exv10w9






Exhibit 10.9




CREDIT AGREEMENT




Dated as of August 14, 2009




          COOPER INDUSTRIES, LTD., a Bermuda company (the “Company”), COOPER US INC., a Delaware
corporation (“Cooper US”), the Subsidiary Guarantors named herein, the banks, financial
institutions and other institutional lenders (the “Initial Lenders”) and issuers of letters
of credit (“Initial Issuing Banks”) listed on Schedule I hereto, PNC BANK, NATIONAL
ASSOCIATION, as syndication agent, and CITIBANK, N.A. (“Citibank”), as administrative agent
(the “Agent”) for the Lenders (as hereinafter defined), agree as follows:




ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




          SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):





     “Advance” means an advance by a Lender to any Borrower as part of a Borrowing
and refers to a Base Rate Advance or a Eurodollar Rate Advance (each of which shall be a
“Type” of Advance).




     “Affiliate” means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such Person or is a
director or officer of such Person. For purposes of this definition, the term “control”
(including the terms “controlling”, “controlled by” and “under common control with”) of a
Person means the possession, direct or indirect, of the power to vote 5% or more of the
Voting Stock of such Person or to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock, by contract or
otherwise.




     “Agent’s Account” means the account of the Agent maintained by the Agent at
Citibank at its office at Two Penns Way, New Castle, Delaware 19720, Account No. 36852248,
Attention: Bank Loan Syndications or such other account of the Agent as is designated in
writing from time to time by the Agent to the Company and the Lenders for such purpose.




     “Agreement Value” means, for each Hedge Agreement, on any date of
determination, an amount determined by the Agent equal to the amount, if any, that would be
payable by any Loan Party or any of its Subsidiaries to its counterparty to such Hedge
Agreement in accordance with its terms as if (i) such Hedge Agreement was being terminated
early on such date of determination, (ii) such Loan Party or Subsidiary was the sole
“Affected Party” and (iii) the Agent was the sole party determining such payment amount.




     “Applicable Lending Office” means, with respect to each Lender, such Lender’s
Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurodollar
Lending Office in the case of a Eurodollar Rate Advance.




     “Applicable Margin” means as of any date (a) for Eurodollar Rate Advances, a
percentage per annum determined by reference to the Public Debt Rating in effect on such
date, but not less than the floor, as set forth below:



 









 





	 	 	 	 	 	 	 	 	 
	 	 	Applicable Margin for	 	 
	Public Debt Rating	 	Eurodollar Rate	 	 
	S&P/Moody’s	 	Advances	 	Floor
	Level 1
	 	 	 	 	 	 	 	 
	A+ / A1 or above
	 	60% of Index	 	 	0.750	%
	 
	 	 	 	 	 	 	 	 
	Level 2


A / A2
	 	75% of Index	 	 	1.250	%
	 
	 	 	 	 	 	 	 	 
	Level 3
	 	 	 	 	 	 	 	 
	A- / A3
	 	100% of Index	 	 	1.500	%
	 
	 	 	 	 	 	 	 	 
	Level 4
	 	 	 	 	 	 	 	 
	BBB+ / Baa1
	 	125% of Index	 	 	2.000	%
	 
	 	 	 	 	 	 	 	 
	Level 5
	 	 	 	 	 	 	 	 
	Lower than Level 4
	 	150% of Index	 	 	2.500	%








and (b) for Base Rate Advances, a percentage per annum that is equal to the rate determined
in accordance with clause (a) above minus 1.00% (but not less than 1.000%). If the Index is
unavailable (a) each Eurodollar Rate Advance will convert to a Base Rate Advance at the end
of the Interest Period then in effect for such Eurodollar Rate Advance and (b) the Company
and the Lenders shall negotiate in good faith (for a period of up to thirty days after the
Index becomes unavailable (such thirty-day period, the “Negotiation Period”)) to
agree on an alternative method for establishing the Applicable Margin. The Applicable
Margin at any determination date thereof which falls during the Negotiation Period shall be
based upon the then most recently available quote of the Index. If no such alternative
method is agreed upon during the Negotiation Period, the Applicable Margin at any
determination date subsequent to the end of the Negotiation Period shall be a rate per annum
equal to the higher of (i) the Applicable Margin in effect immediately prior to the
Negotiation Period and (ii) 2.50%. If the Index again becomes available, then the
Applicable Margin shall be determined on the basis set forth above.




     “Applicable Percentage” means, as of any date a percentage per annum determined
by reference to the Public Debt Rating in effect on such date as set forth below:



	 	 	 	 	 
	Public Debt Rating	 	Applicable
	S&P/Moody’s	 	Percentage
	Level 1
	 	 	 	 
	A+ / A1 or above
	 	 	0.200	%
	 
	 	 	 	 
	Level 2
	 	 	 	 
	A / A2
	 	 	0.225	%
	 
	 	 	 	 
	Level 3
	 	 	 	 
	A- / A3
	 	 	0.300	%
	 
	 	 	 	 
	Level 4
	 	 	 	 
	BBB+ / Baa1
	 	 	0.375	%
	 
	 	 	 	 
	Level 5
	 	 	 	 
	Lower than Level 4
	 	 	0.500	%








     “Assignment and Acceptance” means an assignment and acceptance entered into by
a Lender and an Eligible Assignee, and accepted by the Agent, in substantially the form of
Exhibit C hereto.




     “Assuming Lender” has the meaning specified in Section 2.18(d).




     “Assumption Agreement” has the meaning specified in Section 2.18(d)(ii).



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     “Available Amount” of any Letter of Credit means, at any time, the maximum
amount available to be drawn under such Letter of Credit at such time (assuming compliance
at such time with all conditions to drawing).




     “Bankruptcy Law” means any proceeding of the type referred to in
Section 6.01(e) or Title 11, U.S. Code, or any similar foreign, federal or state law for the
relief of debtors.




     “Base Rate” means a fluctuating interest rate per annum in effect from time to
time, which rate per annum shall at all times be equal to the highest of:




     (a) the rate of interest announced publicly by Citibank in New York, New York,
from time to time, as Citibank’s base rate;




     (b) 1/2 of one percent per annum above the Federal Funds Rate; and




     (c) the British Bankers Association Interest Settlement Rate applicable to
Dollars for a period of one month (“One Month LIBOR”) plus 1.00% (for the avoidance
of doubt, the One Month LIBOR for any day shall be based on the rate appearing on
Reuters LIBOR01 Page (or other commercially available source providing such
quotations as designated by the Agent from time to time) at approximately 11:00 a.m.
London time on such day).




     “Base Rate Advance” means an Advance that bears interest as provided in
Section 2.07(a)(i).




     “Borrowers” means, collectively, the Company and Cooper US.




     “Borrowing” means a borrowing consisting of simultaneous Advances of the same
Type made by each of the Lenders.




     “Business Day” means a day of the year on which banks are not required or
authorized by law to close in New York City and, if the applicable Business Day relates to
any Eurodollar Rate Advances, Business Day also includes a day on which dealings are carried
on in the London interbank market.




     “Commitment” means a Revolving Credit Commitment or a Letter of Credit
Commitment.




     “Commitment Date” has the meaning specified in Section 2.18(b).




     “Commitment Increase” has the meaning specified in Section 2.18(a).




     “Consenting Lender” has the meaning specified in Section 2.19(b).




     “Consolidated” refers to the consolidation of accounts in accordance with GAAP.




     “Consolidated Subsidiary” means any Subsidiary (whether now existing or
hereafter organized or acquired) which was at December 31, 2008, or which at any time
thereafter is, consolidated with the Company in any consolidated financial statement
furnished to any Lender.




     “Convert”, “Conversion” and “Converted” each refers to a
conversion of Advances of one Type into Advances of the other Type pursuant to Section 2.08
or 2.09.




     “Debt” means at any time capitalized lease obligations and debt created,
issued, guaranteed (whether directly, or indirectly by way of agreement, contingent or
otherwise, to purchase, to provide funds for payment, to supply funds to or otherwise invest
in the debtor, or otherwise to assure the creditor against loss), incurred or assumed for
money borrowed or for the deferred (for 91 days or more) purchase price of property or
services purchased, excluding, however, accounts payable (other than for borrowed money or



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for such deferred purchase price) and accrued expenses incurred in the ordinary course
of business, obligations created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even though the rights
and remedies of the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), and obligations, contingent or otherwise,
of such Person in respect of acceptances, letters of credit or similar extensions of credit.




     “Default” means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or both.




     “Default Excess” means, with respect to any Defaulting Lender, the excess, if
any, of such Defaulting Lender’s ratable portion of the aggregate outstanding principal
amount of the Advances of all Lenders (calculated as if all Defaulting Lenders had funded
all of their respective Defaulted Advances) over the aggregate outstanding principal amount
of all Advances actually funded by such Defaulting Lender.




     “Default Period” means, with respect to any Defaulting Lender, the period
commencing on the date of the applicable Defaulted Advance and ending on the earlier of the
following dates: (i) the date on which (a) the Default Excess with respect to such
Defaulting Lender has been reduced to zero (whether by the funding of any Defaulted Advances
by such Defaulting Lender or by the non-pro-rata application of any prepayment pursuant to
Section 2.20) and (b) such Defaulting Lender shall have delivered to the Company and the
Agent a written reaffirmation of its intention to honor its obligations hereunder with
respect to its Commitment; and (ii) the date on which the Company, the Agent and the
Required Lenders waive in writing all defaults relating to the failure of such Defaulting
Lender to fund.




     “Defaulted Advance” means any Advance that a Defaulting Lender has failed to
make.




     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of
the Advances required to be funded by it hereunder within three Business Days of the date
required to be funded by it hereunder, and such failure is continuing, (b) has otherwise
failed to pay over to the Agent, any Issuing Bank or any other Lender any other amount
required to be paid by it hereunder within three Business Days of the date when due, and
such failure is continuing, unless the subject of a good faith dispute, (c) has notified the
Company or the Agent in writing, or has otherwise indicated through a written statement or
public announcement, that it does not intend to fund Advances as required hereunder or that
it does not intend to comply with its funding obligations generally under agreements in
which it commits to extend credit or has failed to confirm in writing to the Company and the
Agent such Lender’s intention and ability to fund Advances as required hereunder within five
(5) Business Days after receipt of a written request for such confirmation from the Company
or the Agent; provided that any such Lender shall cease to be a Defaulting Lender
under this clause (c) upon receipt of such confirmation by the Company or the Agent, or (d)
is, or any parent of which is, subject to a bankruptcy, insolvency or similar proceeding or
to the appointment of the Federal Deposit Insurance Corporation or other receiver,
custodian, conservator, trustee or similar official with respect to such Lender’s business
or properties; provided that, for the avoidance of doubt, a Lender shall not be a
Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in
or control of such Lender or a parent company thereof by a governmental authority or an
instrumentality thereof.




     “Dollars” and the “$” sign each means lawful currency of the United
States of America.




     “Domestic Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or
in the Assumption Agreement or the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender may from time to time specify to
the Company and the Agent.




     “EBITDA” means, for any period, net income (or net loss) plus (a)
without duplication and to the extent deducted in determining such net income (or loss), the
sum of (i) interest expense, (ii) income tax



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expense, (iii) depreciation expense, (iv) amortization expense and (v) any
extraordinary or non-recurring non-cash charges, including non-cash restructuring charges,
provided that cash expenditures in respect of charges referred to in this clause (v)
shall be deducted in determining EBITDA for the period during which such expenditures are
made, and minus (b) without duplication and to the extent included in determining
such net income (or loss), any extraordinary or non-recurring or non-cash gains, in each
case determined in accordance with GAAP for such period.




     “Effective Date” has the meaning specified in Section 3.01.




     “Eligible Assignee” means (i) a Lender; (ii) an Affiliate of a Lender; and
(iii) any other Person approved by the Agent, each Issuing Bank and, unless an Event of
Default has occurred and is continuing at the time any assignment is effected in accordance
with Section 9.07 or Assumption Agreement is entered into in accordance with Section
2.18(d), the Company, such approval not to be unreasonably withheld or delayed;
provided, however, that neither the Company nor an Affiliate of the Company
shall qualify as an Eligible Assignee.




     “Environmental Action” means any action, suit, demand, demand letter, claim,
notice of non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in any way to any
Environmental Law, Environmental Permit or Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment, including, without
limitation, (a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.




     “Environmental Law” means any federal, state, local or foreign statute, law,
ordinance, rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation, those relating to the
use, handling, transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.




     “Environmental Permit” means any permit, approval, identification number,
license or other authorization required under any Environmental Law.




     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.




     “ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a
member of Cooper US’s controlled group, or under common control with Cooper US, within the
meaning of Section 414 of the Internal Revenue Code.




     “ERISA Event” means (a) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC; (b) the application for
a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of
any Plan of a notice of intent to terminate such Plan pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (d) the withdrawal by Cooper US or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial employer, as
defined in Section 4001(a)(2) of ERISA; (e) the conditions for the imposition of a lien
under Section 303(k) of ERISA shall have been met with respect to any Plan; (f) a
determination that any Plan is in “at risk” status (within the meaning of Section 303 of
ERISA); or (g) the institution by the PBGC of proceedings to terminate a Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042
of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to
administer, a Plan.



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     “Eurocurrency Liabilities” has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time
to time.




     “Eurodollar Lending Office” means, with respect to any Lender, the office of
such Lender specified as its “Eurodollar Lending Office” opposite its name on Schedule I
hereto or in the Assumption Agreement or the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending Office), or such
other office of such Lender as such Lender may from time to time specify to the Company and
the Agent.




     “Eurodollar Rate” means, for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing, an interest rate per annum equal to the rate
per annum (rounded upward to the nearest whole multiple of 1/100 of 1% per annum) appearing
on Reuters LIBOR01 Page (or any successor page) as the London interbank offered rate for
deposits in Dollars at approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period or, if for
any reason such rate is not available, the average (rounded upward to the nearest whole
multiple of 1/100 of 1% per annum, if such average is not such a multiple) of the rate per
annum at which deposits in Dollars is offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London interbank market at
11:00 A.M. (London time) two Business Days before the first day of such Interest Period in
an amount substantially equal to such Reference Bank’s Eurodollar Rate Advance comprising
part of such Borrowing to be outstanding during such Interest Period and for a period equal
to such Interest Period. If the Reuters LIBOR01 Page (or any successor page) is
unavailable, the Eurodollar Rate for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.




     “Eurodollar Rate Advance” means an Advance that bears interest as provided in
Section 2.07(a)(ii).




     “Eurodollar Rate Reserve Percentage” for any Interest Period for any Eurodollar
Rate Advance made by any Lender means the reserve percentage applicable two Business Days
before the first day of such Interest Period under regulations issued from time to time by
the Board of Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, any emergency, supplemental or
other marginal reserve requirement) for such Lender with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to any other category
of liabilities that includes deposits by reference to which the interest rate on Eurodollar
Rate Advances is determined) having a term equal to such Interest Period.




     “Events of Default” has the meaning specified in Section 6.01.




     “Extension Date” has the meaning specified in Section 2.19(b).




     “Federal Funds Rate” means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not a Business Day, for
the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate
is not so published for any day that is a Business Day, the average of the quotations for
such day on such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.




     “GAAP” has the meaning specified in Section 1.03.




     “Guaranteed Obligations” has the meaning specified in Section 7.01.



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     “Hazardous Materials” means (a) petroleum and petroleum products, byproducts or
breakdown products, radioactive materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.




     “Hedge Agreements” means interest rate swap, cap or collar agreements, interest
rate future or option contracts, currency swap agreements, currency future or option
contracts and other similar agreements.




     “Increase Date” has the meaning specified in Section 2.18(a).




     “Increasing Lender” has the meaning specified in Section 2.18(b).




     “Index” means the average of the Markit CDX.NA.IG Series 12 or any successor
series (5 Year Period) for the preceding 15 days or, if fewer, the number of days for which
the then current series is then in effect, determined (i) if used in respect of determining
the Applicable Margin for Eurodollar Rate Advances, on the date that is two Business Days
before the first day of the applicable Interest Period, and (ii) if used in respect of
determining the Applicable Margin for Base Rate Advances, on the date of borrowing of such
Advances and thereafter quarterly on the last day of each March, June, September and
December.




     “Information” has the meaning specified in Section 9.08.




     “Information Memorandum” means the information memorandum dated July 7, 2009,
as modified and supplemented prior to the date hereof, used by the Agent in connection with
the syndication of the Commitments.




     “Initial Issuing Bank” has the meaning specified in the first paragraph hereof.




     “Interest Period” means, for each Eurodollar Rate Advance comprising part of
the same Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the
date of the Conversion of any Base Rate Advance into such Eurodollar Rate Advance and ending
on the last day of the period selected by the Borrower requesting such Borrowing pursuant to
the provisions below and, thereafter, each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending on the last day of the period selected
by such Borrower pursuant to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months, as the applicable Borrower may, upon notice
received by the Agent not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the first day of such Interest Period, select; provided,
however, that:




     (a) the Borrowers may not select any Interest Period that ends after the latest
Termination Date;




     (b) Interest Periods commencing on the same date for Eurodollar Rate Advances
comprising part of the same Borrowing shall be of the same duration;




     (c) whenever the last day of any Interest Period would otherwise occur on a day
other than a Business Day, the last day of such Interest Period shall be extended to
occur on the next succeeding Business Day, provided, however, that,
if such extension would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and




     (d) whenever the first day of any Interest Period occurs on a day of an initial
calendar month for which there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number of months equal to the
number of months in



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such Interest Period, such Interest Period shall end on the last Business Day
of such succeeding calendar month.




     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.




     “Irish Reorganization” means the reorganization and reincorporation of the
Company as Cooper Industries plc, a company incorporated under the laws of Ireland, to be
consummated in accordance with the terms set forth in the proxy statement filed by the
Company with the Securities and Exchange Commission on July 16, 2009.




     “Issuance” with respect to any Letter of Credit means the issuance, amendment,
renewal or extension of such Letter of Credit.




     “Issuing Bank” means an Initial Issuing Bank or any Eligible Assignee to which
a portion of the Letter of Credit Commitment hereunder has been assigned pursuant to Section
9.07 or any other Lender appointed by the Company so long as such Eligible Assignee or
Lender expressly agrees to perform in accordance with their terms all of the obligations
that by the terms of this Agreement are required to be performed by it as an Issuing Bank
and notifies the Agent of its Letter of Credit Commitment and its Applicable Lending Office
(which information shall be recorded by the Agent in the Register), for so long as such
Initial Issuing Bank, Eligible Assignee or Lender, as the case may be, shall have a Letter
of Credit Commitment.




     “L/C Cash Collateral Account” means an interest bearing cash collateral account
to be established and maintained by the Agent, over which the Agent shall have sole dominion
and control, upon terms as may be satisfactory to the Agent and the Company.




     “L/C Related Documents” has the meaning specified in Section 2.06(b)(i).




     “Lenders” means each Initial Lender, each Issuing Bank, each Assuming Lender
that shall become a party hereto pursuant to Section 2.18 and each Person that shall become
a party hereto pursuant to Section 9.07.




     “Letter of Credit” has the meaning specified in Section 2.01(b).




     “Letter of Credit Agreement” has the meaning specified in Section 2.03(a).




     “Letter of Credit Commitment” means, with respect to each Issuing Bank, the
obligation of such Issuing Bank to issue Letters of Credit for the account of the Borrowers
and their specified Subsidiaries in (a) the Dollar amount set forth opposite the Issuing
Bank’s name on Schedule I hereto under the caption “Letter of Credit Commitment” or (b) if
such Issuing Bank has entered into one or more Assignment and Acceptances or has otherwise
become an Issuing Bank after the date hereof, the Dollar amount set forth for such Issuing
Bank in the Register maintained by the Agent pursuant to Section 9.07(d) as such Issuing
Bank’s “Letter of Credit Commitment”, in each case as such amount may be reduced prior to
such time pursuant to Section 2.05.




     “Letter of Credit Facility” means, at any time, an amount equal to the least of
(a) the aggregate amount of the Issuing Banks’ Letter of Credit Commitments at such time,
(b) $25,000,000 and (c) the aggregate amount of the Revolving Credit Commitments, as such
amount may be reduced at or prior to such time pursuant to Section 2.05.




     “Lien” means any lien, security interest or other charge or encumbrance of any
kind, or any other type of preferential arrangement, including, without limitation, the lien
or retained security title of a conditional vendor and any easement, right of way or other
encumbrance on title to real property.



8









 






     “Loan Party” means the Company and each Subsidiary Guarantor.




     “Material Adverse Change” means any material adverse change in the business,
assets, financial condition or operations of the Company and its Subsidiaries taken as a
whole.




     “Material Adverse Effect” means a material adverse effect on (a) the business,
assets, financial condition or operations of the Company and its Subsidiaries taken as a
whole, (b) the rights and remedies of the Agent or any Lender under this Agreement or any
Note or (c) the ability of the Loan Parties, taken as a whole, to perform their obligations
under this Agreement or any Note.




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




     “Multiemployer Plan” means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which Cooper US or any ERISA Affiliate 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.




     “Multiple Employer Plan” means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of Cooper US or any ERISA
Affiliate and at least one Person other than Cooper US and the ERISA Affiliates or (b) was
so maintained and in respect of which Cooper US or any ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan were to be terminated.




