directors, trustees, officers, employees and agents
(each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel
fees, charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this Agreement or any
other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto and thereto of their respective obligations thereunder or the consummation of
the Transactions and the other transactions contemplated hereby, (ii) the use of the proceeds of
the Loans or the use of any Letter of Credit or (iii) any claim, litigation, investigation or
proceeding relating to any of the









 



152



foregoing, whether or not 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 a final and
nonappealable judgment to have resulted from the bad faith, gross negligence or wilful misconduct
of, or material breach of this Agreement by, such Indemnitee (treating, for this purpose only, any
Agent, any Issuing Bank, any Lender, any Ancillary Lender and any of their respective Related
Parties as a single Indemnitee). Subject to and without limiting the generality of the foregoing
sentence, the U.S. Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel or consultant fees, charges and disbursements, incurred by or asserted against
any Indemnitee arising out of, in any way connected with, or as a result of (A) any Environmental
Liability related in any way to Holdings, Intermediate Holdings, the U.S. Borrower or any of the
Subsidiaries, or (B) any actual or alleged presence, Release or threatened Release of Hazardous
Materials on any Property or any property owned, leased or operated by any predecessor of Holdings,
Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries, 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 wilful misconduct of such
Indemnitee or any of its Related Parties. The provisions of this Section 9.05 shall remain
operative and in full force and effect regardless of the expiration of the term of this Agreement,
the consummation of the transactions contemplated hereby, the repayment of any of the Obligations,
the invalidity or unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of any Agent, any Issuing Bank, any Lender or
any Ancillary Lender. All amounts due under this Section 9.05 shall be payable on written demand
therefor.



     (c) Unless an Event of Default shall have occurred and be continuing, the U.S. Borrower shall
be entitled to assume the defense of any action for which indemnification is sought hereunder with
counsel of its choice at its expense (in which case the U.S. Borrower shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by an Indemnitee except as
set forth below); provided, however, that such counsel shall be reasonably satisfactory to each
such Indemnitee. Notwithstanding the U.S. Borrower’s election to assume the defense of such action,
each Indemnitee shall have the right to employ separate counsel and to participate in the defense
of such action, and the U.S. Borrower shall bear the reasonable fees, costs and expenses of such
separate counsel, if (i) the use of counsel chosen by the U.S. Borrower to represent such
Indemnitee would present such counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the U.S. Borrower and such Indemnitee
and such Indemnitee shall have reasonably concluded that there may be legal defenses available to
it that are different from or additional to those available to the U.S. Borrower (in which case the
U.S. Borrower shall not have the right to assume the defense or such action on behalf of such
Indemnitee); (iii) the U.S. Borrower shall not have employed counsel reasonably satisfactory to
such Indemnitee to represent it within a reasonable time after notice of the institution of such









 



153



action; or (iv) the U.S. Borrower shall authorize such Indemnitee to employ separate counsel
at the U.S. Borrower’s expense. The U.S. Borrower will not be liable under this Agreement for any
amount paid by an Indemnitee to settle any claims or actions if the settlement is entered into
without the U.S. Borrower’s consent, which consent may not be withheld or delayed unless such
settlement is unreasonable in light of such claims or actions against, and defenses available to,
such Indemnitee.



     (d) Notwithstanding anything to the contrary in this Section 9.05, this Section 9.05 shall
not apply to Taxes, it being understood that the U.S. Borrower’s only obligations with respect to
Taxes shall arise under Sections 2.15 and 2.17.