     “Non-Consenting Lender” has the meaning specified in Section 2.19(b).




     “Note” means a promissory note of any Borrower payable to the order of any
Lender, delivered pursuant to a request made under Section 2.16 in substantially the form of
Exhibit A hereto, evidencing the aggregate indebtedness of such Borrower to such Lender
resulting from the Advances made by such Lender to such Borrower.




     “Notice of Issuance” has the meaning specified in Section 2.03(a).




     “Notice of Borrowing” has the meaning specified in Section 2.02(a).




     “Operating Earnings” means consolidated earnings of the Company and the
Consolidated Subsidiaries before income taxes, interest expense and general corporate
expenses, determined in accordance with GAAP, except that unrealized appreciation in the
value of investment in, and undistributed earnings of, Subsidiaries not consolidated will
not be included.




     “Patriot Act” means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56,
signed into law October 26, 2001.




     “PBGC” means the Pension Benefit Guaranty Corporation (or any successor).




     “Permitted Liens” means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens
for taxes, assessments and governmental charges or levies to the extent not required to be
paid under Section 5.01(b) hereof; (b) Liens imposed by law, such as materialmen’s,
mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar Liens arising in
the ordinary course of business securing obligations that are not overdue or are being
contested in good faith by appropriate proceedings and for which appropriate reserves are
maintained; (c) pledges or deposits to secure obligations under workers’ compensation laws
or similar legislation or to secure public or statutory obligations; and (d) easements,
rights of way and other encumbrances on title to real property that do not render title to
the property encumbered thereby unmarketable or materially adversely affect the use of such
property for its present purposes.



9









 






     “Person” means an individual, partnership, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint venture, limited
liability company or other entity, or a government or any political subdivision or agency
thereof.




     “Plan” means a Single Employer Plan or a Multiple Employer Plan.




     “Post-Petition Interest” has the meaning specified in Section 7.05.




     “Public Debt Rating” means, as of any date, the highest rating most recently
announced by either S&P or Moody’s, as the case may be, of (i) any senior unsecured
long-term debt for borrowed money of any Consolidated Subsidiary which is fully guaranteed
by the Company or (ii) the long-term corporate credit of the Company. For purposes of the
foregoing, (a) if only one of S&P and Moody’s shall have in effect a Public Debt Rating, the
Applicable Margin and the Applicable Percentage shall be determined by reference to the
available rating; (b) if neither S&P nor Moody’s shall have in effect a Public Debt Rating,
the Applicable Margin, and the Applicable Percentage will be set in accordance with Level 5
under the definition of “Applicable Margin” or “Applicable Percentage”, as
the case may be; (c) if the ratings established by S&P and Moody’s shall fall within
different levels, the Applicable Margin and the Applicable Percentage shall be based upon
the higher rating unless the such ratings differ by two or more levels, in which case the
applicable level will be deemed to be one level above the lower of such levels; (d) if any
rating established by S&P or Moody’s shall be changed, such change shall be effective as of
the date on which such change is first announced publicly by the rating agency making such
change; and (e) if S&P or Moody’s shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or Moody’s, as the case may be,
shall refer to the then equivalent rating by S&P or Moody’s, as the case may be.




     “Ratable Share” of any amount means, with respect to any Lender at any time,
the product of such amount times a fraction the numerator of which is the amount of
such Lender’s Revolving Credit Commitment at such time (or, if the Revolving Credit
Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such Lender’s
Revolving Credit Commitment as in effect immediately prior to such termination) and the
denominator of which is the aggregate amount of all Revolving Credit Commitments at such
time (or, if the Revolving Credit Commitments shall have been terminated pursuant to
Section 2.05 or 6.01, the aggregate amount of all Revolving Credit Commitments as in effect
immediately prior to such termination).




     “Reference Banks” means Citibank and PNC Bank, National Association.




     “Register” has the meaning specified in Section 9.07(d).




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




     “Required Lenders” means at any time Lenders owed at least a majority in
interest of the then aggregate unpaid principal amount of the Advances owing to Lenders, or,
if no such principal amount is then outstanding, Lenders having at least a majority in
interest of the Revolving Credit Commitments; provided that the Commitment of, and
the portion of the Advances held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Required Lenders.




     “Revolving Credit Commitment” means as to any Lender (a) the Dollar amount set
forth opposite such Lender’s name on Schedule I hereto as such Lender’s “Revolving Credit
Commitment”, (b) if such Lender has become a Lender hereunder pursuant to an Assumption
Agreement, the Dollar amount set forth in such Assumption Agreement or (c) if such Lender
has entered into an Assignment and Acceptance, the Dollar amount set forth for such Lender
in the Register maintained by the Agent pursuant to Section 9.07(d), as such amount may be
reduced pursuant to Section 2.05 or increased pursuant to Section 2.18.



10









 






     “S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.




     “Single Employer Plan” means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of Cooper US or any ERISA
Affiliate and no Person other than Cooper US and the ERISA Affiliates or (b) was so
maintained and in respect of which Cooper US or any ERISA Affiliate could have liability
under Section 4069 of ERISA in the event such plan were to be terminated.




     “Significant Subsidiary” means each Subsidiary the consolidated revenues of
which equal 5% or more of the Consolidated revenues of the Company and its Subsidiaries for
the most recent period of four consecutive fiscal quarters.




     “Subordinated Obligations” has the meaning specified in Section 7.05.




     “Subsidiary” of any Person means any corporation, partnership, joint venture,
limited liability company, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect a majority of the
Board of Directors of such corporation (irrespective of whether at the time capital stock of
any other class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial interest in such trust
or estate is at the time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such Person’s other
Subsidiaries.




     “Subsidiary Guarantor” means each of Cooper US Inc., Cooper B-Line, Inc.,
Cooper Bussmann, LLC, Cooper Crouse-Hinds, LLC, Cooper Lighting, LLC, Cooper Power Systems,
LLC, Cooper Industries, LLC and Cooper Wiring Devices, Inc.




     “Termination Date” means the earlier of (a) August 14, 2012, subject to the
extension thereof pursuant to Section 2.19 and (b) the date of termination in whole of the
Commitments pursuant to Section 2.05 or 6.01; provided, however, that the
Termination Date of any Lender that is a Non-Consenting Lender to any requested extension
pursuant to Section 2.19 shall be the Termination Date in effect immediately prior to the
applicable Extension Date for all purposes of this Agreement.




     “Unissued Letter of Credit Commitment” means, with respect to any Issuing Bank,
the obligation of such Issuing Bank to issue Letters of Credit for the account of any
Borrower or its specified Subsidiaries in an amount equal to the excess of (a) the amount of
its Letter of Credit Commitment over (b) the aggregate Available Amount of all Letters of
Credit issued by such Issuing Bank.




     “Unused Commitment” means, with respect to each Lender at any time, (a) such
Lender’s Revolving Credit Commitment at such time minus (b) the sum of (i) the
aggregate principal amount of all Advances made by such Lender (in its capacity as a Lender)
and outstanding at such time, plus (ii) such Lender’s Ratable Share of (A) the
aggregate Available Amounts of all the Letters of Credit outstanding at such time and (B)
the aggregate principal amount of all Advances made by each Issuing Bank pursuant to
Section 2.03(c) that have not been ratably funded by such Lender and outstanding at such
time.




     “Voting Stock” means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by the happening
of such a contingency.




     SECTION 1.02. Computation of Time Periods. In this Agreement in the computation of
periods of time from a specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding”.



11









 





          SECTION 1.03. Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting principles consistent with
those applied in the preparation of the financial statements referred to in Section 4.01(e)
(“GAAP”).




ARTICLE II




AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT




          SECTION 2.01. The Advances and Letters of Credit. (a) The Advances. Each
Lender severally agrees, on the terms and conditions hereinafter set forth, to make Advances to any
Borrower from time to time on any Business Day during the period from the Effective Date until the
Termination Date applicable to such Lender in an amount not to exceed such Lender’s Unused
Commitment. Each Borrowing shall be in an amount not less than $5,000,000 or $1,000,000 in excess
thereof and shall consist of Advances of the same Type made on the same day by the Lenders ratably
according to their respective Revolving Credit Commitments. Within the limits of each Lender’s
Revolving Credit Commitment, any Borrower may borrow under this Section 2.01(a), prepay pursuant to
Section 2.10 and reborrow under this Section 2.01(a).




          (b) Letters of Credit. Each Issuing Bank agrees, on the terms and conditions
hereinafter set forth, in reliance upon the agreements of the other Lenders set forth in this
Agreement, to issue letters of credit (each, a “Letter of Credit”) denominated in Dollars
for the account of any Borrower and its specified Subsidiaries from time to time on any Business
Day during the period from the Effective Date until 30 days before the Termination Date applicable
to such Issuing Bank in an aggregate Available Amount (i) for all Letters of Credit issued by each
Issuing Bank not to exceed at any time the lesser of (x) the Letter of Credit Facility at such time
and (y) such Issuing Bank’s Letter of Credit Commitment at such time and (ii) for each such Letter
of Credit not to exceed an amount equal to the Unused Commitments of the Lenders at such time. No
Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or
the beneficiary to require renewal) later than 10 Business Days before the Termination Date,
provided that no Letter of Credit may expire after the Termination Date of any
Non-Consenting Lender if, after giving effect to such issuance, the aggregate Revolving Credit
Commitments of the Consenting Lenders (including any replacement Lenders) for the period following
such Termination Date would be less than the Available Amount of the Letters of Credit expiring
after such Termination Date. Within the limits referred to above, the Borrowers may from time to
time request the issuance of Letters of Credit under this Section 2.01(b). Each letter of credit
listed on Schedule 2.01(b) shall be deemed to constitute a Letter of Credit issued hereunder, and
each Lender that is an issuer of such a Letter of Credit shall, for purposes of Section 2.03, be
deemed to be an Issuing Bank for each such letter of credit, provided than any renewal or
replacement of any such letter of credit shall be issued by an Issuing Bank pursuant to the terms
of this Agreement.




          SECTION 2.02. Making the Advances. (a) Except as otherwise provided in Section
2.03(c), each Borrowing shall be made on notice, given not later than (x) 11:00 A.M. (New York City
time) on the third Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances or (y) 11:00 A.M. (New York City time) on the date
of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances, by any
Borrower to the Agent, which shall give to each Lender prompt notice thereof by telecopier. Each
such notice of a Borrowing (a “Notice of Borrowing”) shall be by telephone, confirmed
immediately in writing, or telecopier in substantially the form of Exhibit B hereto, specifying
therein the requested (i) date of such Borrowing, (ii) Type of Advances comprising such Borrowing,
(iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing consisting of
Eurodollar Rate Advances, initial Interest Period for each such Advance. Each Lender shall, before
1:00 P.M. (New York City time) on the date of such Borrowing, make available for the account of its
Applicable Lending Office to the Agent at the Agent’s Account, in same day funds, such Lender’s
ratable portion of such Borrowing. After the Agent’s receipt of such funds and upon fulfillment of
the applicable conditions set forth in Section 3.02, the Agent will make such funds available to
the Borrower requesting the Borrowing at the Agent’s address referred to in Section 9.02.




          (b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrowers may
not select Eurodollar Rate Advances for any Borrowing if the aggregate amount of such Borrowing is
less than
$5,000,000 or if the obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.08 or 2.12 and (ii) the Eurodollar Rate Advances may not be
outstanding as part of more than six separate Borrowings.




12









 





          (c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower requesting the
Borrowing. In the case of any Borrowing that the related Notice of Borrowing specifies is to be
comprised of Eurodollar Rate Advances, such Borrower shall indemnify each Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in
Section 3.02, including, without limitation, any loss (excluding loss of anticipated profits), cost
or expense incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Advance, as a result of such failure, is not made on such date.




          (d) Unless the Agent shall have received notice from a Lender prior to the time of any
Borrowing that such Lender will not make available to the Agent such Lender’s ratable portion of
such Borrowing, the Agent may assume that such Lender has made such portion available to the Agent
on the date of such Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the Borrower requesting the Borrowing on
such date a corresponding amount. If and to the extent that such Lender shall not have so made
such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay
to the Agent forthwith on demand such corresponding amount together with interest thereon, for each
day from the date such amount is made available to such Borrower until the date such amount is
repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time
to the Advances comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds
Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid
shall constitute such Lender’s Advance as part of such Borrowing for purposes of this Agreement.




          (e) The failure of any Lender to make the Advance to be made by it as part of any Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the
date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to
make the Advance to be made by such other Lender on the date of any Borrowing.




          SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit.
(a) Request for Issuance. (i) Each Letter of Credit shall be issued upon notice, given
not later than 11:00 A.M. (New York City time) on the fifth Business Day prior to the date of the
proposed Issuance of such Letter of Credit (or on such shorter notice as the applicable Issuing
Bank may agree), by any Borrower to any Issuing Bank, and such Issuing Bank shall give the Agent,
prompt notice thereof. Each such notice by a Borrower of Issuance of a Letter of Credit (a
“Notice of Issuance”) shall be by telecopier or telephone, confirmed immediately in
writing, specifying therein the requested (A) date of such Issuance (which shall be a Business
Day), (B) Available Amount of such Letter of Credit, (C) expiration date of such Letter of Credit,
(D) name and address of the beneficiary of such Letter of Credit and (E) form of such Letter of
Credit, such Letter of Credit shall be issued pursuant to such application and agreement for letter
of credit as such Issuing Bank and the applicable Borrower shall agree for use in connection with
such requested Letter of Credit (a “Letter of Credit Agreement”). If the requested form of
such Letter of Credit is acceptable to such Issuing Bank in its reasonable discretion (it being
understood that any such form shall have only explicit documentary conditions to draw and shall not
include discretionary conditions), such Issuing Bank will, unless such Issuing Bank has
received written notice from any Lender, the Agent or the Company, at least one Business Day prior
to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Section 3.02 shall not be satisfied, then, subject to the terms
and conditions hereof, the Issuing Bank shall make such Letter of Credit available to the
applicable Borrower at its office referred to in Section 9.02 or as otherwise agreed with such
Borrower in connection with such Issuance. In the event and to the extent that the provisions of
any Letter of Credit Agreement shall conflict with this Agreement, the provisions of this Agreement
shall govern.




          (b) Participations. By the Issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing or decreasing the amount thereof) and without any further action on the
part of the applicable Issuing Bank or the Lenders, such Issuing Bank hereby grants to each Lender,
and each Lender hereby acquires
from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s
Ratable Share of the Available Amount of such Letter of Credit. Each Borrower hereby agrees to
each such participation. In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Agent, for the account of such Issuing Bank,
such Lender’s Ratable Share of each drawing made under a Letter of Credit funded by such Issuing
Bank and not reimbursed by the applicable Borrower on the date made, or of





13









 




any reimbursement
payment required to be refunded to such Borrower for any reason, which amount will be advanced, and
deemed to be an Advance to such Borrower hereunder, regardless of the satisfaction of the
conditions set forth in Section 3.02. Each Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Revolving Credit Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction whatsoever. Each Lender further
acknowledges and agrees that its participation in each Letter of Credit will be automatically
adjusted to reflect such Lender’s Ratable Share of the Available Amount of such Letter of Credit at
each time such Lender’s Revolving Credit Commitment is amended pursuant to a Commitment Increase in
accordance with Section 2.18, an assignment in accordance with Section 9.07 or otherwise pursuant
to this Agreement.




          (c) Drawing and Reimbursement. The payment by an Issuing Bank of a draft drawn under
any Letter of Credit which is not reimbursed by the applicable Borrower on the date made shall
constitute for all purposes of this Agreement the making by any such Issuing Bank of an Advance,
which shall be a Base Rate Advance, in the amount of such draft, without regard to whether the
making of such an Advance would exceed such Issuing Bank’s Unused Commitment. Each Issuing Bank
shall give prompt notice of each drawing under any Letter of Credit issued by it to the applicable
Borrower and the Agent. Upon written demand by such Issuing Bank, with a copy of such demand to
the Agent and the applicable Borrower, each Lender shall pay to the Agent such Lender’s Ratable
Share of such outstanding Advance pursuant to Section 2.03(b). Each Lender acknowledges and agrees
that its obligation to make Advances 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 Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction whatsoever. Promptly after
receipt thereof, the Agent shall transfer such funds to such Issuing Bank. Each Lender agrees to
fund its Ratable Share of an outstanding Advance on (i) the Business Day on which demand therefor
is made by such Issuing Bank, provided that notice of such demand is given not later than
11:00 A.M. (New York City time) on such Business Day, or (ii) the first Business Day next
succeeding such demand if notice of such demand is given after such time. If and to the extent
that any Lender shall not have so made the amount of such Advance available to the Agent, such
Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon,
for each day from the date of demand by any such Issuing Bank until the date such amount is paid to
the Agent, at the Federal Funds Rate for its account or the account of such Issuing Bank, as
applicable. If such Lender shall pay to the Agent such amount for the account of any such Issuing
Bank on any Business Day, such amount so paid in respect of principal shall constitute an Advance
made by such Lender on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Advance made by such Issuing Bank shall be reduced by such amount on such
Business Day.




          (d) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to the Agent and
each Lender (with a copy to the Company) on the first Business Day of each month a written report
summarizing Issuance and expiration dates of Letters of Credit issued by such Issuing Bank during
the preceding month and drawings during such month under all Letters of Credit and (B) to the Agent
and each Lender (with a copy to the Company) on the first Business Day of each calendar quarter a
written report setting forth the average daily aggregate Available Amount during the preceding
calendar quarter of all Letters of Credit issued by such Issuing Bank.




          (e) Failure to Make Advances. The failure of any Lender to make the Advance to be
made by it on the date specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Advance on such date, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made by such other Lender on such date.




          SECTION 2.04. Fees. (a) Facility Fee. Cooper US agrees to pay to the Agent
for the account of each Lender a facility fee on the aggregate amount of such Lender’s Revolving
Credit Commitment (as in effect from time to time) from the Effective Date in the case of each
Initial Lender and from the effective date specified in the Assumption Agreement or in the
Assignment and Acceptance pursuant to which it became a Lender in the case of each other Lender
until the Termination Date applicable to such Lender at a rate per annum equal to the Applicable
Percentage in effect from time to time, payable in arrears quarterly on the last day of each March,
June,




14









 




September and December, commencing September 30, 2009, and on the Termination Date applicable
to such Lender.




          (b) Letter of Credit Fees. (i) Each Borrower shall pay to the Agent for the account
of each Lender a commission on such Lender’s Ratable Share of the average daily aggregate Available
Amount of all Letters of Credit issued for the account of such Borrower and outstanding from time
to time at a rate per annum equal to the Applicable Margin for Eurodollar Rate Advances in effect
from time to time during such calendar quarter, payable in arrears quarterly on the last day of
each March, June, September and December, commencing with the quarter ended September 30, 2009, and
on the Termination Date applicable to such Lender; provided that the Applicable Margin
shall be 2% above the Applicable Margin for Eurodollar Rate Advances in effect upon the occurrence
and during the continuation of an Event of Default if such Borrower is required to pay default
interest pursuant to Section 2.07(b).





     (ii) Each Borrower shall pay to each Issuing Bank, for its own account, a fronting fee
and such other commissions, issuance fees, transfer fees and other fees and charges in
connection with the Issuance or administration of each Letter of Credit as such Borrower and
such Issuing Bank shall agree.



          (c) Agent’s Fees. Cooper US shall pay to the Agent for its own account such fees as
may from time to time be agreed between the Company and the Agent.




          SECTION 2.05. Termination or Reduction of the Commitments. (a) Ratable
Reduction. The Company shall have the right, upon at least three Business Days’ notice to the
Agent, to terminate in whole or permanently reduce ratably in part the Unused Commitments or the
Unissued Letter of Credit Commitments of the Lenders, provided that each partial reduction
shall be in the aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof.




          (b) Non-Ratable Reduction. The Company shall have the right, at any time, upon at
least three Business Days’ notice to a Defaulting Lender (with a copy to the Agent), to terminate
in whole such Defaulting Lender’s Commitment. Such termination shall be effective with respect to
such Defaulting Lender’s unused Commitment on the date set forth in such notice, provided,
however, that such date shall be no earlier than three Business Days after receipt of such
notice. Upon termination of a Lender’s Commitment under this Section 2.05(b), the Borrowers will
pay all principal of, and interest accrued to the date of such payment on, Advances owing to such
Defaulting Lender and pay any accrued facility fee payable to such Defaulting Lender pursuant to
the provisions of Section 2.04(a), and all other amounts payable to such Defaulting Lender
hereunder (including, but not limited to, any increased costs, additional interest or other amounts
owing under Section 2.11, any indemnification for taxes under Section 2.14, and any compensation
payments due as provided in Section 9.04(c)); and upon such payments, the obligations of such
Defaulting Lender hereunder shall, by the provisions hereof, be released and discharged;
provided, however, that (i) such Defaulting Lender’s rights under Sections 2.11,
2.14 and 9.04, and its obligations under Section 9.04 shall survive such release and discharge as
to matters occurring prior to such date; and (ii) no claim that the Borrowers may have against such
Defaulting Lender arising out of such Defaulting Lender’s default hereunder shall be released or
impaired in any way. The aggregate amount of the Commitments of the Lenders once reduced pursuant
to this Section 2.05(b) may not be reinstated; provided further, however, that if
pursuant to this Section 2.05(b), the Borrowers shall pay to a Defaulting Lender any principal of,
or interest accrued on, the Advances owing to such Defaulting Lender, then the Borrowers shall
either (x) confirm to the Agent that the conditions set forth in Section 3.02(a) are met on and as
of such date of payment or (y) pay or cause to be paid a ratable payment of principal and interest
to all Lenders who are not Defaulting Lenders.