     SECTION 9.06. Right of Set-off. If an Event of Default shall have occurred and be
continuing, each Lender, each Issuing Bank and each Ancillary Lender is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender, such Issuing Bank or such Ancillary Lender to or for
the credit or the account of Holdings, Intermediate Holdings, the U.S. Borrower or any Subsidiary
against any of and all the obligations of Holdings or the U.S. Borrower now or hereafter existing
under this Agreement or any other Loan Document held by such Lender, such Issuing Bank or such
Ancillary Lender, irrespective of whether or not such Lender, such Issuing Bank or such Ancillary
Lender shall have made any demand under this Agreement or such other Loan Document and although the
obligations may be unmatured. The rights of each Lender, each Issuing Bank and each Ancillary
Lender under this Section 9.06 are in addition to other rights and remedies (including other rights
of set-off) that such Lender, such Issuing Bank or such Ancillary Lender may have.



     SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN
LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.



     SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the Agents, any Issuing Bank,
any Lender or any Ancillary Lender in exercising any right or power hereunder or under any 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 Agents, each Issuing Bank, the Lenders and each Ancillary Lender
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 this Agreement or any other
Loan Document or consent to any departure by Holdings, Intermediate Holdings, any Borrower or any
other Loan Party therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on Holdings, Intermediate
Holdings, any Borrower or any other Loan Party in any









 



154



case shall entitle such person to any other or further notice or demand in similar or other
circumstances.



     (b) Except as provided in Section 2.23 with respect to an Incremental Facility Amendment or
as provided in the definition of “Restatement Effective Date”, neither this Agreement nor any other
Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in
the case of this Agreement, pursuant to an agreement or agreements in writing entered into by
Holdings, Intermediate Holdings, the Borrowers and the Required Lenders, (y) in the case of any
Ancillary Facility Document, pursuant to an agreement or agreements in writing entered into by each
party thereto and (z) in the case of any other Loan Document, pursuant to an agreement or
agreements in writing entered into by each party thereto and the Collateral Agent and consented to
by the Required Lenders; provided, however, that no such agreement shall (i) decrease or forgive
the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any
Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected
thereby, (ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or
L/C Participation Fees or other fees of any Lender without the prior written consent of such
Lender, (iii) extend, waive or change the amount due on any Installment Date or extend any date on
which payment of interest on any Loan or any L/C Disbursement is due, without the prior written
consent of each Lender adversely affected thereby, (iv) amend or modify the provisions of Section
2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required
thereby, without the prior written consent of each Lender adversely affected thereby, (v) amend or
modify the provisions of this Section or the definition of “Required Lenders”, “Majority Lenders”
or any other provision hereof specifying the number or percentage of Lenders or Ancillary Lenders
required to waive, amend or modify any rights hereunder or make any determination or grant any
consent hereunder, without the prior written consent of each Lender or Ancillary Lender adversely
affected thereby (it being understood that, with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement may be included in the determination of the
Required Lenders on substantially the same basis as the Loans and Commitments are included on the
Restatement Effective Date), (vi) except as set forth in Section 5.15, release all or substantially
all the Collateral or release any of Holdings, Intermediate Holdings or any Subsidiary Loan Party
from its Guarantee under the U.S. Collateral Agreement or the Foreign Guarantee, as applicable,
unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of
such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this
Agreement, without the prior written consent of each Lender adversely affected thereby, (vii)
effect any waiver, amendment or modification that by its terms adversely affects the rights in
respect of payments or collateral of Lenders participating in any Facility differently from those
of Lenders participating in other Facilities, without the consent of the Majority Lenders
participating in the adversely affected Facility, (viii) change the relative rights in respect of
payments or collateral of the Lenders participating in different Facilities or Ancillary Facilities
without the consent of the Majority Lenders participating in each adversely affected Facility and
each adversely affected Ancillary Lender or (ix) amend or modify the provisions of Section 5.15 or
the definition of “Collateral Release Period” without the prior written consent of each Lender
adversely affected thereby; provided,









 



155



further, that no such agreement shall amend, modify or otherwise affect the rights or duties
of the Administrative Agent or an Issuing Bank hereunder without the prior written consent of the
Administrative Agent or such Issuing Bank acting as such at the effective date of such agreement,
as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by
this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any
assignee of such Lender.



     SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if
at any time the applicable interest rate, together with all fees and charges that are treated as
interest under applicable law (collectively, the “Charges”), as provided for herein or in any other
document executed in connection herewith, or otherwise contracted for, charged, received, taken or
reserved by any Lender, any Ancillary Lender or any Issuing Bank, shall exceed the maximum lawful
rate (the “Maximum Rate”) that may be contracted for, charged, taken, received or reserved by such
Lender in accordance with applicable law, the rate of interest payable hereunder, together with all
Charges payable to such Lender, such Ancillary Lender or such Issuing Bank, shall be limited to the
Maximum Rate, provided that such excess amount shall be paid to such Lender, such Ancillary Lender
or such Issuing Bank on subsequent payment dates to the extent not exceeding the legal limitation.



     SECTION 9.10. Entire Agreement. This Agreement, the other Loan Documents and the agreements
regarding certain Fees referred to herein constitute the entire contract between the parties
relative to the subject matter hereof. Any previous agreement among or representations from the
parties with respect to the subject matter hereof is superseded by this Agreement and the other
Loan Documents. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is
intended to confer upon any party other than the parties hereto and thereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement or the other Loan Documents.



     SECTION 9.11. 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 RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS. 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 AND THE OTHER LOAN DOCUMENTS,
AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.



     SECTION 9.12. Severability. In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of









 



156



the remaining provisions contained herein and therein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of which comes as
close as possible to that of the invalid, illegal or unenforceable provisions.



     SECTION 9.13. Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall constitute an original but all of which, when taken together, shall constitute but
one contract, and shall become effective as provided in Section 9.03.



     SECTION 9.14. 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 are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.



     SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each of Holdings and each
Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the United States of
America sitting in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the other Loan Documents, 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 shall affect any right that any Lender, any
Issuing Bank or any Ancillary Lender may otherwise have to bring any action or proceeding relating
to this Agreement or the other Loan Documents against Holdings, Intermediate Holdings, any Borrower
or any Loan Party or their properties in the courts of any jurisdiction.



     (b) Each of Holdings and 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 the other Loan Documents in any New York State or federal court. 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.



     SECTION 9.16. Confidentiality. Each of the Lenders, each Issuing Bank, each Ancillary Lender
and each of the Agents agrees that it shall maintain in confidence any Information relating to
Holdings, Intermediate Holdings, the U.S. Borrower and the other Loan Parties furnished to it by or
on behalf of Holdings, Intermediate Holdings, the U.S. Borrower or the other Loan Parties (other
than information that (a) has become generally available to the public other than as a result of a
disclosure by such party, (b) has been independently developed by such Lender, such Issuing Bank,
such Ancillary Lender or such Agent without violating this Section 9.16 or (c) was available to
such Lender, such









 



157



Issuing Bank, such Ancillary Lender or such Agent from a third party having, to such person’s
knowledge, no obligations of confidentiality to Holdings, Intermediate Holdings, the U.S. Borrower
or any other Loan Party) and shall not reveal the same other than to its directors, trustees,
officers, employees and advisors with a need to know or to any person that approves or administers
the Loans on behalf of such Lender or the Ancillary Facility on behalf of such Lender (so long as
each such person shall have been instructed to keep the same confidential in accordance with this
Section 9.16), except: (A) to the extent necessary to comply with law or any legal process or the
requirements of any Governmental Authority, the National Association of Insurance Commissioners or
of any securities exchange on which securities of the disclosing party or any Affiliate of the
disclosing party are listed or traded, (B) as part of normal reporting or review procedures to
Governmental Authorities or the National Association of Insurance Commissioners, (C) to its parent
companies, Affiliates or auditors (so long as each such person shall have been instructed to keep
the same confidential in accordance with this Section 9.16), (D) in order to enforce its rights
under any Loan Document in a legal proceeding, (E) to any pledgee referred to in Section 9.04(d) or
any prospective assignee of, or prospective Participant in, any of its rights under this Agreement
(so long as such person shall have been instructed to keep the same confidential in accordance with
this Section 9.16) and (F) to any direct or indirect contractual counterparty in Swap Agreements or
such contractual counterparty’s professional advisor (so long as such contractual counterparty or
professional advisor to such contractual counterparty agrees to be bound by the provisions of this
Section).