          SECTION 2.06. Repayment of Advances and Letter of Credit Drawings. (a)
Advances. Each Borrower shall repay to the Agent
for the ratable account of each Lender on the Termination Date applicable to such Lender the
aggregate principal amount of the Advances made to it by such Lender and then outstanding.




          (b) Letter of Credit Drawings. The obligations of each Borrower under any Letter of
Credit Agreement and any other agreement or instrument relating to any Letter of Credit issued for
the account of such Borrower shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit Agreement and such other
agreement or instrument under all circumstances, including, without limitation, the following
circumstances (it being understood that any such payment by such




15









 




Borrower is without prejudice to,
and does not constitute a waiver of, any rights such Borrower might have or might acquire as a
result of the payment by any Lender of any draft or the reimbursement by such Borrower thereof):





     (i) any lack of validity or enforceability of this Agreement, any Note, any Letter of
Credit Agreement, any Letter of Credit or any other agreement or instrument relating thereto
(all of the foregoing being, collectively, the “L/C Related Documents”);




     (ii) any change in the time, manner or place of payment of, or in any other term of,
all or any of the obligations of such Borrower in respect of any L/C Related Document or any
other amendment or waiver of or any consent to departure from all or any of the L/C Related
Documents;




     (iii) the existence of any claim, set-off, defense or other right that such Borrower
may have at any time against any beneficiary or any transferee of a Letter of Credit (or any
Persons for which any such beneficiary or any such transferee may be acting), any Issuing
Bank, the Agent, any Lender or any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;




     (iv) any statement or any other document presented under a Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;




     (v) payment by any Issuing Bank under a Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter of Credit;




     (vi) any exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any guarantee, for all or any of the
obligations of such Borrower in respect of the L/C Related Documents; or




     (vii) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including, without limitation, any other circumstance that might otherwise
constitute a defense available to, or a discharge of, such Borrower or a guarantor.



          SECTION 2.07. Interest on Advances. (a) Scheduled Interest. Each Borrower
shall pay interest on the unpaid principal amount of each Advance made to it and owing to each
Lender from the date of such Advance until such principal amount shall be paid in full, at the
following rates per annum:





     (i) Base Rate Advances. During such periods as such Advance is a Base Rate
Advance, a rate per annum equal at all times to the sum of (x) the Base Rate in effect from
time to time plus (y) the Applicable Margin in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be Converted or paid in full.




     (ii) Eurodollar Rate Advances. During such periods as such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for
such Advance to the sum of (x) the Eurodollar Rate for such Interest Period for such Advance
plus (y) the Applicable Margin in effect from time to time, payable in arrears on
the last day of such Interest Period and, if such Interest Period has
a duration of more than three months, on each day that occurs during such Interest
Period every three months from the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.



          (b) Default Interest. Upon the occurrence and during the continuance of an Event of
Default, the Agent may, and upon the request of the Required Lenders shall, require the Borrowers
to pay interest (“Default Interest”) on (i) the unpaid principal amount of each Advance
owing to each Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii)
above, at a rate per annum equal at all times to 2% per annum above the rate per annum required to
be paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest extent




16









 




permitted by law, the amount of any interest, fee or other amount payable hereunder that is not
paid when due, from the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above; provided, however, that following
acceleration of the Advances pursuant to Section 6.01, Default Interest shall accrue and be payable
hereunder whether or not previously required by the Agent.




          SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank agrees, if
requested by the Agent, to furnish to the Agent timely information for the purpose of determining
each Eurodollar Rate. If any one or more of the Reference Banks shall not furnish such timely
information to the Agent for the purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Company and the Lenders of the
applicable interest rate determined by the Agent for purposes of Section 2.07(a)(i) or (ii), and
the rate, if any, furnished by each Reference Bank for the purpose of determining the interest rate
under Section 2.07(a)(ii).




          (b) If, with respect to any Eurodollar Rate Advances, the Required Lenders notify the Agent
that (i) they are unable to obtain matching deposits in the London inter-bank market at or about
11:00 A.M. (London time) on the second Business Day before the making of a Borrowing in sufficient
amounts to fund their respective Advances as a part of such Borrowing during its Interest Period or
(ii) the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Required Lenders of making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Agent shall forthwith so notify the Company and the Lenders,
whereupon (i) the Borrower of such Eurodollar Rate Advances will, on the last day of the then
existing Interest Period therefor, either prepay such Advances or Convert such Advances into Base
Rate Advances and (ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Agent shall notify the Company and the
Lenders that the circumstances causing such suspension no longer exist.




          (c) If any Borrower shall fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest
Period” in Section 1.01, the Agent will forthwith so notify such Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing Interest Period therefor, Convert
into Base Rate Advances.




          (d) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances
comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than
$5,000,000, such Advances shall automatically Convert into Base Rate Advances.




          (e) Upon the occurrence and during the continuance of any Event of Default, (i) each
Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period
therefor, be Converted into Base Rate Advances and (ii) the obligation of the Lenders to make, or
to Convert Advances into, Eurodollar Rate Advances shall be suspended.




          (f) If Reuters LIBOR01 Page is unavailable and fewer than two Reference Banks furnish timely
information to the Agent for determining the Eurodollar Rate for any Eurodollar Rate Advances after
the Agent has requested such information,





     (i) the Agent shall forthwith notify the applicable Borrower and the Lenders that the
interest rate cannot be determined for such Eurodollar Rate Advances,




     (ii) each such Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance (or if such Advance is then a
Base Rate Advance, will continue as a Base Rate Advance), and




     (iii) the obligation of the Lenders to make Eurodollar Rate Advances or to Convert
Advances into Eurodollar Rate Advances shall be suspended until the Agent shall notify the
Company and the Lenders that the circumstances causing such suspension no longer exist.



17









 





          SECTION 2.09. Optional Conversion of Advances. The Borrower of any Advance may on
any Business Day, upon notice given to the Agent not later than 11:00 A.M. (New York City time) on
the third Business Day prior to the date of the proposed Conversion and subject to the provisions
of Sections 2.08 and 2.12, Convert all Advances of one Type comprising the same Borrowing into
Advances of the other Type; provided, however, that any Conversion of Eurodollar
Rate Advances into Base Rate Advances shall be made only on the last day of an Interest Period for
such Eurodollar Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate Advances
shall be in an amount not less than the minimum amount specified in Section 2.02(c) and no
Conversion of any Advances shall result in more separate Borrowings than permitted under
Section 2.02(c). Each such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial Interest Period for each
such Advance. Each notice of Conversion shall be irrevocable and binding on the Borrower giving
such notice.




          SECTION 2.10. Optional Prepayments of Advances. Each Borrower may, upon notice at
least two Business Days’ prior to the date of such prepayment, in the case of Eurodollar Rate
Advances, and not later than 11:00 A.M. (New York City time) on the date of such prepayment, in the
case of Base Rate Advances, to the Agent stating the proposed date and aggregate principal amount
of the prepayment, and if such notice is given such Borrower shall, prepay the outstanding
principal amount of the Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment of Advances shall be in an
aggregate principal amount of not less than $5,000,000 or $1,000,000 in excess thereof and (y) in
the event of any such prepayment of a Eurodollar Rate Advance, such Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 9.04(c).




          SECTION 2.11. Increased Costs and Additional Interest. (a) If, due to either
(i) the introduction of or any change in or in the interpretation of any law or regulation after
the date hereof or (ii) the compliance with any guideline or request from any central bank or other
governmental authority including, without limitation, any agency of the European Union or similar
monetary or multinational authority (whether or not having the force of law) after the date hereof,
there shall be any increase in the cost to any Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Advances or of agreeing to issue or of issuing or maintaining or
participating in Letters of Credit (excluding for purposes of this Section 2.11 any such increased
costs resulting from (i) Taxes or Other Taxes (as to which Section 2.14 shall govern) and (ii)
changes in the basis of taxation of overall net income or overall gross income by the United States
or by the foreign jurisdiction or state under the laws of which such Lender is organized or has its
Applicable Lending Office or any political subdivision thereof), then the Company shall from time
to time, upon demand by such Lender (with a copy of such demand to the Agent), pay to the Agent for
the account of such Lender additional amounts sufficient to compensate such Lender for such
increased cost; provided, however, that before making any such demand, each Lender
agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making of such designation
would avoid the need for, or reduce the amount of, such increased cost and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender. A certificate as
to the amount of such increased cost and stating the reason for such increased cost (provided that
such certificate shall not be required to include any calculations of such increased cost),
submitted to the Company and the Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error.




          (b) If any Lender determines that compliance with any law or regulation or any guideline or
request from any central bank or other governmental authority (whether or not having the force of
law) affects or would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such capital is increased
by or based upon the existence of such Lender’s commitment to lend or to issue or participate in
Letters of Credit hereunder and other commitments of such type or the issuance or maintenance of or
participation in the Letters of Credit (or similar contingent obligations), then, upon demand by
such Lender (with a copy of such demand to the Agent), the Company shall pay to the Agent for the
account of such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital to be allocable to the
existence of such Lender’s commitment to lend or to issue or participate in Letters of Credit
hereunder or to the issuance or maintenance of or participation in any




18









 




Letters of Credit. A
certificate as to such amounts and stating the reason for such amounts (provided that such
certificate shall not be required to include any calculations of such amounts) submitted to the
Company and the Agent by such Lender shall be conclusive and binding for all purposes, absent
manifest error.




          (c) Cooper US shall pay to the Agent for the account of each Lender any costs actually
incurred by such Lender that are attributable to such Lender’s compliance with regulations of the
Board of Governors of the Federal Reserve System requiring the maintenance of reserves with respect
to liabilities or assets consisting of or including Eurocurrency Liabilities. Such costs shall be
paid to the Agent for the account of such Lender in the form of additional interest on the unpaid
principal amount of each Eurodollar Rate Advance of such Lender, from the date such Advance is made
until such principal amount is paid in full, at an interest rate per annum equal at all times to
the remainder obtained by subtracting (i) the Eurodollar Rate for the Interest Period for such
Advance from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period, payable on
each date that interest is payable on the principal amount of such Advance. Such additional
interest shall be determined by such Lender and notified Cooper US through the Agent at least two
Business Days prior to the relevant date for payment of such interest, provided, that
failure to so notify Cooper US shall not constitute a waiver of such Lender’s right to request and
receive additional interest under this subsection (c). A certificate as to the amount of such
additional interest and stating the reason for such additional interest (provided that such
certificate shall not be required to include any calculations of such additional interest),
submitted to Cooper US and the Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error.




          (d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender’s right to demand such compensation; provided
that the Company shall not be required to compensate such Lender pursuant to this Section for any
increased costs or reductions incurred more than 180 days prior to the date that such Lender
notifies the Company of the change in law or circumstance giving rise to such increased costs or
reductions and of such Lender’s intention to claim compensation therefor; provided
further that, if the change in law or circumstance 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 2.12. Illegality. Notwithstanding any other provision of this Agreement, if
any Lender shall notify the Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for any Lender or its Eurodollar Lending Office
to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate Advance will automatically, upon such
demand, be Converted into a Base Rate Advance and (b) the obligation of the Lenders to make
Eurodollar Rate Advances or to Convert Advances into Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Company and the Lenders that the circumstances causing such
suspension no longer exist; provided, however, that before making any such demand,
each Lender agrees to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Eurodollar Lending Office if the making of such a
designation would allow such Lender or its Eurodollar Lending Office to continue to perform its
obligations to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances and would not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender.




          SECTION 2.13. Payments and Computations. (a) Each Borrower shall make each payment
hereunder, irrespective of any right of counterclaim or set-off, not later than 11:00 A.M.
(New York City time) on the day when due in Dollars to the Agent at the Agent’s Account in same day
funds. The Agent will promptly thereafter cause to be distributed like funds relating to the
payment of principal or interest, fees or commissions ratably (other than amounts payable pursuant
to Section 2.04(b), 2.11, 2.14 or 9.04(c)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any other amount payable to
any Lender to such Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon any Assuming Lender becoming a Lender
hereunder as a result of a Commitment Increase pursuant to Section 2.18 or an extension of the
Termination Date pursuant to Section 2.19, and upon the Agent’s receipt of such Lender’s Assumption
Agreement and recording of the information contained therein in the Register, from and after the
applicable Increase Date or Extension Date, as the case may be, the Agent shall make all payments
hereunder and under any Notes issued in connection therewith in respect of the




19









 




interest assumed
thereby to the Assuming Lender. Upon its acceptance of an Assignment and Acceptance and recording
of the information contained therein in the Register pursuant to Section 9.07(c), from and after
the effective date specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly between themselves.




          (b) Each Borrower hereby authorizes each Lender, if and to the extent payment owed to such
Lender is not made when due hereunder or under the Note held by such Lender, to charge from time to
time against any or all of such Borrower’s accounts with such Lender any amount so due.




          (c) All computations of interest based on the Base Rate shall be made by the Agent on the
basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on
the Eurodollar Rate or the Federal Funds Rate and of fees and Letter of Credit commissions shall be
made by the Agent on the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for which such
interest, fees or commissions are payable. Each determination by the Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest error.




          (d) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest, fee or
commission, as the case may be; provided, however, that, if such extension would
cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding Business Day.




          (e) Unless the Agent shall have received notice from any Borrower prior to the date on which
any payment is due to the Lenders hereunder that such Borrower will not make such payment in full,
the Agent may assume that such Borrower has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due
date an amount equal to the amount then due such Lender. If and to the extent such Borrower shall
not have so made such payment in full to the Agent, each Lender shall repay to the Agent forthwith
on demand such amount distributed to such Lender together with interest thereon, for each day from
the date such amount is distributed to such Lender until the date such Lender repays such amount to
the Agent, at the Federal Funds Rate.




          SECTION 2.14. Taxes. (a) Any and all payments by each Borrower to or for the
account of any Lender or the Agent hereunder or under the Notes or any other documents to be
delivered hereunder shall be made, in accordance with Section 2.13 or the applicable provisions of
such other documents, free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Agent, taxes imposed on its overall
net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
under the laws of which such Lender or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction of such Lender’s
Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings
and liabilities in respect of payments hereunder or under the Notes being hereinafter referred
to as “Taxes”). If any Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any Note or any other documents to be delivered
hereunder to any Lender or the Agent, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions applicable to additional sums
payable under this Section 2.14) such Lender or the Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall
make such deductions and (iii) such Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.




          (b) In addition, the Company shall pay any present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies that arise from any payment made
hereunder or under the Notes or any other documents to be delivered hereunder or from the
execution, delivery or registration of,




20









 




performing under, or otherwise with respect to, this
Agreement or the Notes or any other documents to be delivered hereunder (hereinafter referred to as
“Other Taxes”).




          (c) Each Borrower shall indemnify each Lender and the Agent for and hold it harmless against
the full amount of Taxes or Other Taxes (including, without limitation, taxes of any kind imposed
or asserted by any jurisdiction on amounts payable under this Section 2.14) imposed on or paid by
such Lender or the Agent (as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender or the Agent (as the case may be) makes written demand therefor.




          (d) Within 30 days after the date of any payment of Taxes, each Borrower shall furnish to the
Agent, at its address referred to in Section 9.02, the original or a certified copy of a receipt
evidencing such payment to the extent such a receipt is issued therefor, or other written proof of
payment thereof that is reasonably satisfactory to the Agent. In the case of any payment hereunder
or under the Notes or any other documents to be delivered hereunder by or on behalf of such
Borrower through an account or branch outside the United States or by or on behalf of such Borrower
by a payor that is not a United States person, if such Borrower determines that no Taxes are
payable in respect thereof, such Borrower shall furnish, or shall cause such payor to furnish, to
the Agent, at such address, an opinion of counsel acceptable to the Agent stating that such payment
is exempt from Taxes. For purposes of this subsection (d) and subsection (e), the terms
“United States” and “United States person” shall have the meanings specified in
Section 7701 of the Internal Revenue Code.




          (e) Each Lender organized under the laws of a jurisdiction outside the United States, on or
prior to the date of its execution and delivery of this Agreement in the case of each Initial
Lender and on the date of the Assumption Agreement or the Assignment and Acceptance pursuant to
which it becomes a Lender in the case of each other Lender, and from time to time thereafter as
reasonably requested in writing by the Company (but only so long as such Lender remains lawfully
able to do so), shall provide each of the Agent and the Company with two original Internal Revenue
Service Forms W-8BEN or W-8ECI, as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender is exempt from or entitled to a reduced rate
of United States withholding tax on payments pursuant to this Agreement or the Notes. If the form
provided by a Lender at the time such Lender first becomes a party to this Agreement indicates a
United States interest withholding tax rate in excess of zero, withholding tax at such rate shall
be considered excluded from Taxes unless and until such Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which a Lender
assignee becomes a party to this Agreement, the Lender assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such date. If any form or document
referred to in this subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof by Internal
Revenue Service Form W-8BEN or W-8ECI, that the Lender reasonably considers to be confidential, the
Lender shall give notice thereof to the Company and shall not be obligated to include in such form
or document such confidential information.




          (f) For any period with respect to which a Lender has failed to provide the Company with the
appropriate form, certificate or other document described in Section 2.14(e) (other
than if such failure is due to a change in law, or in the interpretation or application
thereof, occurring subsequent to the date on which a form, certificate or other document originally
was required to be provided, or if such form, certificate or other document otherwise is not
required under subsection (e) above), such Lender shall not be entitled to indemnification under
Section 2.14(a) or (c) with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender become subject to Taxes because of
its failure to deliver a form, certificate or other document required hereunder, the Company shall
take such steps as the Lender shall reasonably request to assist the Lender to recover such Taxes.




          (g) Any Lender claiming any additional amounts payable pursuant to this Section 2.14 agrees to
use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions)
to change the jurisdiction of its Eurodollar Lending Office if the making of such a change would
avoid the need for, or reduce the




21









 




amount of, any such additional amounts that may thereafter accrue
and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender.




          (h) If any Lender determines 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, it shall pay over such refund to such Borrower, net of
all out-of-pocket expenses of such Lender and without interest (other than any interest paid by the
relevant governmental authority with respect to such refund). This subsection shall not be
construed to require any Lender to make available its tax returns (or any other information
relating to its taxes which it deems confidential) to the Borrowers.




          SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on
account of the Advances owing to it (other than (x) as payment of an Advance made by an Issuing
Bank pursuant to the first sentence of Section 2.03(c) or (y) pursuant to Section 2.05(b), 2.11,
2.14 or 9.04(c)) in excess of its Ratable Share of payments on account of the Advances obtained by
all the Lenders, such Lender shall forthwith purchase from the other Lenders (other than any
Defaulting Lenders) such participations in the Advances owing to them as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender’s ratable share (according to the proportion of
(i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.15 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of such Borrower in the
amount of such participation.




          SECTION 2.16. Evidence of Debt. (a) 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 Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time hereunder in respect of
Advances. Each Borrower agrees that upon notice by any Lender to such Borrower (with a copy of
such notice to the Agent) to the effect that a Note is required or appropriate in order for such
Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Advances owing
to, or to be made by, such Lender, such Borrower shall promptly execute and deliver to such Lender
a Note payable to the order of such Lender in a principal amount up to the Revolving Credit
Commitment of such Lender.




          (b) The Register maintained by the Agent pursuant to Section 9.07(d) shall include a control
account, and a subsidiary account for each Lender, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it, (iii) the
amount of any principal or interest due and
payable or to become due and payable from each Borrower to each Lender hereunder and (iv) the
amount of any sum received by the Agent from such Borrower hereunder and each Lender’s share
thereof.




          (c) Entries made in good faith by the Agent in the Register pursuant to subsection (b) above,
and by each Lender in its account or accounts pursuant to subsection (a) above, shall be
prima facie evidence of the amount of principal and interest due and payable or to
become due and payable from each Borrower to, in the case of the Register, each Lender and, in the
case of such account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an entry,
or any finding that an entry is incorrect, in the Register or such account or accounts shall not
limit or otherwise affect the obligations of any Borrower under this Agreement.




          SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be available (and
each Borrower agrees that it shall use such proceeds) solely for general corporate purposes of such
Borrower and its Subsidiaries.





22









 








          SECTION 2.18. Increase in the Aggregate Commitments. (a) The Company may, at any
time but in any event not more than once in any calendar year prior to the latest Termination Date,
by notice to the Agent, request that the aggregate amount of the Commitment be increased by an
amount of $10,000,000 or an integral multiple thereof (each a “Commitment Increase”) to be
effective as of a date that is at least 90 days prior to the scheduled Termination Date then in
effect (the “Increase Date”) as specified in the related notice to the Agent;
provided, however that (i) in no event shall the aggregate amount of the
Commitments at any time exceed $500,000,000 and (ii) on the date of any request by the Company for
a Commitment Increase and on the related Increase Date the applicable conditions set forth in
Section 3.02 shall be satisfied.