     For the purposes of this Section 9.16, “Information” means all information received from any
Loan Party relating to any Loan Party, any Affiliate thereof or any of their respective businesses,
other than any such information that is publicly available to any Agent or any Lender prior to
disclosure by any Loan Party other than as a result of a breach of this Section 9.16.



     EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.16 FURNISHED TO IT PURSUANT
TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE LOAN PARTIES AND THEIR
AFFILIATES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES
REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL
AND STATE SECURITIES LAWS.



     ALL INFORMATION, INCLUDING WAIVERS AND AMENDMENTS, FURNISHED BY THE LOAN PARTIES OR THE
ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE LOAN
PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH









 



158



LENDER REPRESENTS TO THE LOAN PARTIES AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN
ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.



     SECTION 9.17. Conversion of Currencies. (a) If, for the purpose of obtaining judgment in
any court, it is necessary to convert a sum owing hereunder in one currency into another currency,
each party hereto (including any Foreign Subsidiary Borrower) agrees, to the fullest extent that it
may effectively do so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures in the relevant jurisdiction the first currency could be purchased with
such other currency on the Business Day immediately preceding the day on which final judgment is
given.



     (b) The obligations of each Borrower in respect of any sum due to any party hereto or any
holder of the obligations owing hereunder (the “Applicable Creditor”) shall, notwithstanding any
judgment in a currency (the “Judgment Currency”) other than the currency in which such sum is
stated to be due hereunder (the “Agreement Currency”), be discharged only to the extent that, on
the Business Day following receipt by the Applicable Creditor of any sum adjudged to be so due in
the Judgment Currency, the Applicable Creditor may in accordance with normal banking procedures in
the relevant jurisdiction purchase the Agreement Currency with the Judgment Currency; if the amount
of the Agreement Currency so purchased is less than the sum originally due to the Applicable
Creditor in the Agreement Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Applicable Creditor against such loss. The
obligations of the Borrowers contained in this Section 9.17 shall survive the termination of this
Agreement and the payment of all other amounts owing hereunder.



     SECTION 9.18. USA PATRIOT Act. Each Lender hereby notifies the Borrowers that pursuant to
the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies the
Borrowers, which information includes the name and address of each Borrower and other information
that will allow such Lender to identify each Borrower in accordance with the Act.



ARTICLE X




Ancillary Facility Adjustments




     SECTION 10.01. Exchange of Interests in Ancillary Facilities. (a) On the CAM Exchange Date
and immediately prior to the deemed exchange of interests pursuant to the CAM Exchange as provided
in Section 11.01(a)(ii):




     (i) the principal amount of each Global Revolving Facility Loan denominated
in a Foreign Currency and of each Ancillary Credit









 



159



Extension shall, automatically and with no further action required, be
converted into the Dollar Equivalent, determined using the Exchange Rates
calculated as of the CAM Exchange Date, of such amount and, subject to Section
11.01(a)(iv), on and after such date all amounts accruing and owed to any Lender or
any Ancillary Lender in respect of such Obligations shall accrue and be payable in
Dollars at the rates otherwise applicable hereunder;