          (b) The Agent shall promptly notify the Lenders of a request by the Company for a Commitment
Increase, which notice shall include (i) the proposed amount of such requested Commitment Increase,
(ii) the proposed Increase Date and (iii) the date by which Lenders wishing to participate in the
Commitment Increase must commit to an increase in the amount of their respective Commitments (the
“Commitment Date”). Each Lender that is willing to participate in such requested
Commitment Increase (each an “Increasing Lender”) shall, in its sole discretion, give
written notice to the Agent on or prior to the Commitment Date of the amount by which it is willing
to increase its Commitment. If the Lenders notify the Agent that they are willing to increase the
amount of their respective Commitments by an aggregate amount that exceeds the amount of the
requested Commitment Increase, the requested Commitment Increase shall be allocated among the
Lenders willing to participate therein in such amounts as are agreed between the Company and the
Agent.




          (c) Promptly following each Commitment Date, the Agent shall notify the Company as to the
amount, if any, by which the Lenders are willing to participate in the requested Commitment
Increase. If the aggregate amount by which the Lenders are willing to participate in any requested
Commitment Increase on any such Commitment Date is less than the requested Commitment Increase,
then the Company may extend offers to one or more Eligible Assignees to participate in any portion
of the requested Commitment Increase that has not been committed to by the Lenders as of the
applicable Commitment Date; provided, however, that the Commitment of each such
Eligible Assignee shall be in an amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof.




          (d) On each Increase Date, each Eligible Assignee that accepts an offer to participate in a
requested Commitment Increase in accordance with Section 2.18(b) (each such Eligible Assignee, an
“Assuming Lender”) shall become a Lender party to this Agreement as of such Increase Date
and the Commitment of each Increasing Lender for such requested Commitment Increase shall be so
increased by such amount (or by the amount allocated to such Lender pursuant to the last sentence
of Section 2.18(b)) as of such Increase Date; provided, however, that the Agent
shall have received on or before such Increase Date the following, each dated such date:





     (i) (A) certified copies of resolutions of the Board of Directors of the Company or the
Executive Committee of such Board approving the Commitment Increase and the corresponding
modifications to this Agreement and (B) an opinion of counsel for the Company (which
may be in-house counsel), in substantially the form of Exhibit D hereto;




     (ii) an assumption agreement from each Assuming Lender, if any, in form and substance
satisfactory to the Company and the Agent (each an “Assumption Agreement”), duly
executed by such Eligible Assignee, the Agent and the Company; and




     (iii) confirmation from each Increasing Lender of the increase in the amount of its
Commitment in a writing satisfactory to the Company and the Agent.


On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding
sentence of this Section 2.18(d), the Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) and the Company, on or before 1:00 P.M. (New York City time), by
telecopier, of the occurrence of the Commitment Increase to be effected on such Increase Date and
shall record in the Register the relevant information with respect to each Increasing Lender and
each Assuming Lender on such date. Each Increasing Lender and each Assuming Lender shall, before
2:00 P.M. (New York City time) on the Increase Date, make available for the account of its
Applicable Lending Office to the Agent at the Agent’s Account, in same day funds, in the case of
such Assuming


23









 






Lender, an amount equal to such Assuming Lender’s ratable portion of the Borrowings
then outstanding (calculated based on its Revolving Credit Commitment as a percentage of the
aggregate Revolving Credit Commitments outstanding after giving effect to the relevant Commitment
Increase) and, in the case of such Increasing Lender, an amount equal to the excess of (i) such
Increasing Lender’s ratable portion of the Borrowings then outstanding (calculated based on its
Revolving Credit Commitment as a percentage of the aggregate Revolving Credit Commitments
outstanding after giving effect to the relevant Commitment Increase) over (ii) such Increasing
Lender’s ratable portion of the Borrowings then outstanding (calculated based on its Revolving
Credit Commitment (without giving effect to the relevant Commitment Increase) as a percentage of
the aggregate Revolving Credit Commitments (without giving effect to the relevant Commitment
Increase). After the Agent’s receipt of such funds from each such Increasing Lender and each such
Assuming Lender, the Agent will promptly thereafter cause to be distributed like funds to the other
Lenders for the account of their respective Applicable Lending Offices in an amount to each other
Lender such that the aggregate amount of the outstanding Advances owing to each Lender after giving
effect to such distribution equals such Lender’s ratable portion of the Borrowings then outstanding
(calculated based on its Revolving Credit Commitment as a percentage of the aggregate Revolving
Credit Commitments outstanding after giving effect to the relevant Commitment Increase).




          SECTION 2.19. Extension of Termination Date. (a) At least 45 days but not more than
60 days prior to each anniversary of the Effective Date, the Company, by written notice to the
Agent, may request an extension of the Termination Date applicable to each Lender in effect at such
time by one year from its then scheduled expiration. The Agent shall promptly notify each Lender
of such request, and each Lender shall in turn, in its sole discretion, not earlier than 30 days
prior nor later than 20 days prior to such anniversary date, notify the Company and the Agent in
writing as to whether such Lender will consent to such extension. If any Lender shall fail to
notify the Agent and the Company in writing of its consent to any such request for extension of the
Termination Date at least 20 days prior to such anniversary date, such Lender shall be deemed to be
a Non-Consenting Lender with respect to such request. The Agent shall notify the Company not later
than 15 days prior to the applicable anniversary date of the decision of the Lenders regarding the
Company’s request for an extension of the Termination Date.




          (b) If all the Lenders consent in writing to any such request in accordance with subsection
(a) of this Section 2.19, the Termination Date in effect at such time shall, effective as at the
Termination Date (the “Extension Date”), be extended for one year; provided that on
each Extension Date the applicable conditions set forth in Section 3.02 shall be satisfied. If
less than all of the Lenders consent in writing to any such request in accordance with subsection
(a) of this Section 2.19, the Termination Date in effect at such time shall, effective as at the
applicable Extension Date and subject to subsection (d) of this Section 2.19, be extended as to
those Lenders that so consented (each a “Consenting Lender”) but shall not be extended as
to any other Lender (each a “Non-Consenting Lender”). To the extent that the Termination
Date is not extended as to any Lender pursuant to this Section 2.19 and the Commitment of such
Lender is not assumed in accordance with subsection (c) of this Section 2.19 on or prior to the
applicable Extension Date, the Commitment of such Non-Consenting Lender shall
automatically terminate in whole on such unextended Termination Date without any further
notice or other action by the Company, such Lender or any other Person; provided that such
Non-Consenting Lender’s rights under Sections 2.11, 2.14 and 9.04, and its obligations under
Section 9.04, shall survive the Termination Date for such Lender as to matters occurring prior to
such date. It is understood and agreed that no Lender shall have any obligation whatsoever to
agree to any request made by the Company for any requested extension of the Termination Date.




          (c) If fewer than all of the Lenders consent to any such request pursuant to subsection (a) of
this Section 2.19, the Agent shall promptly so notify the Consenting Lenders, and each Consenting
Lender may, in its sole discretion, give written notice to the Agent not later than 10 days prior
to the Termination Date of the amount of the Non-Consenting Lenders’ Commitments for which it is
willing to accept an assignment. If the Consenting Lenders notify the Agent that they are willing
to accept assignments of Commitments in an aggregate amount that exceeds the amount of the
Commitments of the Non-Consenting Lenders, such Commitments shall be allocated among the Consenting
Lenders willing to accept such assignments in such amounts as are agreed between the Company and
the Agent. If after giving effect to the assignments of Commitments described above there remains
any Commitments of Non-Consenting Lenders, the Company may arrange for one or more Consenting
Lenders or other Eligible Assignees as Assuming Lenders to assume, effective as of the Extension
Date, any Non-Consenting Lender’s Commitment and all of the obligations of such Non-Consenting
Lender under this Agreement thereafter arising, without recourse to or warranty by, or expense to,
such Non-Consenting Lender; provided,




24









 




however, that the amount of the Commitment of
any such Assuming Lender as a result of such substitution shall in no event be less than
$10,000,000 unless the amount of the Commitment of such Non-Consenting Lender is less than
$10,000,000, in which case such Assuming Lender shall assume all of such lesser amount; and
provided further that:





     (i) any such Consenting Lender or Assuming Lender shall have paid to such
Non-Consenting Lender (A) the aggregate principal amount of, and any interest accrued and
unpaid to the effective date of the assignment on, the outstanding Advances, if any, of such
Non-Consenting Lender plus (B) any accrued but unpaid facility fees owing to such
Non-Consenting Lender as of the effective date of such assignment;




     (ii) all additional costs reimbursements, expense reimbursements and indemnities
payable to such Non-Consenting Lender, and all other accrued and unpaid amounts owing to
such Non-Consenting Lender hereunder, as of the effective date of such assignment shall have
been paid to such Non-Consenting Lender; and




     (iii) with respect to any such Assuming Lender, the applicable processing and
recordation fee required under Section 9.07(a) for such assignment shall have been paid;


provided further that such Non-Consenting Lender’s rights under Sections 2.11, 2.14
and 9.04, and its obligations under Section 9.04, shall survive such substitution as to matters
occurring prior to the date of substitution. At least three Business Days prior to any Extension
Date, (A) each such Assuming Lender, if any, shall have delivered to the Company and the Agent an
Assumption Agreement, duly executed by such Assuming Lender, such Non-Consenting Lender, the
Company and the Agent, (B) any such Consenting Lender shall have delivered confirmation in writing
satisfactory to the Company and the Agent as to the increase in the amount of its Commitment and
(C) each Non-Consenting Lender being replaced pursuant to this Section 2.19 shall have delivered to
the Agent any Note or Notes held by such Non-Consenting Lender. Upon the payment or prepayment of
all amounts referred to in clauses (i), (ii) and (iii) of the immediately preceding sentence, each
such Consenting Lender or Assuming Lender, as of the Extension Date, will be substituted for such
Non-Consenting Lender under this Agreement and shall be a Lender for all purposes of this
Agreement, without any further acknowledgment by or the consent of the other Lenders, and the
obligations of each such Non-Consenting Lender hereunder shall, by the provisions hereof, be
released and discharged.




          (d) If (after giving effect to any assignments or assumptions pursuant to subsection (c) of
this Section 2.19) Lenders having Commitments equal to at least 50% of the Commitments in effect
immediately prior to the Extension Date consent in writing to a requested extension (whether by
execution or delivery of an Assumption Agreement or otherwise) not later than one Business Day
prior to such Extension Date, the Agent shall so notify the
Company, and, subject to the satisfaction of the applicable conditions in Section 3.02, the
Termination Date then in effect shall be extended for the additional one-year period as described
in subsection (a) of this Section 2.19, and all references in this Agreement, and in the Notes, if
any, to the “Termination Date” shall, with respect to each Consenting Lender and each
Assuming Lender for such Extension Date, refer to the Termination Date as so extended. Promptly
following each Extension Date, the Agent shall notify the Lenders (including, without limitation,
each Assuming Lender) of the extension of the scheduled Termination Date in effect immediately
prior thereto and shall thereupon record in the Register the relevant information with respect to
each such Consenting Lender and each such Assuming Lender.




          SECTION 2.20. Defaulting Lenders. Anything contained herein to the contrary
notwithstanding, (a) to the extent permitted by applicable law, until such time as the Default
Excess with respect to such Defaulting Lender shall have been reduced to zero, any prepayment of
the Advances shall, if the applicable Borrower so directs at the time of making such prepayment, be
applied to the Advances of other Lenders as if such Defaulting Lender had no Advances outstanding;
(b) such Defaulting Lender’s unused Commitment shall be excluded for purposes of calculating the
facility fee payable to Lenders pursuant to Section 2.04(a) in respect of any day during any
Default Period with respect to such Defaulting Lender; and (c) the aggregate amount of the Advances
as at any date of determination shall be calculated as if such Defaulting Lender had funded all
Defaulted Advances of such Defaulting Lender for purposes of determining the aggregate amount of
the total Commitments available to be




25









 




drawn by the Borrowers. No Commitment of any Lender shall be
increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.20,
performance by any Borrower or any Lender of its obligations hereunder shall not be excused or
otherwise modified as a result of any failure by a Defaulting Lender to fund or the operation of
this Section 2.20. The rights and remedies against a Defaulting Lender under this Section 2.20 are
in addition to other rights and remedies that the Borrowers, the Agent or any other Lender may have
against such Defaulting Lender with respect to any Defaulted Advance.




ARTICLE III




CONDITIONS TO EFFECTIVENESS AND LENDING




          SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01. Section 2.01 of
this Agreement shall become effective on and as of the first date (the “Effective Date”) on
which the following conditions precedent have been satisfied:





     (a) Nothing shall have come to the attention of the Lenders during the course of their
due diligence investigation to lead them to believe that the Information Memorandum was or
has become misleading, incorrect or incomplete in any material respect; without limiting the
generality of the foregoing, the Lenders shall have been given such access to the
management, records, books of account, contracts and properties of the Company and its
Subsidiaries as they shall have requested.




     (b) The Company shall have paid all accrued fees and expenses of the Agent and the
Lenders (including the accrued fees and expenses of counsel to the Agent).




     (c) On the Effective Date, the following statements shall be true and the Agent shall
have received for the account of each Lender a certificate signed by a duly authorized
officer of the Company, dated the Effective Date, stating that:




     (i) The representations and warranties contained in Section 4.01 are correct on
and as of the Effective Date, and




     (ii) No event has occurred and is continuing that constitutes a Default.




     (d) The Agent shall have received on or before the Effective Date the following, each
dated such day, in form and substance reasonably satisfactory to the Agent and (except for
the Notes) in sufficient copies for each Lender:




     (i) The Notes to the order of the Lenders to the extent requested by any Lender
pursuant to Section 2.16.




     (ii) Certified copies of the resolutions of the Board of Directors of each Loan
Party approving this Agreement and, in the case of the Borrowers, the Notes, and of
all documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement and, in the case of the Borrowers,
the Notes.




     (iii) A certificate of the Secretary or an Assistant Secretary of each Loan
Party certifying the names and true signatures of the officers of such Loan Party
authorized to sign this Agreement and, in the case of the Borrowers, the Notes, and
the other documents to be delivered hereunder.




     (iv) A favorable opinion of King & Spalding LLP, special New York counsel for
the Company, Appleby, special Bermuda counsel for the Company, and in-house counsel
for Loan Parties, substantially in the form of Exhibits D-1, D-2 and D-3 hereto,
respectively, and as to such other matters as any Lender through the Agent may
reasonably request.



26









 






     (v) A favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in
form and substance satisfactory to the Agent.




     (e) The Company shall have terminated the commitments of the lenders and repaid or
prepaid all of the obligations under, the Five Year Credit Agreement dated as of November 3,
2004 among the Company, Cooper US, and the lenders parties thereto, and each of the Lenders
that is a party to such credit facility hereby waives, upon execution of this Agreement, any
notice required by said Credit Agreement relating to the termination of commitments
thereunder.



          SECTION
3.02. Conditions Precedent to Each Borrowing, Issuance, Commitment
Increase and Extension Date. The obligation of each Lender to make an Advance (other an
Advance made by any Issuing Bank or any Lender pursuant to Section 2.03(c)) on the occasion of each
Borrowing, the obligation of each Issuing Bank to issue a Letter of Credit, each Commitment
Increase and each extension of Commitments pursuant to Section 2.19 shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date of such Borrowing,
such issuance, the applicable Increase Date or the applicable Extension Date (as the case may be)
(a) the following statements shall be true (and each of the giving of the applicable Notice of
Borrowing, Notice of Issuance, request for Commitment Increase or request for Commitment extension
and the acceptance by any Borrower of the proceeds of such Borrowing or such issuance shall
constitute a representation and warranty by such Borrower that on the date of such Borrowing, such
issuance, such Increase Date or such Extension Date such statements are true):





     (i) the representations and warranties contained in Section 4.01 (except, in the case
of Borrowings and issuances, the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f)(i) thereof) are correct in all material
respects on and as of such date, before and after giving effect to such Borrowing, such
issuance, such Commitment Increase or such Extension Date and to the application of the
proceeds therefrom, as though made on and as of such date, and




     (ii) no event has occurred and is continuing, or would result from such Borrowing, such
issuance, such Commitment Increase or such Extension Date or from the application of the
proceeds therefrom, that constitutes a Default;


and (b) the Agent shall have received such other information in respect of the Company or any of
its Subsidiaries as any Lender through the Agent may reasonably request.




          In addition to the other conditions precedent herein set forth, if any Lender becomes, and
during the period it remains, a Defaulting Lender, no Issuing Bank will be required to issue any
Letter of Credit or to amend any outstanding Letter of Credit to increase the face amount thereof,
alter the drawing terms thereunder or extend the expiry date thereof, unless such Issuing Bank is
satisfied that any exposure that would result therefrom is eliminated or fully covered by the
Commitments of the non-Defaulting Lenders or by cash collateralization or a combination thereof
satisfactory to such Issuing Bank




          SECTION 3.03. Determinations Under Section 3.01. For purposes of determining
compliance with the conditions specified in Section 3.01, each Lender shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an
officer of the Agent responsible for the transactions contemplated by this Agreement shall have
received notice from such Lender prior to the date that the Company, by notice to the Lenders,
designates as the proposed Effective Date, specifying its objection thereto. The Agent shall
promptly notify the Lenders of the occurrence of the Effective Date.




ARTICLE IV




REPRESENTATIONS AND WARRANTIES




          SECTION 4.01. Representations and Warranties of the Company. The Company represents
and warrants as follows:




27









 









     (a) Each Loan Party is a corporation or limited liability company duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization.




     (b) The execution, delivery and performance by each Loan Party of this Agreement and
the Notes, if any, to be delivered by it, and the consummation of the transactions
contemplated hereby, are within such Loan Party’s corporate or limited liability company
powers, have been duly authorized by all necessary corporate or limited liability company
action, and do not contravene (i) such Loan Party’s charter, by-laws or other constating
documents or (ii) law or any agreement purporting to limit such Loan Party’s right to borrow
money or guaranty obligations (including credit agreements, indentures, guarantees and other
instruments), other than for goods and services purchased in the ordinary course of business
(which are not material in amount) binding on or affecting such Loan Party.




     (c) No authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the due execution, delivery
and performance by each Loan Party of this Agreement or the Notes, if any, to be delivered
by it.




     (d) This Agreement has been, and each of the Notes, if any, to be delivered by it when
delivered hereunder will have been, duly executed and delivered by each Loan Party. This
Agreement is, and each of the Notes, if any, when delivered hereunder will be, the legal,
valid and binding obligation of the Company enforceable against each Loan Party party
thereto in accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or law.




     (e) The Consolidated balance sheet of the Company and its Subsidiaries as at
December 31, 2008, and the related Consolidated statements of income and cash flows of the
Company and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of
Ernst & Young, independent public accountants, and the Consolidated balance sheet of the
Company and its Subsidiaries as at March 31, 2009, and the related Consolidated statements
of income and cash flows of the Company and its Subsidiaries for the three months then
ended, duly certified by the chief financial officer of the Company, copies of which have
been furnished to each Lender, fairly present in all material respects, subject, in the
case of said balance sheet as at March 31, 2009, and said statements of income and cash
flows for the three months then ended, to absence of year-end notes and to normal year-end
audit adjustments, the Consolidated financial condition of the Company and its Subsidiaries
as at such dates and the Consolidated results of the operations of the Company and its
Subsidiaries for the periods ended on such dates, all in accordance with generally accepted
accounting principles consistently applied. Since December 31, 2008, there has been no
Material Adverse Change except for any changes or events that are disclosed in Quarterly
Reports on Form 10-Q and Current Reports on Form 8-K that have been filed by the Company
with the Securities and Exchange Commission prior to the date hereof.




     (f) There is no pending or, to the knowledge of the Company, threatened action, suit,
investigation, litigation or proceeding, including, without limitation, any Environmental
Action, affecting the Company or any of its Subsidiaries before any court, governmental
agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect
or (ii) purports to affect the legality, validity or enforceability of this Agreement or any
Note.




     (g) No Borrower is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board
of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock. Following the application of the proceeds of each
Advance, no more than 25% of the value of the aggregate assets of each Borrower that are
subject to the restrictions of Section 5.02(a) or clause (c) of Section 5.02(b) will consist
of, or will be represented by, margin stock.



28









 






     (h) No Borrower is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act of 1940, as amended.




     (i) Neither the Information Memorandum nor any other information, exhibit or report
furnished by or on behalf of the Company or any other Loan Party to the Agent or any Lender
in connection with the negotiation and syndication of this Agreement or pursuant to the
terms of this Agreement contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements made therein, when taken as a whole,
not misleading in light of the circumstances in which such statements were made.




     (j) The Company and each Consolidated Subsidiary have filed all tax returns which were
required to be filed except where failure to do so could not reasonably be expected to have
a Material Adverse Effect, and paid all taxes shown thereon to be due, including interest
and penalties, or are contesting same in good faith and by proper proceedings and have
provided adequate reserves for payment thereof.