     (ii) in the event that on the CAM Exchange Date any Unfunded Ancillary Credit
Extension (in respect of which cash collateral shall not have previously been
deposited pursuant to Section 2.22(e)) shall exist, or the applicable Foreign
Subsidiary Borrower shall have failed to reimburse a disbursement made by the
applicable Ancillary Lender, the applicable Ancillary Lender shall promptly pay
over to the Administrative Agent, in immediately available funds, an amount in
Dollars equal to such Unfunded Ancillary Credit Extension or unreimbursed
disbursement, together with interest thereon from the CAM Exchange Date to the date
on which such amount shall be paid to the Administrative Agent at the rate that
would be applicable at the time to an ABR Revolving Loan in a principal amount
equal to such Unfunded Ancillary Credit Extension or unreimbursed disbursement.
The Administrative Agent shall establish an account (the “Unfunded Ancillary Credit
Extension Account”) and shall deposit all amounts received pursuant to the previous
sentence and all amounts of cash collateral previously deposited pursuant to
Section 2.22(e) in the Unfunded Ancillary Credit Extension Account pending
application of such amounts pursuant to Section 11.02. The Administrative Agent
shall have sole dominion and control over the Unfunded Ancillary Credit Extension
Account; and




     (iii) there shall be a deemed buying and selling of interests (without regard
to Section 9.04) in the outstanding Global Revolving Facility Loans and Ancillary
Credit Extensions by the Global Revolving Facility Lenders (and each Global
Revolving Facility Lender shall promptly make payment therefor to the
Administrative Agent in the same manner as provided in Section 2.06 with respect to
Loans made by such Global Revolving Facility Lender (and Section 2.06 shall apply,
mutatis mutandis, to such payment obligations of such Global Revolving Facility
Lender) for distribution to the applicable Global Revolving Facility Lenders) such
that, after giving effect to such deemed buying and selling of interests, each
Global Revolving Facility Lender holds its ratable share of the Global Revolving
Facility Loans (based on the respective Global Revolving Facility Commitments of
the Global Revolving Facility Lenders immediately prior to the CAM Exchange Date)
of each outstanding Global Revolving Facility Loan and each Ancillary Credit
Extension.









 



160


ARTICLE XI




Collection Allocation Mechanism




     SECTION 11.01. Implementation of CAM. (a) On the CAM Exchange Date, (i) the Commitments
shall automatically and without further act be terminated as provided in Section 7.01, (ii) each
Global Revolving Facility Lender shall immediately be deemed to have acquired (and shall promptly
make payment therefor to the Applicable Agent in accordance with Section 2.04(c)) participations in
the Swingline Loans (other than any Swingline Foreign Currency Loan in respect of which Global
Revolving Facility Lenders have funded their purchase of participations pursuant to Section
2.04(c)) in an amount equal to such Global Revolving Facility Lender’s ratable share (based on the
respective Global Revolving Facility Commitments of the Global Revolving Facility Lenders
immediately prior to the CAM Exchange Date) of each Swingline Foreign Currency Loan outstanding on
such date, (iii) each U.S. Revolving Facility Lender shall immediately be deemed to have acquired
(and shall promptly make payment therefor to the Applicable Agent in accordance with Section
2.04(c)) participations in the Swingline Dollar Loans (other than any Swingline Dollar Loan in
respect of which the U.S. Revolving Facility Lenders have funded their purchase of participations
pursuant to Section 2.04(c)) in an amount equal to such U.S. Revolving Facility Lender’s U.S.
Revolving Facility Percentage of each Swingline Dollar Loan outstanding on such date, (iv)
simultaneously with the automatic conversions pursuant to clause (v) below, the Lenders shall
automatically and without further act (and without regard to the provisions of Section 9.04) be
deemed to have exchanged interests in the Loans (other than the Swingline Loans), Funded Ancillary
Credit Extensions and participations in Unfunded Ancillary Credit Extensions, Swingline Loans and
Letters of Credit, such that in lieu of the interest of each Lender in each Loan, Letter of Credit
and Ancillary Credit Extension in which it shall participate as of such date (including such
Lender’s interest in the Obligations of each Loan Party in respect of each such Loan, Letter of
Credit and Ancillary Credit Extension), such Lender shall hold an interest in every one of the
Loans (other than the Swingline Loans) and Funded Ancillary Credit Extensions and a participation
in every one of the Swingline Loans, Letters of Credit and Unfunded Ancillary Credit Extensions
(including the Obligations of each Loan Party in respect of each such Loan and Ancillary Credit
Extension and each Reserve Account established pursuant to Section 11.02 below), whether or not
such Lender shall previously have participated therein, equal to such Lender’s CAM Percentage
thereof and (v) simultaneously with the deemed exchange of interests pursuant to clause (iv) above,
the interests in the Loans and Funded Ancillary Credit Extensions to be received in such deemed
exchange shall, automatically and with no further action required, be converted into the Dollar
Equivalent, determined using the Exchange Rate calculated as of such date, of such amount and on
and after such date all amounts accruing and owed to the Lenders in respect of such Obligation
shall accrue and be payable in Dollars at the rate otherwise applicable hereunder. Each Lender and
each Loan Party hereby consents and agrees to the CAM Exchange, and each Lender agrees that the CAM
Exchange shall be binding upon its successors and assigns and any person that acquires a
participation in its interests in any Loan or Ancillary Credit Extension. Each Loan Party agrees
from time to time to execute and deliver to the Administrative Agent all such promissory notes and
other instruments









 



161

and documents as the Administrative Agent shall reasonably request to evidence and confirm the
respective interests of the Lenders after giving effect to the CAM Exchange, and each Lender agrees
to surrender any promissory notes originally received by it in connection with its Loans hereunder
to the Administrative Agent against delivery of any promissory notes evidencing its interests in
the Loans and Funded Ancillary Credit Extensions so executed and delivered; provided, however, that
the failure of any Loan Party to execute or deliver or of any Lender to accept any such promissory
note, instrument or document shall not affect the validity or effectiveness of the CAM Exchange.




     (b) As a result of the CAM Exchange, upon and after the CAM Exchange Date, each payment
received by the Applicable Agent or the Collateral Agent pursuant to any Loan Document in respect
of the Obligations of each Loan Party in respect of each Loan, Letter of Credit and Ancillary
Credit Extension, and each distribution made by the Collateral Agent pursuant to any Security
Document in respect of such Obligations, shall be distributed to the Lenders pro rata in accordance
with their respective CAM Percentages. Any direct payment received by a Lender upon or after the
CAM Exchange Date, including by way of set-off, in respect of an Obligation shall be paid over to
the Applicable Agent for distribution to the Lenders in accordance herewith.



     SECTION 11.02. Letters of Credit and Unfunded Ancillary Credit Extensions. (a) In the event
that on the CAM Exchange Date any Letter of Credit shall be outstanding and undrawn in whole or in
part, or any L/C Disbursement shall not have been reimbursed either by an Applicant Party or, in
the case of any L/C Disbursement made in Dollars, with the proceeds of a U.S. Revolving Facility
Borrowing or Swingline Dollar Borrowing, each U.S. Revolving Facility Lender shall promptly pay
over to the Administrative Agent, in immediately available funds, an amount in Dollars equal to
such U.S. Revolving Facility Lender’s U.S. Revolving Facility Percentage of such undrawn face
amount (or, in the case of any Foreign Currency Letter of Credit, the Dollar Equivalent of such
face amount) or (to the extent it has not already done so) such unreimbursed drawing, as
applicable, together with interest thereon from the CAM Exchange Date to the date on which such
amount shall be paid to the Administrative Agent at the rate that would be applicable at the time
to an ABR Revolving Loan in a principal amount equal to such undrawn face amount or unreimbursed
drawing, as applicable. The Administrative Agent shall establish a separate account (each, a
“Reserve Account”) or accounts for each Lender for the amounts received with respect to each such
Letter of Credit pursuant to the preceding sentence The Administrative Agent shall deposit in each
Lender’s Reserve Account such Lender’s CAM Percentage of (x) the amounts received from the
Revolving Credit Lenders as provided above and (y) the amounts on deposit in the Unfunded Ancillary
Credit Extension Account. The Administrative Agent shall have sole dominion and control over each
Reserve Account, and the amounts deposited in each Reserve Account shall be held in such Reserve
Account until withdrawn as provided in paragraph (b), (c), (d) or (e) below. The Administrative
Agent shall maintain records enabling it to determine the amounts paid over to it and deposited in
the Reserve Accounts in respect of each Letter of Credit and Unfunded Ancillary Credit Extension
and the amounts on deposit in respect of each Letter of Credit and Unfunded Ancillary Credit
Extension attributable to each Lender’s CAM