     (k) The Company and its Subsidiaries had good title to their respective properties and
assets, free and clear of all mortgages and encumbrances, except such as are permitted by
Section 5.02(a) and except covenants, restrictions, rights, easements and minor
irregularities in title which do not interfere with the occupation, use and enjoyment by the
Company or such Subsidiaries of such properties and assets in the normal course of business
as presently conducted or do not materially impair the value thereof for such business.




     (l) The Company and Cooper US has each met their minimum funding requirements under
ERISA with respect to all of their Plans and have not incurred any material liabilities to
the PBGC under ERISA in connection with any such Plan.



ARTICLE V




COVENANTS OF THE COMPANY




          SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain unpaid, any
Letter of Credit is outstanding or any Lender shall have any Commitment hereunder, the Company
will:





     (a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to
comply, in all material respects, with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, compliance with ERISA, Environmental Laws
and the Patriot Act.




     (b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges or levies imposed upon it or upon its property and
(ii) all lawful claims that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Company nor any of its Subsidiaries
shall be required to pay or discharge any such tax, assessment, charge or claim that is
being contested in good faith and by proper proceedings and as to which appropriate reserves
are being maintained, unless and until any Lien resulting therefrom attaches to its property
and becomes enforceable against its other creditors.




     (c) Maintenance of Insurance. Maintain, and cause each of its Significant
Subsidiaries to maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by companies
engaged in similar businesses and owning similar properties in the same general areas in
which the Company or such Significant Subsidiary operates; provided,
however, that the Company and its Significant Subsidiaries may self-insure to the
same extent as other companies engaged in similar businesses and owning similar properties
in the same general areas in



29









 







which the Company or such Significant Subsidiary operates and
to the extent consistent with prudent business practice.




     (d) Preservation of Corporate Existence, Etc. Preserve and maintain, and cause
each of its Subsidiaries to preserve and maintain, its corporate existence, rights (charter
and statutory) and franchises; provided, however, that the Company and its
Subsidiaries may consummate any merger, consolidation, reorganization, reincorporation,
conveyance, transfer, lease or other disposition permitted under Section 5.02(b) and
provided further that neither the Company nor any of its Subsidiaries shall
be required to preserve any right or franchise if the preservation thereof is no longer
desirable in the conduct of the business of the Company or such Subsidiary, as the case may
be, and the loss thereof is not disadvantageous in any material respect to the Company, such
Subsidiary or the Lenders.




     (e) Visitation Rights. At any reasonable time during customary business hours
and upon reasonable prior notice and from time to time, permit the Agent or any of the
Lenders or any agents or representatives thereof, to examine and make copies of and
abstracts from the records and books of account of, and visit the properties of, the Company
and any of its Subsidiaries, and to discuss the affairs, finances and accounts of the
Company and any of its Subsidiaries with any of their officers or directors and with their
independent certified public accountants; provided, that so long as no Event of Default is
continuing, such visits shall be limited to two times per fiscal year.




     (f) Keeping of Books. Keep, and cause each of its Subsidiaries to keep, proper
books of record and account, in which full and correct entries shall be made of all
financial transactions and the assets and business of the Company and each such Subsidiary
in accordance with generally accepted accounting principles in effect from time to time.




     (g) Maintenance of Properties, Etc. Maintain and preserve, and cause each of
its Significant Subsidiaries to maintain and preserve, all of its properties that are useful
and necessary in the conduct of its business in good working order and condition, ordinary
wear and tear excepted.




     (h) Transactions with Affiliates. Conduct, and cause each of its Subsidiaries
to conduct, all transactions otherwise permitted under this Agreement with any of their
Affiliates (other than any Affiliate that is a Loan Party) on terms that are fair and
reasonable and no less favorable to the Company or such
Subsidiary than it would obtain in a comparable arm’s-length transaction with a Person
not an Affiliate; provided that the foregoing shall not prohibit transactions
between or among the Company and any of its Subsidiaries that does not involve any other
Affiliate.




     (i) Reporting Requirements. Furnish to the Lenders:




     (i) as soon as available and in any event within five days after such
statements are due to be filed with the Securities and Exchange Commission for each
of the first three quarters of each fiscal year of the Company, the Consolidated
balance sheet of the Company and its Subsidiaries as of the end of such quarter and
Consolidated statements of income and cash flows of the Company and its Subsidiaries
for the period commencing at the end of the previous fiscal year and ending with the
end of such quarter, duly certified (subject to absence of year-end notes and to
normal year-end audit adjustments) by the chief financial officer or treasurer of
the Company as having been prepared in accordance with generally accepted accounting
principles and certificates of the chief financial officer or treasurer of the
Company as to compliance with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate compliance with
Section 5.03, provided that in the event of any change in generally accepted
accounting principles used in the preparation of such financial statements, the
Company shall also provide, if necessary for the determination of compliance with
Section 5.03, a statement of reconciliation conforming such financial statements to
GAAP;



30









 






     (ii) as soon as available and in any event within five days after such
statements are due to be filed with the Securities and Exchange Commission for each
fiscal year of the Company, a copy of the annual audit report for such year for the
Company and its Subsidiaries, containing the Consolidated balance sheet of the
Company and its Subsidiaries as of the end of such fiscal year and Consolidated
statements of income and cash flows of the Company and its Subsidiaries for such
fiscal year, in each case accompanied by an opinion of the Company’s independent
public accountants, which opinion shall not be subject to (a) any “going concern” or
like qualification or exception or (b) any qualification or exception as to the
scope of the related audit, and certificates of the chief financial officer or
treasurer of the Company as to compliance with the terms of this Agreement and
setting forth in reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03, provided that in the event of any change in
generally accepted accounting principles used in the preparation of such financial
statements, the Company shall also provide, if necessary for the determination of
compliance with Section 5.03, a statement of reconciliation conforming such
financial statements to GAAP;




     (iii) as soon as possible and in any event within five days after becoming
aware of the occurrence of each Default continuing on the date of such statement, a
statement of the chief financial officer or treasurer of the Company setting forth
details of such Default and the action that the Company has taken and proposes to
take with respect thereto;




     (iv) promptly after the sending or filing thereof, copies of all financial
statements, reports and proxy statements that the Company sends to any of its
securityholders, and copies of all reports and registration statements that the
Company or any Subsidiary files with the Securities and Exchange Commission;




     (v) promptly after the commencement thereof, notice of all actions and
proceedings before any court, governmental agency or arbitrator affecting the
Company or any of its Subsidiaries of the type described in Section 4.01(f); and




     (vi) such other information respecting the Company or any of its Subsidiaries
as any Lender through the Agent may from time to time reasonably request.



          The financial statements and reports described in paragraphs (i), (ii), (iv) and (v) of this
Section 5.01(h) will be deemed to have been delivered hereunder if posted on the Company’s website
at www.cooperindustries.com or publicly available on the Securities and Exchange
Commission’s EDGAR Database no later than the date specified for delivery of same in paragraphs
(i), (ii), (iv) and (v) of this Section 5.01(h), as applicable.




          SECTION 5.02. Negative Covenants. So long as any Advance shall remain unpaid, any
Letter of Credit is outstanding or any Lender shall have any Commitment hereunder, the Company will
not:





     (a) Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries
to create or suffer to exist, any Lien on or with respect to any of its properties, whether
now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:




     (i) Permitted Liens,




     (ii) purchase money Liens upon or in any real property or equipment acquired or
held by the Company or any Subsidiary in the ordinary course of business to secure
the purchase price of such property or equipment or to secure Debt incurred solely
for the purpose of financing the acquisition of such property or equipment, or Liens
existing on such property or equipment at the time of its acquisition (other than
any such Liens created in contemplation of such acquisition that were not incurred
to finance the acquisition of such property) or extensions, renewals or replacements
of any of the foregoing for the same or a lesser amount, provided,
however,
that no



31









 







such Lien shall extend to or cover any properties of any
character other than the real property or equipment being acquired, and no such
extension, renewal or replacement shall extend to or cover any properties not
theretofore subject to the Lien being extended, renewed or replaced,




     (iii) the Liens securing Debt and obligations in respect of Hedge Agreements
existing on the Effective Date, which Liens in principal amount (or, in the case of
any Hedge Agreement, Agreement Value) in excess of $10,000,000 are described on
Schedule 5.02(a) hereto,




     (iv) Liens on property of a Person existing at the time such Person is merged
into or consolidated with the Company or any Subsidiary of the Company or becomes a
Subsidiary of the Company; provided that such Liens were not created in
contemplation of such merger, consolidation or acquisition and do not extend to any
assets other than those of the Person so merged into or consolidated with the
Company or such Subsidiary or acquired by the Company or such Subsidiary,




     (v) other Liens securing Debt and obligations in respect of Hedge Agreements in
an aggregate principal amount (and, in the case of any Hedge Agreement, Agreement
Value) not to exceed $250,000,000 at any time outstanding,




     (vi) Liens securing Debt incurred solely for the purpose of financing the
acquisition of all or substantially all of the assets or stock of another Person;
provided that on a pro forma basis after giving effect to any such acquisition, the
Company shall be in compliance with the covenants set forth in Section 5.03;
provided, further that no such Lien shall extend to or cover
properties other than the assets or stock (as applicable) being acquired in
connection with such acquisition,




     (vii) Liens incurred in connection with sales of accounts receivable to factors
or other third parties in the ordinary course of business for purposes of
collection,




     (viii) Liens in favor of the United States of America or any state thereof or
any department, agency, instrumentality or political subdivision of any such
jurisdiction to secure
partial, progress, advance or other payments pursuant to any contract or
statute, or to secure any Debt payable to the foregoing incurred for the purpose of
financing or refinancing all or any part of the purchase price or cost of
constructing or improving the property subject to such interests, including without
limitation interests to secure Debt in respect of any pollution control, industrial
revenue bond or similar type of financing, and




     (ix) the replacement, extension or renewal of any Lien permitted by
clause (iii) or (iv) above upon or in the same property theretofore subject thereto
or the replacement, extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt and obligations in respect of Hedge
Agreements, as applicable, secured thereby.




     (b) Mergers, Etc. Merge or consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of transactions)
all or a substantial part of its assets (whether now owned or hereafter acquired) to, any
Person, or permit any of its Subsidiaries to do so, except that (a) any Subsidiary of the
Company may merge into, consolidate with or dispose of assets to the Company or any other
Subsidiary of the Company; provided that if a Loan Party disposes of substantially all of
its assets to a Subsidiary that is not a Loan Party, the Subsidiary that is the transferee
of such assets shall expressly assume the obligations of the Loan Party hereunder, (b) the
Company may merge with any other Person so long as the Company is the surviving Person, (c)
the Company or any Subsidiary may sell, lease, transfer or otherwise dispose of assets in a
transaction (including a transfer of assets through a merger or consolidation) with any
other Person that is not a Subsidiary, if the assets so disposed contributed less than 15%
of Operating Earnings for the fiscal year then most recently ended, (d) a Person that is not
a Subsidiary may be merged into or consolidated with the Company or any Subsidiary and (e)
the Company



32









 







may consummate the Irish Reorganization so long as the entity remaining as a
result of the Irish Reorganization expressly assumes all obligations of the Company under
this Agreement pursuant to an assignment and assumption agreement in form and substance
reasonably satisfactory to the Agent, and in connection therewith shall deliver to the Agent
such legal opinions, certificates and other documents as the Agent may reasonably request
(and the Agent shall promptly distribute such opinions, certificates and documents to the
Lenders); provided, in each case, that no Default shall have occurred and be
continuing at the time of such proposed transaction or would result therefrom.




     (c) Change in Nature of Business. Make, or permit any of its Significant
Subsidiaries, taken as a whole, to make, any material change in the nature of its businesses
as carried on at the date hereof.



          SECTION 5.03. Financial Covenants. So long as any Advance shall remain unpaid, any
Letter of Credit is outstanding or any Lender shall have any Commitment hereunder, the Company will
as of the last day of each fiscal quarter of the Company:





     (a) Total Capitalization. Maintain a ratio of Consolidated Debt to the sum of
Consolidated Debt plus Consolidated net worth of not greater than 0.60 : 1.00.




     (b) Interest Coverage Ratio. Maintain a ratio of Consolidated EBITDA of the
Company and its Subsidiaries to interest payable on, and amortization of debt discount in
respect of, all Debt of the Company and its Subsidiaries for or during each period of four
consecutive fiscal quarters of the Company ending on such date of not less than 3.00 : 1.00.



ARTICLE VI




EVENTS OF DEFAULT




          SECTION 6.01. Events of Default. If any of the following events (“Events of
Default”) shall occur and be continuing:





     (a) Any Borrower shall fail to pay any principal of any Advance when the same becomes
due and payable; or any Borrower shall fail to pay any interest on any Advance or make any
other payment of fees or other amounts payable under this Agreement or any Note within three
Business Days after the same becomes due and payable; or




     (b) Any representation or warranty made by any Borrower herein or by any Borrower (or
any of its officers) in connection with this Agreement shall prove to have been incorrect in
any material respect when made or deemed made; or




     (c) (i) The Company shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(d) (with respect to maintenance of existence), (h) or (i)(iii),
5.02 or 5.03 or (ii) any Loan Party shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement on its part to be performed or observed if
such failure shall remain unremedied for 30 days after written notice thereof shall have
been given to the Company by the Agent or any Lender; or




     (d) The Company or any of its Subsidiaries shall fail to pay any principal of or
premium or interest on any Debt or any obligation in respect of any Hedge Agreement that is
outstanding in a principal amount (or, in the case of any Hedge Agreement, an Agreement
Value) of at least $50,000,000 in the aggregate (but excluding Debt outstanding hereunder)
of the Company or such Subsidiary (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument



33









 







relating to such Debt or obligation in respect of
such Hedge Agreement; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt or obligation in respect of such Hedge
Agreement and shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to accelerate the
maturity of such Debt or obligation in respect of such Hedge Agreement; or any such Debt or
obligation in respect of such Hedge Agreement shall be declared to be due and payable, or
required to be prepaid or redeemed (other than by a regularly scheduled required prepayment
or redemption, or any prepayment or redemption from the proceeds of equity or debt
issuances, condemnation and similar awards. insurance proceeds or from cash flow), purchased
or defeased, or an offer to prepay, redeem, purchase or defease such Debt or obligation in
respect of such Hedge Agreement shall be required to be made, in each case prior to the
stated maturity thereof; or




     (e) Any Loan Party or any Significant Subsidiary shall generally not pay its debts as
such debts become due, or shall admit in writing its inability to pay its debts generally,
or shall make a general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Loan Party or any Significant Subsidiary seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or any Loan Party or any Significant
Subsidiary shall take any corporate action to authorize any of the actions set forth above
in this subsection (e); or




     (f) Judgments or orders for the payment of money in excess of $50,000,000 in the
aggregate shall be rendered against the Company or any of its Subsidiaries and either
(i) enforcement proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect; provided, however, that any such judgment or order shall not
be an Event of Default under this Section 6.01(f) if and for so long as (i) the amount of
such judgment or order is covered by a valid and binding policy of insurance between the
defendant and the insurer covering
payment thereof and (ii) such insurer, which shall be rated at least “A” by A.M. Best
Company, has been notified of, and has not disputed the claim made for payment of, the
amount of such judgment or order; or




     (g) (i) Any Person or two or more Persons acting in concert shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or indirectly, of Voting
Stock of the Company (or other securities convertible into such Voting Stock) representing
40% or more of the combined voting power of all Voting Stock of the Company, other than
pursuant to the Irish Reorganization; or (ii) during any period of up to 24 consecutive
months, commencing after the date of this Agreement, individuals who at the beginning of
such 24-month period were directors of the Company shall cease for any reason (other than
due to death, retirement or disability) to constitute a majority of the board of directors
of the Company (except to the extent that individuals who at the beginning of such 24-month
period were replaced by individuals (x) elected by 66-2/3% of the remaining members of the
board of directors of the Company or (y) nominated for election by a majority of the
remaining members of the board of directors of the Company and thereafter elected as
directors by the shareholders of the Company; or (iii) except pursuant to a transaction that
is permitted by clause (a) of Section 5.02(b), Cooper US shall for any reason cease to be a
wholly owned Subsidiary of the Company; or




     (i) (i) The occurrence of any ERISA Event, (ii) the partial or complete withdrawal of
Cooper US or any of its ERISA Affiliates from a Multiemployer Plan, or (iii) the
reorganization or termination of a Multiemployer Plan, which event or condition, together
with all other such events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect.



34









 






     (j) any provision of Article VII shall for any reason cease to be valid and binding on
or enforceable against any Loan Party, or any Loan Party shall so state in writing;


then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrowers, declare the obligation of each Lender to make
Advances (other than Advances to be made by an Issuing Bank or a Lender pursuant to Section
2.03(c)) and of the Issuing Banks to issue Letters of Credit to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the consent, of the Required
Lenders, by notice to the Borrowers, declare the Advances, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon the Advances, all
such interest and all such amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are hereby expressly
waived by each Borrower; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to any Borrower under the Federal Bankruptcy Code,
(A) the obligation of each Lender to make Advances (other than Advances to be made by an Issuing
Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing Banks to issue Letters of Credit
shall automatically be terminated and (B) the Advances, all such interest and all such amounts
shall automatically become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by each Borrower.




          SECTION 6.02. Actions in Respect of the Letters of Credit upon Default. If any Event
of Default shall have occurred and be continuing, the Agent may with the consent, or shall at the
request, of the Required Lenders, irrespective of whether it is taking any of the actions described
in Section 6.01 or otherwise, make demand upon the Borrowers to, and forthwith upon such demand the
Borrowers will, (a) pay to the Agent on behalf of the Lenders in same day funds at the Agent’s
office designated in such demand, for deposit in the L/C Cash Collateral Account, an amount equal
to the aggregate Available Amount of all Letters of Credit then outstanding or (b) make such other
arrangements in respect of the outstanding Letters of Credit as shall be acceptable to the Required
Lenders and not more disadvantageous to the Borrowers than clause (a); provided,
however, that in the event of an actual or deemed entry of an order for relief with respect
to any Borrower under the Federal Bankruptcy Code, an amount equal to the aggregate Available
Amount of all outstanding Letters of Credit shall be immediately due and payable to the Agent for
the account of the Lenders without notice to or demand upon the Borrowers, which are expressly
waived by each Borrower, to be held in the L/C Cash Collateral Account. If at any time an Event of
Default is continuing the Agent determines that any funds held in the L/C Cash Collateral Account
are subject to any right or claim of any Person
other than the Agent and the Lenders or that the total amount of such funds is less than the
aggregate Available Amount of all Letters of Credit, the Borrowers will, forthwith upon demand by
the Agent, pay to the Agent, as additional funds to be deposited and held in the L/C Cash
Collateral Account, an amount equal to the excess of (a) such aggregate Available Amount over (b)
the total amount of funds, if any, then held in the L/C Cash Collateral Account that the Agent
determines to be free and clear of any such right and claim. Upon the drawing of any Letter of
Credit, to the extent funds are on deposit in the L/C Cash Collateral Account, such funds shall be
applied to reimburse the Issuing Banks to the extent permitted by applicable law. After all such
Letters of Credit shall have expired or been fully drawn upon and all other obligations of the
Borrowers hereunder and under the Notes shall have been paid in full or if no Event of Default is
continuing at any time, the balance, if any, in such L/C Cash Collateral Account shall be returned
to the Borrowers.




ARTICLE VII




GUARANTY




          SECTION 7.01. Unconditional Guaranty; Limitation of Liability. (a) Each Loan Party
hereby absolutely, unconditionally and irrevocably jointly and severally guarantees (as primary
obligor and not merely as surety) the punctual payment when due, whether at scheduled maturity or
on any date of a required prepayment or by acceleration, demand or otherwise, of all payment
obligations of each Borrower (or, in the case of a Loan Party that is a Borrower, each other
Borrower) now or hereafter existing under or in respect of this Agreement and the Notes (including,
without limitation, any extensions, modifications, substitutions, amendments or renewals of any or
all of the foregoing obligations), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premiums, fees, indemnities, costs, expenses or otherwise (such
obligations being the “Guaranteed Obligations”), and agrees to pay any and all expenses
(including, without limitation, fees and expenses of counsel)




35









 




incurred by the Agent or any Lender
in enforcing any rights under this Agreement. Without limiting the generality of the foregoing,
each Loan Party’s liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by any Borrower to the Agent or any Lender under or in respect of
this Agreement and the Notes but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving such Borrower.




          (b) Each Subsidiary Guarantor, and by its acceptance of this Guaranty, the Agent and each
Lender, hereby confirms that it is the intention of all such Persons that this Guaranty and the
obligations of each Subsidiary Guarantor hereunder not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to
this Guaranty and the obligations of each Subsidiary Guarantor hereunder. To effectuate the
foregoing intention, the Agent, the Lenders and the Loan Parties hereby irrevocably agree that the
obligations of each Subsidiary Guarantor under this Guaranty at any time shall be limited to the
maximum amount as will result in the obligations of such Subsidiary Guarantor under this Guaranty
not constituting a fraudulent transfer or conveyance.