 



162



Percentage. The amounts held in each Lender’s Reserve Account shall be held as a reserve
against the Revolving L/C Exposures and payment obligations in respect of Unfunded Ancillary Credit
Extensions, shall be the property of such Lender, shall not constitute Loans to or give rise to any
claim of or against any Loan Party and shall not give rise to any obligation on the part of the
U.S. Borrower to pay interest to such Lender, it being agreed that the reimbursement obligations in
respect of (x) Letters of Credit shall arise only at such times as drawings are made thereunder, as
provided in Section 2.05, and (y) disbursements under any Ancillary Facility shall arise only at
such time as payments are required under such Ancillary Facility.



     (b) In the event that after the CAM Exchange Date any drawing shall be made in respect of a
Letter of Credit or any payment shall be made in respect of an Unfunded Ancillary Credit Extension,
the Administrative Agent shall, at the request of the applicable Issuing Bank or Ancillary Lender,
as applicable, withdraw from the Reserve Account of each Lender any amounts, up to the amount of
such Lender’s CAM Percentage of such drawing or payment, deposited in respect of such Letter of
Credit or Unfunded Ancillary Credit Extension and remaining on deposit and deliver such amounts, in
the case of a Letter of Credit, to such Issuing Bank in satisfaction of the reimbursement
obligations of the U.S. Revolving Facility Lenders under Section 2.05(d) (but not of the U.S.
Borrower under Section 2.05(e)) or, in the case of an Unfunded Ancillary Credit Extension, to the
applicable Ancillary Lender. In the event that any U.S. Revolving Facility Lender shall default on
its obligation to pay over any amount to the Administrative Agent as provided in this Section
11.02, the applicable Issuing Bank shall have a claim against such U.S. Revolving Facility Lender
to the same extent as if such Lender had defaulted on its obligations under Section 2.05(d), but
shall have no claim against any other Lender in respect of such defaulted amount, notwithstanding
the exchange of interests in the applicable Borrower’s reimbursement obligations pursuant to
Section 11.01. Each other Lender shall have a claim against such defaulting U.S. Revolving
Facility Lender for any damages sustained by it as a result of such default, including, in the
event that such Letter of Credit shall expire undrawn, its CAM Percentage of the defaulted amount.



     (c) In the event that after the CAM Exchange Date any Letter of Credit shall expire undrawn,
or an Unfunded Ancillary Credit Extension shall expire without requiring payment, the
Administrative Agent shall withdraw from the Reserve Account of each Lender the amount remaining on
deposit therein in respect of such Letter of Credit, or Unfunded Ancillary Credit Extension, as
applicable, and distribute such amount to such Lender.



     (d) With the prior written approval of the Administrative Agent (not to be unreasonably
withheld), any Lender may withdraw the amount held in its Reserve Account in respect of the undrawn
amount of any Letter of Credit or Unfunded Ancillary Credit Extension. Any Lender making such a
withdrawal shall be unconditionally obligated, in the event there shall subsequently be a drawing
under such Letter of Credit or payment in respect of an Unfunded Ancillary Credit Extension, to pay
over to the Administrative Agent, for the account of the Issuing Bank or Ancillary Lender, as
applicable, on demand, its CAM Percentage of such drawing or payment.