          (c) Each Loan Party hereby unconditionally and irrevocably agrees that in the event any
payment shall be required to be made to the Agent or any Lender under this Guaranty or any other
guaranty, such Guarantor will contribute, to the maximum extent permitted by law, such amounts to
each other Loan Party and each other guarantor so as to maximize the aggregate amount paid to the
Agent and the Lenders under or in respect of this Agreement and the Notes.




          SECTION 7.02. Guaranty Absolute. (a) Each Loan Party guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of this Agreement and the Notes,
regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting
any of such terms or the rights of the Agent or any Lender with respect thereto. The obligations
of each Loan Party under or in respect of this Guaranty are independent of the Guaranteed
Obligations or any other obligations of any Borrower under or in respect of this Agreement and the
Notes, and a separate action or actions may be brought and prosecuted against any Loan Party to
enforce this Guaranty, irrespective of whether any action is brought against any Borrower or
whether any Borrower is joined in any such action or actions. The liability of each Loan Party
under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and the each
Loan Party hereby irrevocably waives any defenses it may now have or hereafter acquire in any
way relating to, any or all of the following:





     (a) any lack of validity or enforceability of this Agreement, any Note or any agreement
or instrument relating thereto;




     (b) any change in the time, manner or place of payment of, or in any other term of, all
or any of the Guaranteed Obligations or any other obligations of any Borrower under or in
respect of this Agreement and the Notes, or any other amendment or waiver of or any consent
to departure from this Agreement or any Note, including, without limitation, any increase in
the Guaranteed Obligations resulting from the extension of additional credit to any Borrower
or any of its Subsidiaries or otherwise;




     (c) any taking, exchange, release or non-perfection of any collateral, or any taking,
release or amendment or waiver of, or consent to departure from, any other guaranty, for all
or any of the Guaranteed Obligations;




     (d) any manner of application of any collateral, or proceeds thereof, to all or any of
the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for
all or any of the Guaranteed Obligations or any other obligations of any Borrower under this
Agreement and the Notes or any other assets of any Borrower or any of its Subsidiaries;




     (e) any change, restructuring or termination of the corporate structure or existence of
any Borrower or any of its Subsidiaries;



36









 






     (f) any failure of the Agent or any Lender to disclose to such Loan Party any
information relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any Borrower now or hereafter known to the Agent or
such Lender (such Loan Party waiving any duty on the part of the Agent and the Lenders to
disclose such information);




     (g) the failure of any other Person to execute or deliver this Guaranty or any other
guaranty or agreement or the release or reduction of liability of any Loan Party or other
guarantor or surety with respect to the Guaranteed Obligations; or




     (h) any other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by the Agent or any Lender that might
otherwise constitute a defense available to, or a discharge of, any Borrower or any other
guarantor or surety.


This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by the
Agent or any Lender or any other Person upon the insolvency, bankruptcy or reorganization of any
Borrower or otherwise, all as though such payment had not been made.




          SECTION 7.03. Waivers and Acknowledgments. (a) Each Loan Party hereby
unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment,
demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and
any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that the Agent or any Lender protect, secure, perfect or insure any Lien or any
property subject thereto or exhaust any right or take any action against any Borrower or any other
Person or any collateral.





     (b) Each Loan Party hereby unconditionally and irrevocably waives any right to revoke
this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.




     (c) Each Loan Party hereby unconditionally and irrevocably waives (i) any defense
arising by reason of any claim or defense based upon an election of remedies by the Agent or
any Lender that in
any manner impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of such Loan Party or
other rights of such Loan Party to proceed against any Borrower, any other guarantor or any
other Person or any collateral and (ii) any defense based on any right of set-off or
counterclaim against or in respect of the obligations of such Loan Party hereunder.




     (d) Each Loan Party hereby unconditionally and irrevocably waives any duty on the part
of the Agent or any Lender to disclose to such Loan Party any matter, fact or thing relating
to the business, condition (financial or otherwise), operations, performance, properties or
prospects of any Borrower or any of its Subsidiaries now or hereafter known by the Agent or
such Lender.




     (e) Each Loan Party acknowledges that it will receive substantial direct and indirect
benefits from the financing arrangements contemplated by this Agreement and the Notes and
that the waivers set forth in Section 7.02 and this Section 7.03 are knowingly made in
contemplation of such benefits.



          SECTION 7.04. Subrogation. Each Loan Party hereby unconditionally and irrevocably
agrees not to exercise any rights that it may now have or hereafter acquire against any Borrower or
any other insider guarantor that arise from the existence, payment, performance or enforcement of
such Loan Party’s obligations under or in respect of this Guaranty, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right
to participate in any claim or remedy of the Agent or any Lender against any Borrower or any other
insider guarantor or any collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the right to take or receive
from any Borrower or any other insider guarantor, directly or indirectly, in cash or other property
or by set-off or in any other manner, payment or security on account of such claim, remedy or
right, unless and until all of the


37









 







Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash, all Letters of Credit shall have expired or been
terminated and the Commitments shall have expired or been terminated. If any amount shall be paid
to any Loan Party in violation of the immediately preceding sentence at any time prior to the
latest of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty, (b) the latest Termination Date and (c) the latest date of expiration
or termination of all Letters of Credit, such amount shall be received and held in trust for the
benefit of the Agent and the Lenders, shall be segregated from other property and funds of such
Loan Party and shall forthwith be paid or delivered to the Agent in the same form as so received
(with any necessary endorsement or assignment) to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in
accordance with the terms of this Agreement and the Notes, or to be held as collateral for any
Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. If (i) any
Loan Party shall make payment to the Agent or any Lender of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash, (iii) the latest Termination Date shall have
occurred and (iv) all Letters of Credit shall have expired or been terminated, the Agent and the
Lenders will, at such Loan Party’s request and expense, execute and deliver to such Loan Party
appropriate documents, without recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to such Loan Party of an interest in the Guaranteed
Obligations resulting from such payment made by such Loan Party pursuant to this Guaranty.




          SECTION 7.05. Subordination. Each Loan Party hereby subordinates any and all debts,
liabilities and other obligations owed to such Loan Party by any Borrower (the “Subordinated
Obligations”) to the Guaranteed Obligations to the extent and in the manner hereinafter set
forth in this Section 7.05:





     (a) Prohibited Payments, Etc. Except during the continuance of an Event of
Default under (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to such Borrower), such Loan Party may receive regularly scheduled
payments from such Borrower on account of the Subordinated Obligations. After the
occurrence and during the continuance of any Event of Default (including the commencement
and continuation of any proceeding under any Bankruptcy Law relating to such Borrower),
however, unless the Required Lenders otherwise agree, such Loan Party shall not demand,
accept or take any action to collect any payment on account of the Subordinated Obligations.




     (b) Prior Payment of Guaranteed Obligations. In any proceeding under any
Bankruptcy Law relating to such Borrower, such Loan Party agrees that the Agent and the
Lenders shall be entitled to receive payment in full in cash of all Guaranteed Obligations
(including all interest and expenses accruing after the commencement of a proceeding under
any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding
(“Post Petition Interest”)) before such Loan Party receives payment of any
Subordinated Obligations.




     (c) Turn-Over. After the occurrence and during the continuance of any Event of
Default (including the commencement and continuation of any proceeding under any Bankruptcy
Law relating to such Borrower), such Loan Party shall, if the Agent so requests, collect,
enforce and receive payments on account of the Subordinated Obligations as trustee for the
Agent and the Lenders and deliver such payments to the Agent on account of the Guaranteed
Obligations (including all Post Petition Interest), together with any necessary endorsements
or other instruments of transfer, but without reducing or affecting in any manner the
liability of such Loan Party under the other provisions of this Guaranty.




     (d) Agent Authorization. After the occurrence and during the continuance of
any Event of Default (including the commencement and continuation of any proceeding under
any Bankruptcy Law relating to such Borrower), the Agent is authorized and empowered (but
without any obligation to so do), in its discretion, (i) in the name of such Loan Party, to
collect and enforce, and to submit claims in respect of, Subordinated Obligations and to
apply any amounts received thereon to the Guaranteed Obligations (including any and all Post
Petition Interest), and (ii) to require such Loan Party (A) to collect and enforce, and to
submit claims in respect of, Subordinated Obligations and (B) to pay any amounts received on
such obligations to the Agent for application to the Guaranteed Obligations (including any
and all Post Petition Interest).



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          SECTION 7.06. Continuing Guaranty; Assignments. This Guaranty is a continuing
guaranty and a guaranty of payment (not merely of collection) and shall (a) remain in full force
and effect until the latest of (i) the irrevocable payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (ii) the latest Termination Date and
(iii) the latest date of expiration or termination of all Letters of Credit, (b) be binding upon
each Loan Party, its successors and assigns and (c) inure to the benefit of and be enforceable by
the Agent and the Lenders and their successors, transferees and assigns. Upon the sale, transfer
or other disposition of a Subsidiary Guarantor or all or substantially all of the assets of any
Subsidiary Guarantor to the extent permitted in accordance with the terms hereof or upon such
Guarantor otherwise ceasing to be a Subsidiary of the Company organized under the laws of a state
of the United States of America without violation of the terms of this Agreement, such Subsidiary
Guarantor shall be automatically released from this Guaranty. Without limiting the generality of
clause (c) of the immediately preceding sentence, the Agent or any Lender may assign or otherwise
transfer all or any portion of its rights and obligations under this Agreement (including, without
limitation, all or any portion of its Commitments, the Advances owing to it and the Note or Notes
held by it) to any other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to the Agent or such Lender herein or otherwise, in each case
as and to the extent provided in Section 9.07.




ARTICLE VIII




THE AGENT




          SECTION 8.01. Authorization and Authority. Each Lender hereby irrevocably appoints
Citibank to act on its behalf as the Agent hereunder and under the Notes and authorizes the Agent
to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the
terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the Agent and the Lenders,
and neither the Company nor any other Loan Party shall have rights as a third party beneficiary of
any of such provisions.




          SECTION 8.02. Agent Individually. (a) The Person serving as the Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the Company or any
Subsidiary or other Affiliate thereof as if such Person were not the Agent hereunder and without
any duty to account therefor to the Lenders.




          (b) Each Lender understands that the Person serving as Agent, acting in its individual
capacity, and its Affiliates (collectively, the “Agent’s Group”) are engaged in a wide
range of financial services and businesses (including investment management, financing, securities
trading, corporate and investment banking and research) (such services and businesses are
collectively referred to in this Section 8.02 as “Activities”) and may engage in the
Activities with or on behalf of one or more of the Loan Parties or their respective Affiliates.
Furthermore, the Agent’s Group may, in undertaking the Activities, engage in trading in financial
products or undertake other investment businesses for its own account or on behalf of others
(including the Loan Parties and their Affiliates and including holding, for its own account or on
behalf of others, equity, debt and similar positions in any Loan Party or their respective
Affiliates), including trading in or holding long, short or derivative positions in securities,
loans or other financial products of one or more of the Loan Parties or their Affiliates. Each
Lender understands and agrees that in engaging in the Activities, the Agent’s Group may receive or
otherwise obtain information concerning the Loan Parties or their Affiliates (including information
concerning the ability of the Loan Parties to perform their respective obligations hereunder) which
information may not be available to any of the Lenders that are not members of the Agent’s Group.
None of the Agent nor any member of the Agent’s Group shall have any duty to disclose to any Lender
or use on behalf of the Lenders, and shall not be liable for the failure to so disclose or use, any
information whatsoever about or derived from the Activities or otherwise (including any information
concerning the business, prospects, operations, property, financial and other condition or
creditworthiness of any Loan Party or any Affiliate thereof) or to account for any revenue or
profits obtained in connection with the Activities, except that the Agent shall deliver or
otherwise make available to each Lender such documents as are expressly required by this Agreement
to be transmitted by the Agent to the Lenders.




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          (c) Each Lender further understands that there may be situations where members of the Agent’s
Group or their respective customers (including the Loan Parties and their Affiliates) either now
have or may in the future have interests or take actions that may conflict with the interests of
any one or more of the Lenders (including the interests of the Lenders hereunder). Each Lender
agrees that no member of the Agent’s Group is or shall be required to restrict its activities as a
result of the Person serving as Agent being a member of the Agent’s Group, and that each member of
the Agent’s Group may undertake any Activities without further consultation with or notification to
any Lender. None of (i) this Agreement, (ii) the receipt by the Agent’s Group of information
(including Information) concerning the Loan Parties or their Affiliates (including information
concerning the ability of the Loan Parties to perform their respective obligations hereunder and
under the Notes) nor (iii) any other matter shall give rise to any fiduciary, equitable or
contractual duties (including without limitation any duty of trust or confidence) owing by the
Agent or any member of the Agent’s Group to any Lender including any such duty that would prevent
or restrict the Agent’s Group from acting on behalf of customers (including the Loan Parties or
their Affiliates) or for its own account.




          SECTION 8.03. Duties of Agent; Exculpatory Provisions. (a) The Agent’s duties
hereunder are solely ministerial and administrative in nature and the Agent shall not have any
duties or obligations except those expressly set forth herein. Without limiting the generality of
the foregoing, the Agent shall not have any duty to take any discretionary action or exercise any
discretionary powers, but shall be required to act or refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the written direction of the Required
Lenders (or such other number or percentage of the Lenders as shall be expressly provided for
herein), provided that the Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Agent or any of its Affiliates to liability
or that is contrary to this Agreement or applicable law.




          (b) The Agent shall not be liable for any action taken or not taken by it (i) with the consent
or at the request of the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary, or as the Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 9.01 or 6.01) or (ii) in the absence of its own gross
negligence or willful misconduct. The Agent shall be deemed not to
have knowledge of any Default or the event or events that give or may give rise to any Default
unless and until the Company or any Lender shall have given notice to the Agent describing such
Default and such event or events.




          (c) Neither the Agent nor any member of the Agent’s Group shall be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty, representation or other information
made or supplied in or in connection with this Agreement or the Information Memorandum, (ii) the
contents of any certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith or the adequacy, accuracy and/or completeness of the information
contained therein, (iii) the performance or observance of any of the covenants, agreements or other
terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement,
instrument or document or the perfection or priority of any Lien or security interest created or
purported to be created hereby or (v) the satisfaction of any condition set forth in Article III or
elsewhere herein, other than (but subject to the foregoing clause (ii)) to confirm receipt of items
expressly required to be delivered to the Agent.




          (d) Nothing in this Agreement shall require the Agent or any of its Related Parties to carry
out any “know your customer” or other checks in relation to any person on behalf of any Lender and
each Lender confirms to the Agent that it is solely responsible for any such checks it is required
to carry out and that it may not rely on any statement in relation to such checks made by the Agent
or any of its Related Parties.




          SECTION 8.04. Reliance by Agent. The Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message, Internet or intranet
website posting or other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person. The Agent also may rely upon any statement made
to it orally or by telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any condition
hereunder to the making of an Advance, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender, the Agent may presume that such condition is
satisfactory to such Lender unless an officer of the Agent responsible for the transactions
contemplated hereby shall have received notice to the contrary from such Lender prior to the making
of such Advance or the issuance of such Letter of Credit, and in the case of a Borrowing, such


40









 







Lender shall not have made available to the Agent such Lender’s ratable portion of such Borrowing.
The Agent may consult with legal counsel (who may be counsel for the Company or any other Loan
Party), independent accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such counsel, accountants or
experts.




          SECTION 8.05. Delegation of Duties. The Agent may perform any and all of its duties
and exercise its rights and powers hereunder by or through any one or more sub-agents appointed by
the Agent. The Agent and any such sub-agent may perform any and all of its duties and exercise its
rights and powers by or through their respective Related Parties. Each such sub-agent and the
Related Parties of the Agent and each such sub-agent shall be entitled to the benefits of all
provisions of this Article VIII and Section 9.04 (as though such sub-agents were the “Agent”) as if
set forth in full herein with respect thereto.




          SECTION 8.06. Resignation of Agent. (a) The Agent may at any time give notice of its
resignation to the Lenders and the Company. Upon receipt of any such notice of resignation, the
Required Lenders shall have the right, in consultation with the Company, to appoint a successor,
which shall be a bank with an office in New York, New York, or an Affiliate of any such bank with
an office in New York, New York. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation (such 30-day period, the “Lender Appointment Period”), then the
retiring Agent may on behalf of the Lenders, appoint a successor Agent meeting the qualifications
set forth above. In addition and without any obligation on the part of the retiring Agent to
appoint, on behalf of the Lenders, a successor Agent, the retiring Agent may at any time upon or
after the end of the Lender Appointment Period notify the Company and the Lenders that no
qualifying Person has accepted appointment as successor Agent and the effective date of such
retiring Agent’s resignation. Upon the resignation effective date established in such notice and
regardless of whether a successor Agent has been appointed and accepted such appointment, the
retiring Agent’s resignation shall nonetheless become effective and (i) the retiring Agent shall be
discharged from its duties and obligations as Agent hereunder and (ii) all payments, communications
and determinations provided to be made by, to or through the Agent shall instead be made by or to
each Lender directly, until such time as the Required Lenders appoint a successor Agent as
provided for above in this paragraph. Upon the acceptance of a successor’s appointment as Agent
hereunder, such successor shall succeed to and become vested with all of the rights, powers,
privileges and duties as Agent of the retiring (or retired) Agent, and the retiring Agent shall be
discharged from all of its duties and obligations as Agent hereunder (if not already discharged
therefrom as provided above in this paragraph). The fees payable by the Company to a successor
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Company and such successor. After the retiring Agent’s resignation hereunder, the provisions of
this Article and Section 9.04 shall continue in effect for the benefit of such retiring Agent, its
sub-agents and their respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Agent was acting as Agent.




          (b) Any resignation pursuant to this Section by a Person acting as Agent shall, unless such
Person shall notify the Company and the Lenders otherwise, also act to relieve such Person and its
Affiliates of any obligation to advance or issue new, or extend existing, Letters of Credit where
such issuance or extension is to occur on or after the effective date of such resignation. Upon
the acceptance of a successor’s appointment as Agent hereunder, (i) such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring Issuing
Bank and (ii) the retiring Issuing Bank shall be discharged from all of their respective duties and
obligations hereunder.




          SECTION 8.07. Non-Reliance on Agent and Other Lenders. (a) Each Lender confirms to
the Agent, each other Lender and each of their respective Related Parties that it (i) possesses
(individually or through its Related Parties) such knowledge and experience in financial and
business matters that it is capable, without reliance on the Agent, any other Lender or any of
their respective Related Parties, of evaluating the merits and risks (including tax, legal,
regulatory, credit, accounting and other financial matters) of (x) entering into this Agreement,
(y) making Advances and other extensions of credit hereunder and (z) in taking or not taking
actions hereunder and thereunder, (ii) is financially able to bear such risks and (iii) has
determined that entering into this Agreement and making Advances and other extensions of credit
hereunder is suitable and appropriate for it.




          (b) Each Lender acknowledges that (i) it is solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection with this Agreement, (ii)
that it


41









 







has, independently and without reliance upon the Agent, any other Lender or any of their
respective Related Parties, made its own appraisal and investigation of all risks associated with,
and its own credit analysis and decision to enter into, this Agreement based on such documents and
information, as it has deemed appropriate and (iii) it will, independently and without reliance
upon the Agent, any other Lender or any of their respective Related Parties, continue to be solely
responsible for making its own appraisal and investigation of all risks arising under or in
connection with, and its own credit analysis and decision to take or not take action under, this
Agreement based on such documents and information as it shall from time to time deem appropriate,
which may include, in each case:





     (i) the financial condition, status and capitalization of the Company and each other
Loan Party;




     (ii) the legality, validity, effectiveness, adequacy or enforceability of this
Agreement and any other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with this Agreement;




     (iii) determining compliance or non-compliance with any condition hereunder to the
making of an Advance, or the issuance of a Letter of Credit and the form and substance of
all evidence delivered in connection with establishing the satisfaction of each such
condition;




     (iv) the adequacy, accuracy and/or completeness of the Information Memorandum and any
other information delivered by the Agent, any other Lender or by any of their respective
Related Parties under or in connection with this Agreement, the transactions contemplated
hereby and thereby or any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with this Agreement.



          SECTION 8.08. No Other Duties, etc. Anything herein to the contrary notwithstanding,
none of the Persons acting as Bookrunners, Arrangers or Syndication Agent listed on the cover page
hereof shall have any powers, duties or responsibilities under this Agreement, except in its
capacity, as applicable, as the Agent or as a Lender hereunder.




ARTICLE IX




MISCELLANEOUS




          SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision of this
Agreement or the Notes, nor consent to any departure by any Loan Party therefrom, shall in any
event be effective unless the same shall be in writing and signed by the Required Lenders, and then
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders, do any of the following: (a) waive any of
the conditions specified in Section 3.01, (b) increase the Commitments of the Lenders other than in
accordance with Section 2.18, (c) reduce the principal of, or interest on, the Advances or any fees
or other amounts payable hereunder, (d) postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable hereunder other than in accordance
with Section 2.19, (e) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Advances, or the number of Lenders, that shall be required for the Lenders
or any of them to take any action hereunder, (f) release any Loan Party from any of its obligations
under Section 7.01 or (g) amend this Section 9.01; and provided further that (x) no
amendment, waiver or consent shall, unless in writing and signed by the Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the Agent under this
Agreement or any Note and (y) no amendment, waiver or consent shall, unless in writing and signed
by the Issuing Banks in addition to the Lenders required above to take such action, adversely
affect the rights or obligations of the Issuing Banks in their capacities as such under this
Agreement.




          SECTION 9.02. Notices, Etc. (a) All notices and other communications provided for
hereunder shall be either (x) in writing (including telecopier communication) and mailed,
telecopied or delivered or (y) as and to the extent set forth in Section 9.02(b) and in the proviso
to this Section 9.02(a), if to the Company or any other Loan Party, at the Company’s address at 600
Travis Street, Suite 5600, Houston, TX 77002, Attention: Treasurer; if


42









 







to any Initial Lender, at
its Domestic Lending Office specified opposite its name on Schedule I hereto; if to any other
Lender, at its Domestic Lending Office specified in the Assumption Agreement or the Assignment and
Acceptance pursuant to which it became a Lender; and if to the Agent, at its address at Two Penns
Way, New Castle, Delaware 19720, Attention: Bank Loan Syndications Department; or, as to the
Company or the Agent, at such other address as shall be designated by such party in a written
notice to the other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Company and the Agent, provided that
materials required to be delivered pursuant to Section 5.01(i)(i), (ii) or (iv) shall be delivered
to the Agent as specified in Section 9.02(b) or as otherwise specified to any Borrower by the
Agent. All such notices and communications shall, when mailed, telecopied or e-mailed, be
effective when deposited in the mails, telecopied or confirmed by e-mail, respectively, except that
notices and communications to the Agent pursuant to Article II, III or VIII shall not be effective
until received by the Agent. Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto to be executed and
delivered hereunder shall be effective as delivery of a manually executed counterpart thereof.




          (b) So long as Citibank or any of its Affiliates is the Agent, materials required to be
delivered pursuant to Section 5.01(i)(i), (ii) and (iv) shall be delivered to the Agent in an
electronic medium in a format acceptable to the Agent and the Lenders by e-mail at
oploanswebadmin@citigroup.com. The Company agrees that the Agent may make such materials, as well
as any other written information, documents, instruments and other material relating to the
Company, any of its Subsidiaries or any other materials or matters relating to this Agreement, the
Notes or any of the transactions contemplated hereby (collectively, the “Communications”)
available to the Lenders by posting such notices on Intralinks or a substantially similar
electronic system (the “Platform”). The Company acknowledges that (i) the distribution of
material through an electronic medium is not necessarily secure and that there are confidentiality
and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as
available” and (iii) neither the Agent nor any of its Affiliates warrants the
accuracy, adequacy or completeness of the Communications or the Platform and each expressly
disclaims liability for errors or omissions in the Communications or the Platform. No warranty of
any kind, express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects, is made by the Agent or any of its Affiliates in
connection with the Platform.




          (c) Each Lender agrees that notice to it (as provided in the next sentence) (a
“Notice”) specifying that any Communications have been posted to the Platform shall
constitute effective delivery of such information, documents or other materials to such Lender for
purposes of this Agreement if received during the recipient’s normal business hours;
provided that if requested by any Lender the Agent shall deliver a copy of the
Communications to such Lender by email or telecopier. Each Lender agrees (i) to notify the Agent
in writing of such Lender’s e-mail address to which a Notice may be sent by electronic transmission
(including by electronic communication) on or before the date such Lender becomes a party to this
Agreement (and from time to time thereafter to ensure that the Agent has on record an effective
e-mail address for such Lender) and (ii) that any Notice may be sent to such e-mail address.




          SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender or the Agent
to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.




          SECTION 9.04. Costs and Expenses. (a) Cooper US agrees to pay on demand all
reasonable costs and expenses of the Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the Notes and the other documents to
be delivered hereunder, including, without limitation, (A) all due diligence, syndication
(including printing, distribution and bank meetings), transportation, computer and duplication
expenses and (B) the reasonable fees and expenses of counsel for the Agent with respect thereto and
with respect to advising the Agent as to its rights and responsibilities under this Agreement.
Cooper US further agrees to pay on demand all costs and expenses of the Agent and the Lenders, if
any (including, without limitation, reasonable counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement, the
Notes and the other documents to be delivered hereunder, including, without limitation, reasonable
fees and expenses of counsel for the Agent and each Lender in connection with the enforcement of
rights under this Section 9.04(a).





43









 








          (b) Cooper US agrees to indemnify and hold harmless the Agent and each Lender and each of
their Affiliates and their officers, directors, employees, agents and advisors (each, an
“Indemnified Party”) from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of or in connection
with or by reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith) (i) the Notes, this
Agreement, any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances or Letters of Credit or (ii) the actual or alleged presence of Hazardous
Materials on any property of the Company or any of its Subsidiaries or any Environmental Action
relating in any way to the Company or any of its Subsidiaries, except to the extent such claim,
damage, loss, liability or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful
misconduct. In the case of an investigation, litigation or other proceeding to which the indemnity
in this Section 9.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Company, its directors, equityholders or
creditors or an Indemnified Party or any other Person, whether or not any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated hereby are consummated.
Each Loan Party agrees not to assert any claim for special, indirect, consequential or punitive
damages against the Agent, any Lender, any of their Affiliates, or any of their respective
directors, officers, employees, attorneys and agents, on any theory of liability, arising out of or
otherwise relating to the Notes, this Agreement, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances.




          (c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made by
any Borrower to or for the account of a Lender (i) other than on the last day of the Interest
Period for such Advance, as a result of a payment or Conversion pursuant to Section 2.05(b), 2.08,
2.10 or 2.12, acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other
reason, or by an Eligible Assignee to a Lender other than on the last day of the Interest Period
for such Advance upon an assignment of rights and obligations under this Agreement pursuant to
Section 9.07 as a result of a demand by the Company pursuant to Section 9.07(a) or (ii) as a result
of a payment or Conversion pursuant to Section 2.08, 2.10 or 2.12, such Borrower shall, upon demand
by such Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses, costs or expenses
that it reasonably incurs as a result of such payment or Conversion, including, without limitation,
any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain
such Advance.




          (d) Without prejudice to the survival of any other agreement of the Borrowers hereunder, the
agreements and obligations of the Borrowers contained in Sections 2.11, 2.14 and 9.04 shall survive
the payment in full of principal, interest and all other amounts payable hereunder and under the
Notes.




          (e) Reimbursement by Lenders. Each Lender severally agrees to indemnify the Agent and
each Issuing Bank (in each case, to the extent not promptly reimbursed by the Borrowers and without
limiting their obligation to do so) from and against such Lender’s ratable share of any and all
losses, claims, damages, liabilities, obligations, penalties, actions, judgments, suits, costs,
disbursements and expenses, joint or several, of any kind or nature (including the reasonable fees,
charges and disbursements of any advisor or counsel for such Person) that may be imposed on,
incurred by, or asserted against the Agent or any Issuing Bank, as the case may be, in any way
relating to or arising out of this Agreement or any action taken or omitted by the Agent or any
Issuing Bank hereunder; provided, however, that no Lender shall be liable for any
portion of such losses, claims, damages, liabilities, obligations, penalties, actions, judgments,
suits, costs, disbursements or expenses resulting from the Agent’s or such Issuing Bank’s gross
negligence or willful misconduct as found in a final, non-appealable judgment by a court of
competent jurisdiction. Without limitation of the foregoing, each Lender agrees to reimburse the
Agent and each Issuing Bank for its ratable share of any costs and expenses (including, without
limitation, reasonable fees and expenses of counsel) payable by the Company under Section 9.04(a),
to the extent that the Agent or such Issuing Bank is not promptly reimbursed for such costs and
expenses by the Borrowers.




          SECTION 9.05. Right of Set-off. Upon either (a) the occurrence and during the
continuance of any Event of Default under Section 6.01(a) or 6.01(e) or (b) (i) the occurrence and
during the continuance of any other Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to




44









 




authorize the Agent to declare the Advances
due and payable pursuant to the provisions of Section 6.01, each Lender and each of its Affiliates
is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender or such Affiliate to or
for the credit or the account of the Company or any other Loan Party against any and all of the
obligations of the Company or any Borrower now or hereafter existing under this Agreement and the
Note held by such Lender, whether or not such Lender shall have made any demand under this
Agreement or such Note and although such obligations may be unmatured. Each Lender agrees promptly
to notify the Company or the applicable Loan Party after any such set-off and application,
provided that the failure to give such notice shall not affect the validity of such set-off
and application. The rights of each Lender and its Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of set-off) that such
Lender and its Affiliates may have.




          SECTION 9.06. Binding Effect. This Agreement shall become effective (other than
Section 2.01, which shall only become effective upon satisfaction of the conditions precedent set
forth in Section 3.01) when it shall have been executed by the Company, each other Loan Party and
the Agent and when the Agent shall have been notified by each Initial Lender that such Initial
Lender has executed it and thereafter shall be binding upon and inure to the benefit of the
Company, each other Loan Party, the Agent and each Lender and their respective successors and
assigns, except that neither the Company nor any other Borrower shall have the right to assign its
rights hereunder or any interest herein without the prior written consent of the Lenders, except
that upon the consummation of the Irish Reorganization, the Company shall assign its rights and
obligations hereunder to Cooper Industries, plc, a company incorporated under the laws of
Ireland, pursuant to an assignment and assumption agreement in form and substance reasonably
satisfactory to the Agent, and in connection therewith shall deliver to the Agent such legal
opinions, certificates and other documents as the Agent may reasonably request (and the Agent shall
promptly distribute such opinions, certificates and documents to the Lenders).




          SECTION 9.07. Assignments and Participations. (a) Each Lender may, and if demanded
by the Company (so long as no Default shall have occurred and be continuing and following a demand
by such Lender pursuant to Section 2.11 or 2.14 or upon such Lender becoming a Defaulting Lender)
upon at least five Business Days’ notice to such Lender and the Agent, will assign to one or more
Persons consented to by the Issuing Bank (which consent shall not be unreasonably withheld or
delayed) all or a portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Revolving Credit Commitment, its Unissued Letter of Credit
Commitment, the Advances owing to it, its participations in Letters of Credit and the Note or Notes
held by it); provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and obligations under this Agreement,
(ii) except in the case of an assignment to a Person that, immediately prior to such assignment,
was a Lender (or an Affiliate of a Lender) or an assignment of all of a Lender’s rights and
obligations under this Agreement, the amount of (x) the Revolving Credit Commitment of the
assigning Lender being assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) the Unissued Letter of
Credit Commitment of the assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to such assignment) shall
in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, in
each case, unless the Company and the Agent otherwise agree, (iii) each such assignment shall be to
an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Company
pursuant to this Section 9.07(a) shall be arranged by the Company after consultation with the Agent
and shall be either an assignment of all of the rights and obligations of the assigning Lender
under this Agreement or an assignment of a portion of such rights and obligations made concurrently
with another such assignment or other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Company pursuant to this Section 9.07(a) unless
and until such Lender shall have received one or more payments from either the Borrowers or one or
more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding
principal amount of the Advances owing to such Lender, together with accrued interest thereon to
the date of payment of such principal amount and all other amounts payable to such Lender under
this Agreement, and (vi) the parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note subject to such assignment and a processing and recordation fee of $3,500 payable by
the parties to each such assignment, provided, however, that in the case of each
assignment made as a result of a demand by the Company, such recordation fee shall be payable by
the Company except that no such recordation fee shall be payable in the


45









 







case of an assignment made
at the request of the Company to an Eligible Assignee that is an existing Lender. Upon such
execution, delivery, acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under
Sections 2.11, 2.14 and 9.04 to the extent any claim thereunder relates to an event arising prior
to such assignment) and be released from its obligations (other than its obligations under Section
9.04(e) to the extent any claim thereunder relates to an event arising prior to such assignment)
under this Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).




          (b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder
and the assignee thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created under or in

 connection with, this Agreement or any other instrument or document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or any other Loan Party or the performance or
observance by the Company or any other Loan Party of any of its obligations under this Agreement or
any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it
has received a copy of this Agreement, together with copies of the financial statements referred to
in Section 4.01 and such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee
will, independently and without reliance upon the Agent, such assigning Lender or any other Lender
and based on such documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms of this Agreement
are required to be performed by it as a Lender.




          (c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an
assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice thereof to the
Company.




          (d) The Agent shall maintain at its address referred to in Section 9.02 a copy of each
Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Advances owing to, each Lender from time to time (the “Register”).
The entries in the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Company or any Lender at any reasonable time and from time to time
upon reasonable prior notice.




          (e) Each Lender may sell participations to one or more banks or other entities (other than the
Company or any of its Affiliates) in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Commitment, the Advances
owing to it and any Note or Notes held by it); provided, however, that (i) such
Lender’s obligations under this Agreement (including, without limitation, its Commitment to the
Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii) such Lender shall remain
the holder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Agent and
the other Lenders shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations





46









 




under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any provision of this
Agreement or any Note, or any consent to any departure by the Company or any other Loan Party
therefrom, except to the extent that such amendment, waiver or consent would reduce the principal
of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any payment of principal of,
or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation.




          (f) Any Lender may, in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Company furnished to such Lender by or on
behalf of the Company; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the confidentiality of any
Information relating to the Company received by it from such Lender on terms no less restrictive
than those set forth in Section 9.08.




          (g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any
time create a security interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including, without limitation, any pledge or assignment to secure
obligations to a Federal Reserve Bank in accordance with Regulation A of the Board of Governors of
the Federal Reserve System, 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 party hereto.




          (h) Any Lender may, with notice to the Agent and the Company, fulfill its Commitment by
causing an Affiliate of such Lender to act as the Lender in respect of any Borrower (and such
Lender shall, to the extent of Advances made to and participations in Letters of Credit issued for
the account of such Borrower, be deemed for all purposes hereof to have pro tanto assigned such
Advances and participations to such Affiliate in compliance with the provisions of this Section
9.07.




          SECTION 9.08. Confidentiality. Each of the Agent, the Lenders and the Issuing Bank
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
managers, administrators, trustees, partners, directors, officers, employees, agents, advisors and
other representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it or its Affiliates (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any Note or any action or
proceeding relating to this Agreement or any Note or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or participant in, or any prospective assignee of or
participant in, any of its rights or obligations under this Agreement, (ii) any actual or
prospective party (or its managers, administrators, trustees, partners, directors, officers,
employees, agents, advisors and other representatives) to any swap, derivative or other transaction
under which payments are to be made by reference to the Company and its obligations, this Agreement
or payments hereunder, (iii) any rating agency, or (iv) the CUSIP Service Bureau or any similar
organization, (g) with the consent of the Company or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y) becomes available to
the Agent, any Lender, the Issuing Bank or any of their respective Affiliates on a nonconfidential
basis from a source other than the Company.




          For purposes of this Section, “Information” means all information received from the
Company or any of its Subsidiaries relating to the Company or any of its Subsidiaries or any of
their respective businesses, other than any such information that is available to the Agent, any
Lender or the Issuing Bank on a nonconfidential basis prior to disclosure by the Company or any of
its Subsidiaries, provided that, in the case of information received from the Company or
any of its Subsidiaries after the date hereof, such information is clearly identified at the time
of delivery as confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation to do so if such
Person has exercised the same


47









 







degree of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.




          SECTION 9.09. Governing Law. This Agreement and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.




          SECTION 9.10. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement
by telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.




          SECTION 9.11. Judgment. (a) If for the purposes of obtaining judgment in any court
it is necessary to convert a sum due hereunder in Dollars into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall
be that at which in accordance with normal banking procedures the Agent could purchase Dollars with
such other currency at Citibank’s principal office in London at 11:00 A.M. (London time) on the
Business Day preceding that on which final judgment is given.




          (b) The obligation of any Borrower in respect of any sum due from it in any currency (the
“Primary Currency”) to any Lender or the Agent hereunder shall, notwithstanding any
judgment in any other currency, be discharged only to the extent that on the Business Day following
receipt by such Lender or the Agent (as the case may be), of any sum adjudged to be so due in such
other currency, such Lender or the Agent (as the case may be) may in accordance with normal banking
procedures purchase the applicable Primary Currency with such other currency; if the amount of the
applicable Primary Currency so purchased is less than such sum due to such Lender or the Agent (as
the case may be) in the applicable Primary Currency, each Borrower agrees, as a separate obligation
and notwithstanding any such judgment, to indemnify such Lender or the Agent (as the case may be)
against such loss, and if the amount of the applicable Primary Currency so purchased exceeds such
sum due to any Lender or the Agent (as the case may be) in the applicable Primary Currency, such
Lender or the Agent (as the case may be) agrees to remit to such Borrower such excess.




          SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties hereto 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 Notes, 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 any such New York State court or, to the extent
permitted by law, in such federal court. Each Loan Party hereby agrees that service of process in
any such action or proceeding brought in the any such New York State court or in such federal court
may be made upon the Company and each other Loan Party hereby irrevocably appoints the Company its
authorized agent to accept such service of process, and agrees that the failure of the Company to
give any notice of any such service shall not impair or affect the validity of such service or of
any judgment rendered in any action or proceeding based thereon. The Company and each other Loan
Party hereby further irrevocably consent to the service of process in any action or proceeding in
such courts by the mailing thereof by any parties hereto by registered or certified mail, postage
prepaid, to the Company at its address specified pursuant to Section 9.02. 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 party may otherwise have to bring any
action or proceeding relating to this Agreement or the Notes in the courts of any jurisdiction. To
the extent that any Loan Party has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself or its property,
each Loan Party hereby irrevocably waives such immunity in respect of its obligations under this
Agreement.




          (b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that 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
Notes in any New York State or federal




48









 




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 9.13. No Liability of the Issuing Banks. The Borrowers assume all risks of
the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to its
use of such Letter of Credit. Neither an Issuing Bank nor any of its officers or directors shall
be liable or responsible for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the validity, sufficiency
or genuineness of documents, or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment by such Issuing
Bank against presentation of documents that do not comply with the terms of a Letter of Credit,
including failure of any documents to bear any reference or adequate reference to the Letter of
Credit; or (d) any other circumstances whatsoever in making or failing to make payment under any
Letter of Credit, except that the applicable Borrower shall have a claim against such Issuing Bank,
and such Issuing Bank shall be liable to such Borrower, to the extent of any direct, but not
consequential, damages suffered by such Borrower that such Borrower proves were caused by such
Issuing Bank’s willful misconduct or gross negligence when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. In furtherance and not
in limitation of the foregoing, such Issuing Bank may accept documents that appear on their face to
be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary; provided that nothing herein shall be deemed to
excuse such Issuing Bank if it acts with gross negligence or willful misconduct in accepting such
documents.




          SECTION 9.14. Patriot Act Notice. Each Lender and the Agent (for itself and not on
behalf of any Lender) hereby notifies each Borrower that pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that identifies each Borrower,
which information includes the name and address of each Borrower and other information that will
allow such Lender or the Agent, as applicable, to identify each Borrower in accordance with the
Patriot Act. Each Borrower shall provide such information and take such actions as are reasonably
requested by the Agent or any Lenders in order to assist the Agent and the Lenders in maintaining
compliance with the Patriot Act.




          SECTION 9.15. Power of Attorney. Each Subsidiary of the Company may from time to
time authorize and appoint the Company as its attorney-in-fact to execute and deliver (a) any
amendment, waiver or consent in accordance with Section 9.01 on behalf of and in the name of such
Subsidiary and (b) any notice or other communication hereunder, on behalf of and in the name of
such Subsidiary. Such authorization shall become effective as of the date on which such Subsidiary
delivers to the Agent a power of attorney enforceable under applicable law and any additional
information to the Agent as necessary to make such power of attorney the legal, valid and binding
obligation of such Subsidiary.




          SECTION 9.16. No Fiduciary Duty . The Agent, each Lender and their Affiliates
(collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests
that conflict with those of the Borrowers, their stockholders and/or their affiliates. Each
Borrower agrees that nothing in the Agreement or the related documents or otherwise will be deemed
to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between
any Lender, on the one hand, and the Borrowers, their stockholders or their affiliates, on the
other. The Loan Parties acknowledge and agree that (i) the transactions contemplated by the
Agreement and the related documents (including the exercise of rights and remedies hereunder and
thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the
Borrowers, on the other, and (ii) in connection therewith and with the process leading thereto, (x)
no Lender has
assumed an advisory or fiduciary responsibility in favor of the Borrowers, their
stockholders or their affiliates with respect to the transactions contemplated hereby (or the
exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective
of whether any Lender has advised, is currently advising or will advise the Borrowers, their
stockholders or their affiliates on other matters) or any other obligation to the Borrowers except
the obligations expressly set forth in the Agreement and the related Documents and (y) each Lender
is acting solely as principal and not as the agent or fiduciary of the Borrowers, their management,
stockholders, creditors or any other Person. Each Borrower acknowledges and agrees that such
Borrower has consulted its own legal and financial advisors to the extent it deemed appropriate and
that it is responsible for making its own independent judgment with respect to such transactions
and the process leading thereto. Each Borrower agrees that it will not claim that any Lender has




49









 




rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such
Borrower, in connection with such transaction or the process leading thereto.