 



163


     (e) Pending the withdrawal by any Lender of any amounts from its Reserve Account as
contemplated by the above paragraphs, the Administrative Agent will, at the direction of such
Lender and subject to such rules as the Administrative Agent may prescribe for the avoidance of
inconvenience, invest such amounts in Permitted Investments. Each Lender that has not withdrawn
its amounts in its Reserve Account as provided in paragraph (d) above shall have the right, at
intervals reasonably specified by the Administrative Agent, to withdraw the earnings on investments
so made by the Administrative Agent with amounts in its Reserve Account and to retain such earnings
for its own account.



     SECTION 11.03. Existing Credit Agreement; Effectiveness of this Agreement. Until this
Agreement becomes effective in accordance with the terms hereof, the Existing Credit Agreement
shall remain in full force and effect and shall not be affected hereby. After the Restatement
Effective Date, all obligations of the Borrowers under the Existing Credit Agreement shall become
obligations of the Borrowers hereunder, secured by the Security Documents, and the provisions of
the Existing Credit Agreement shall be superseded by the provisions hereof.









 



 


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



	 	 	 	 	 
	 	TRW AUTOMOTIVE HOLDINGS CORP.,

 	 
	 	by  	              /s/ Joseph S. Cantie
 	 
	 	 	Name:  	Joseph S. Cantie 	 
	 	 	Title:  	Executive Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	TRW AUTOMOTIVE INTERMEDIATE HOLDINGS CORP.,

 	 
	 	by  	      /s/ Joseph S. Cantie
 	 
	 	 	Name:  	Joseph S. Cantie 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	TRW AUTOMOTIVE INC.,

 	 
	 	by  	     /s/ Joseph S. Cantie
 	 
	 	 	Name:  	Joseph S. Cantie 	 
	 	 	Title:  	Executive Vice President and Chief Financial Officer 	 
	 










 



 

	 	 	 	 	 
	 	LUCAS INDUSTRIES LIMITED,

 	 
	 	by  	     /s/ Graham Plumley
 	 
	 	 	Name:  	Graham Plumley 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	TRW SYSTEMS LIMITED,

 	 
	 	by  	     /s/ Graham Plumley
 	 
	 	 	Name:  	Graham Plumley 	 
	 	 	Title:  	Director 	 
	 











 



 

	 	 	 	 	 
	 	TRW BRAKING SYSTEMS POLSKA SP. Z O.O.,

 	 
	 	by  	     /s/ Ervin Appelfeld
 	 
	 	 	Name:  	Ervin Appelfeld 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	TRW POLSKA SP. Z O.O,

 	 
	 	By  	     /s/ Guenter Brenner
 	 
	 	 	Name:  	Guenter Brenner 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	TRW STEERING SYSTEMS POLAND SP. Z O.O,

 	 
	 	By  	     /s/ Graham Plumley
 	 
	 	 	Name:  	Graham Plumley 	 
	 	 	Title:  	Director 	 
	 











 



 

	 	 	 	 	 
	 	TRW AUTOMOTIVE GMBH,

 	 
	 	By  	     /s/ Reinhard Lechner
 	 
	 	 	Name:  	Reinhard Lechner 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	TRW DEUTSCHLAND HOLDING GMBH,

 	 
	 	by  	     /s/ Reinhard Lechner
 	 
	 	 	Name:  	Reinhard Lechner 	 
	 	 	Title:  	Director 	 
	 











 



 

	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A. (f/k/a JPMORGAN

CHASE BANK), Individually and as

Administrative Agent, Collateral Agent and

Issuing Bank

 	 
	 	by  	     /s/ Marian N. Schulman
 	 
	 	 	Name:  	Marian N. Schulman 	 
	 	 	Title:  	Managing Director 	 
	 











 



 

	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as Syndication Agent,

 	 
	 	by  	     /s/ Chas McDonell
 	 
	 	 	Name:  	Chas McDonell 	 
	 	 	Title:  	Senior Vice President