50









 








          SECTION 9.17. Waiver of Jury Trial. Each of the Company, the other Loan Parties, the
Agent and the Lenders hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Agreement or the Notes or the actions of the Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.




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




	 	 	 	 	 
	 	COOPER INDUSTRIES, LTD.

 	 
	 	By  	/s/ Terry A. Klebe
 	 
	 	 	Senior Vice President and 	 
	 	 	Chief Financial Officer 	 
	 
	 	COOPER US INC.

 	 
	 	By  	/s/ Terry A. Klebe
 	 
	 	 	Senior Vice President and 	 
	 	 	Chief Financial Officer 	 
	 	 	 
	 	By  	                   /s/ Tyler W. Johnson
 	 
	 	 	Vice President and Treasurer 	 
	 	 	 	 
	 	COOPER INDUSTRIES, LLC,

     as Subsidiary Guarantor

 	 
	 	By  	/s/ Terry A. Klebe
 	 
	 	 	President 	 
	 	 	 
	 	By  	                   /s/ Tyler W. Johnson
 	 
	 	 	Treasurer 	 
	 	 	 	 
	 	COOPER B-LINE INC.,

     as Subsidiary Guarantor

 	 
	 	By  	/s/ James T. Burrell
 	 
	 	 	Vice President 	 
	 	 	 
	 	By  	                    /s/ Tyler W. Johnson
 	 
	 	 	Treasurer 	 
	 	 	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COOPER BUSSMAN, LLC,

     as Subsidiary Guarantor

 	 
	 	By  	/s/ James T. Burrell
 	 
	 	 	Vice President 	 
	 	 	 
	 	By  	                    /s/ Tyler W. Johnson
 	 
	 	 	Treasurer 	 
	 	 	 	 
	 	COOPER CROUSE-HINDS, LLC,

     as Subsidiary Guarantor

 	 
	 	By  	/s/ James T. Burrell
 	 
	 	 	Vice President 	 
	 	 	 	 
	 	By  	                   /s/ Tyler  W. Johnson
 	 
	 	 	Treasurer 	 
	 	 	 	 
	 	COOPER LIGHTING, LLC,

     as Subsidiary Guarantor

 	 
	 	By  	/s/ James T. Burrell
 	 
	 	 	Vice President 	 
	 	 	 	 
	 	By  	                    /s/ Tyler W. Johnson
 	 
	 	 	Treasurer 	 
	 	 	 	 
	 	COOPER POWER SYSTEMS, LLC,

     as Subsidiary Guarantor

 	 
	 	By  	/s/ James T. Burrell
 	 
	 	 	Vice President 	 
	 	 	 	 
	 	By  	                   /s/ Tyler W. Johnson
 	 
	 	 	Treasurer 	 
	 	 	 	 
	 




 









 





	 	 	 	 	 
	 	COOPER WIRING DEVICES, INC.,

     as Subsidiary Guarantor

 	 
	 	By  	/s/ James T. Burrell
 	 
	 	 	Vice President 	 
	 	 	 	 
	 	By  	                  /s/ Tyler W. Johnson
 	 
	 	 	Treasurer 	 
	 	 	 	 
	 




 









 





	 	 	 	 	 
	 	CITIBANK, N.A.,

     as Agent and as Lender

 	 
	 	By  	/s/ Andrew Sidford
 	 
	 	 	Vice President 	 
	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION

 	 
	 	By  	/s/ W. J. Bowne
 	 
	 	 	Managing Director 	 
	 	 	 	 
	 	BANK OF AMERICA, N.A.

 	 
	 	By  	/s/ George Hlentzas
 	 
	 	 	Vice President 	 
	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND PLC

 	 
	 	By  	/s/ Angela Reilly
 	 
	 	 	Managing Director 	 
	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH

 	 
	 	By  	/s/ Heidi Sanquist
 	 
	 	 	Director 	 
	 	 	 
	 	By  	                    /s/ Ming K. Chu
 	 
	 	 	Vice President 	 
	 	 	 	 
	 	AUSTRALIA AND NEW ZEALAND BANKING 

GROUP LIMITED

 	 
	 	By  	/s/ John W. Wade
 	 
	 	 	Deputy General Manager 	 
	 	 	Head of Operations and Infrastructure 	 



	 	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 



 









 









	 	 	 	 	 
	 	BARCLAYS BANK PLC

 	 
	 	By  	/s/ Nicholas A. Bell
 	 
	 	 	Director 	 
	 	 	 	 
	 	GOLDMAN SACHS BANK USA

 	 
	 	By  	/s/ Mark Walton
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	HSBC BANK USA, N.A.

 	 
	 	By  	/s/ Dale T. Wilson
 	 
	 	 	Senior Vice President 	 
	 	 	 	 
	 	THE BANK OF NEW YORK MELLON

 	 
	 	By  	/s/ Robert Besser
 	 
	 	 	Vice President 	 



	 	 	 	 	 
	 	UBS LOAN FINANCE LLC

 	 
	 	By  	/s/ Irja R. Otsa

	/s/ Marie Haddad

	 	 	Associate Director	         Associate  Director 
	 	 	 	 



	 	 	 	 	 
	 	WELLS FARGO BANK

 	 
	 	By  	/s/ Stephen C. Melton
 	 
	 	 	Senior Vice President 	 
	 	 	 	 
	 




 









 








SCHEDULE I

COOPER INDUSTRIES, LTD.

FIVE YEAR CREDIT AGREEMENT

APPLICABLE LENDING OFFICES




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Name of Initial	 	Revolving Credit	 	Letter of Credit	 	Domestic Lending	 	Eurodollar Lending
	Lender	 	Commitment	 	Commitment	 	Office	 	Office
	Australia and New
Zealand Banking
Group Limited

	 	$	25,000,000	 	 	 	 	 	 	 	 	 
	Bank of America,
N.A.

	 	$	33,000,000	 	 	 	 	 	 	 	 	 
	The Bank of New
York Mellon

	 	$	25,000,000	 	 	 	 	 	 	 	 	 
	Barclays Bank PLC

	 	$	25,000,000	 	 	 	 	 	 	 	 	 
	Citibank, N.A.

	 	$	38,000,000	 	 	 	 	 	 	 	 	 
	Deutsche Bank AG
New York Branch

	 	$	33,000,000	 	 	 	 	 	 	 	 	 
	Goldman Sachs Bank
USA

	 	$	25,000,000	 	 	 	 	 	 	 	 	 
	HSBC Bank, USA, N.A.

	 	$	25,000,000	 	 	 	 	 	 	 	 	 
	PNC Bank, National
Association

	 	$	38,000,000	 	 	$	25,000,000	 	 	 	 	 
	The Royal Bank of
Scotland plc

	 	$	33,000,000	 	 	 	 	 	 	 	 	 
	UBS Loan Finance LLC

	 	$	25,000,000	 	 	 	 	 	 	 	 	 
	Wells Fargo Bank

	 	$	25,000,000	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	TOTAL

	 	$	350,000,000.00	 	 	$	25,000,000	 	 	 	 	 






 









 





Schedule 5.02(a) — Existing Liens




     None.




 









 








EXHIBIT A — FORM OF

PROMISSORY NOTE




			
	 	 	 
	U.S.$                    
	 	Dated:                     , 200_






          FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a                      corporation (the
“Borrower”), HEREBY PROMISES TO PAY to the order of                                          (the
“Lender”) for the account of its Applicable Lending Office on the Termination Date (each as
defined in the Credit Agreement referred to below) the principal sum of U.S.$[amount of the
Lender’s Commitment in figures] or, if less, the aggregate principal amount of the Advances made by
the Lender to the Borrower pursuant to the Credit Agreement dated as of August 14, 2009 among the
Borrower, [Cooper Industries, Ltd.][Cooper US Inc.], the Subsidiary Guarantors named therein, the
Lender and certain other lenders parties thereto, and Citibank, N.A. as Agent for the Lender and
such other lenders (as amended or modified from time to time, the “Credit Agreement”; the
terms defined therein being used herein as therein defined) outstanding on the Termination Date.




          The Borrower promises to pay interest on the unpaid principal amount of each Advance from the
date of such Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.




          Both principal and interest in respect of each Advance are payable in lawful money of the
United States of America to the Agent at its account maintained at 388 Greenwich Street, New York,
New York 10013, in same day funds. Each Advance owing to the Lender by the Borrower pursuant to
the Credit Agreement, and all payments made on account of principal thereof, shall be recorded by
the Lender and, prior to any transfer hereof, endorsed on the grid attached hereto which is part of
this Promissory Note.




          This Promissory Note is one of the Notes referred to in, and is entitled to the benefits of,
the Credit Agreement. The Credit Agreement, among other things, (i) provides for the making of
Advances by the Lender to the Borrower from time to time in an aggregate amount not to exceed at
any time outstanding the U.S. dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Advance being evidenced by this Promissory Note and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain stated events and
also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.




	 	 	 	 	 
	 	[NAME OF BORROWER]

 	 
	 	By  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




 









 





ADVANCES AND PAYMENTS OF PRINCIPAL




	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount of	 	 	 	 
	 	 	Amount of	 	Principal Paid	 	Unpaid Principal	 	Notation
	Date	 	Advance	 	or Prepaid	 	Balance	 	Made By
	 
	 	 	 	 	 	 	 	 





2









 





EXHIBIT B — FORM OF NOTICE OF

BORROWING




Citibank, N.A., as Agent

     for the Lenders parties

     to the Credit Agreement

     referred to below

     Two Penns Way

     New Castle, Delaware 19720




[Date]



          Attention: Bank Loan Syndications Department




Ladies and Gentlemen:




          The undersigned, [Name of Borrower], refers to the Credit Agreement, dated as of August 14,
2009 (as amended or modified from time to time, the “Credit Agreement”, the terms defined
therein being used herein as therein defined), among the undersigned, certain Lenders parties
thereto and Citibank, N.A., as Agent for said Lenders, and hereby gives you notice, irrevocably,
pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests a Borrowing
under the Credit Agreement, and in that connection sets forth below the information relating to
such Borrowing (the “Proposed Borrowing”) as required by Section 2.02(a) of the Credit
Agreement:





     (i) The Business Day of the Proposed Borrowing is                     , 20___.




     (ii) The Type of Advances comprising the Proposed Borrowing is [Base Rate Advances]
[Eurodollar Rate Advances].




     (iii) The aggregate amount of the Proposed Borrowing is $                    .




     [(iv) The initial Interest Period for each Eurodollar Rate Advance made as part of the
Proposed Borrowing is ___month[s].]



          The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the Proposed Borrowing:





     (A) the representations and warranties contained in Section 4.01 of the Credit
Agreement (except the representations set forth in the last sentence of subsection (e)
thereof and in subsection (f) thereof (other than clause (ii) thereof)) are correct, before
and after giving effect to the Proposed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and



 









 






     (B) no event has occurred and is continuing, or would result from such Proposed
Borrowing or from the application of the proceeds therefrom, that constitutes a Default.



	 	 	 	 	 
	 	Very truly yours,





[NAME OF BORROWER]

 	 
	 	By  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




2









 








EXHIBIT C — FORM OF

ASSIGNMENT AND ACCEPTANCE




          Reference is made to the Credit Agreement dated as of August 14, 2009 (as amended or modified
from time to time, the “Credit Agreement”) among Cooper Industries, Ltd., a Bermuda company
(the “Company”), Cooper US Inc., a Delaware corporation, the other Loan Parties parties
thereto, the Lenders (as defined in the Credit Agreement) and Citibank, N.A., as agent for the
Lenders (the “Agent”). Terms defined in the Credit Agreement are used herein with the same
meaning.




          The “Assignor” and the “Assignee” referred to on Schedule I hereto agree as follows:




          1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases
and assumes from the Assignor, an interest in and to the Assignor’s rights and obligations under
the [Credit Agreement as of the date hereof] [the Letter of Credit Facility] equal to the
percentage interest specified on Schedule 1 hereto of [all outstanding rights and obligations under
the Credit Agreement together with participations in Letters of Credit held by the Assignor on the
date hereof] [such Assignor’s Unissued Letter of Credit Commitment]. After giving effect to such
sale and assignment, the Assignee’s [Revolving Credit Commitment and the amount of the Advances
owing to the Assignee] [Letter of Credit Commitment] will be as set forth on Schedule 1 hereto.




          2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to be created under or
in connection with, the Credit Agreement or any other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no responsibility with respect to
the financial condition of the Company or any other Loan Party or the performance or observance by
the Company or any other Loan Party of any of its obligations under the Credit Agreement or any
other instrument or document furnished pursuant thereto; and (iv) attaches the Note[, if any,] held
by the Assignor [and requests that the Agent exchange such Note for a new Note payable to the order
of [the Assignee in an amount equal to the Revolving Credit Commitment assumed by the Assignee
pursuant hereto or new Notes payable to the order of the Assignee in an amount equal to the
Revolving Credit Commitment assumed by the Assignee pursuant hereto and] the Assignor in an amount
equal to the Revolving Credit Commitment retained by the Assignor under the Credit Agreement[,
respectively,] as specified on Schedule 1 hereto].




          3. The Assignee (i) confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements referred to in Section 4.01 thereof and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iii) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement as are delegated to the Agent by the
terms thereof, together with such powers and discretion as are reasonably incidental thereto;
(v) agrees that it will perform in accordance with their terms all of the obligations that by the
terms of the Credit Agreement are required to be performed by it as a Lender; and (vi) attaches any
U.S. Internal Revenue Service forms required under Section 2.14 of the Credit Agreement.




          4. Following the execution of this Assignment and Acceptance, it will be delivered to the
Agent for acceptance and recording by the Agent. The effective date for this Assignment and
Acceptance (the “Effective Date”) shall be the date of acceptance hereof by the Agent,
unless otherwise specified on Schedule 1 hereto.




 









 








          5. Upon such acceptance and recording by the Agent, as of the Effective Date, (i) the Assignee
shall be a party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to
the extent provided in this Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Credit Agreement.




          6. Upon such acceptance and recording by the Agent, from and after the Effective Date, the
Agent shall make all payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal, interest and facility
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods prior to the Effective
Date directly between themselves.




          7. This Assignment and Acceptance shall be governed by, and construed in accordance with, the
laws of the State of New York.




          8. This Assignment and Acceptance may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of Schedule 1 to this Assignment and Acceptance by telecopier
shall be effective as delivery of a manually executed counterpart of this Assignment and
Acceptance.




          IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to this Assignment
and Acceptance to be executed by their officers thereunto duly authorized as of the date specified
thereon.




2









 








Schedule 1

to

Assignment and Acceptance




	 	 	 	 	 
	Percentage interest assigned:

	 	 	 	___%
	 
	 	 	 	 
	[Assignee’s Revolving Credit Commitment:

	 	$___	 	 
	 
	 	 	 	 
	Aggregate outstanding principal amount of Advances assigned:

	 	$___	 	 
	 
	 	 	 	 
	Principal amount of Note payable to Assignee:

	 	$___	 	 
	 
	 	 	 	 
	Principal amount of Note payable to Assignor:

	 	$___]	 	 
	 
	 	 	 	 
	[Assignee’s Letter of Credit Commitment:

	 	$___]	 	 
	 
	 	 	 	 
	Effective Date*:                     , 200_
	 	 	 	 






[NAME OF ASSIGNOR], as Assignor




By                                         

     Title:




Dated:                                         , 200_




[NAME OF ASSIGNEE], as Assignee




By                                         

     Title:




Dated:                                         , 200_




Domestic Lending Office:

                    [Address]




Eurodollar Lending Office:

                    [Address]






 




			
	*	 	This date should be no earlier than five Business Days
after the delivery of this Assignment and Acceptance to the Agent.




3









 










Accepted [and Approved]** this

                     day of                                         , 200_




CITIBANK, N.A., as Agent




By                                         

     Title:




[Approved this                      day

of                     , 200_




[NAME OF BORROWER]




By                                         ]*

     Title:






 




			
	**	 	Required if the Assignee is an Eligible Assignee solely
by reason of clause (iii) of the definition of “Eligible Assignee”.
	 
	*	 	Required if the Assignee is an Eligible Assignee solely
by reason of clause (iii) of the definition of “Eligible Assignee”.





4









 





Exhibit 10.9




EXHIBIT D-1 — FORM OF

OPINION OF COUNSEL

FOR THE LOAN PARTIES




August 14, 2009




To the Agent and each of the Lenders party

to the Credit Agreement

referred to below




Cooper Industries, Ltd. and Cooper US Inc.




Ladies and Gentlemen:




          This opinion is furnished to you pursuant to Section 3.01(d)(iv) of the Credit Agreement,
dated as of August 14, 2009 (the “Credit Agreement”), among Cooper Industries, Ltd., a Bermuda
company (the “Company”), Cooper US Inc., a Delaware corporation (“Cooper US”), the Subsidiary
Guarantors party thereto (together with the Company and Cooper US, the “Loan Parties”), the Lenders
party thereto and Citibank, N.A., as Agent for the Lenders. Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as therein defined.




          We have acted as counsel for the Loan Parties in connection with the preparation, execution
and delivery of the Credit Agreement. In that capacity, we have examined the following
(collectively, the “Opinion Documents”):





     (1) the Credit Agreement; and




     (2) the Notes executed and delivered on the date hereof pursuant to Section 3.01(d)(i)
of the Credit Agreement.



     We have also reviewed such other documents and given consideration to such matters of law and
fact as we have deemed appropriate, in our professional judgment, to render the opinions expressed
in this letter. For purposes of the opinions expressed herein, we have assumed (i) the genuineness
of all signatures on all documents submitted to us as originals, (ii) the authenticity of all
documents submitted to us as originals and the conformity to authentic original documents of all
documents submitted to us as copies, (iii) the absence of duress, fraud, or mutual mistake of
material facts on the part of the parties to the Opinion Documents and (iv) the legal capacity and
competency of natural Persons.



     We have further assumed that (i) each party to the Opinion Documents (other than the Loan
Parties) has all requisite power and authority to enter into and perform its obligations under the
Opinion Documents to which it is a party, and has complied with all applicable laws and regulations
to which it may be subject, (ii) the Opinion Documents have been duly authorized, executed and
delivered by each party thereto (other than the Loan Parties) and constitute the legal, valid and
binding obligations of each party thereto (other than the Loan Parties) and (iii) to the extent
applicable law requires that the Lenders act in accordance with applicable duties of good faith or
fair dealing, in a commercially reasonable manner, or otherwise in compliance with applicable legal
requirements in exercising its rights and remedies under the Opinion Documents, the Agent and the
Lenders will fully comply with such legal requirements, notwithstanding any provisions of the
Opinion Documents that purport to grant the Agent or the Lenders, as applicable, the right to act
or fail to act in a manner contrary to such legal requirements, or based on its or their sole
judgment or in its or their sole discretion or provisions of similar import.



 









 





     We have further assumed, with your permission, the accuracy of each of the matters set forth
below, and we have made no independent inquiry or investigation with respect thereto:




     (1) each Loan Party is a corporation or limited liability company, duly organized,
validly existing and in good standing under the laws of its jurisdiction of organization;




     (2) each Loan Party has the organizational power and authority to carry on its business
as now conducted and to execute and deliver and to perform its obligations under the Opinion
Documents;




     (3) each Loan Party has taken all necessary organizational action to authorize the
execution and delivery of and the performance of its obligations under the Opinion
Documents;




     (4) the execution and delivery by each Loan Party of the Opinion Documents to which it
is a party and the performance by such Loan Party of its obligations thereunder (i) require
no approval, authorization, consent, adjudication or order of any governmental authority of
its jurisdiction of organization or any political subdivision thereof that has not been
obtained, (ii) do not violate any provision of applicable law or regulation of its
jurisdiction of organization, or of any judgment, injunction, order, or decree issued by any
judicial or administrative authority that is binding on such Loan Party, and (iii) do not
contravene or constitute a default under the organizational documents of such Loan Party;
and




     (5) each Loan Party has duly executed and delivered each Opinion Document to which it
is a party.



     The opinions expressed herein are limited to the law of the State of New York and applicable
United States federal law that, in each case, is in our experience normally applicable to general
business organizations not engaged in regulated business activities and to transactions of the type
contemplated between the Loan Parties, on the one hand, and the other parties to the Opinion
Documents, on the other hand, but without our having made any special investigation as to any other
law.



     Finally, we express no opinion as to any matter arising under any federal or state securities
laws or regulations, antitrust or trade regulation laws or regulations, environmental laws or
regulations, tax laws or regulations, pension and employee benefit laws and regulations, laws or
regulations relating to licenses, permits, approvals, or similar matters applicable to the
businesses or activities of the Loan Parties, or any matters of local or municipal laws or
regulations or the laws or regulations of any local agencies or political subdivisions within any
state or any other laws or regulations that are applicable to the subject transactions or the
parties thereto because of the nature or extent of their business.



     Based on the foregoing, and subject to the assumptions, limitations, qualifications and
exceptions stated herein, we are of the opinion that:



     1. The execution and delivery by each Loan Party of each Opinion Document to which it is a
party and the performance by each Loan Party of its obligations thereunder (i) require no approval,
authorization, consent, adjudication or order of any governmental authority of the State of New
York or of the United States of America that has not been obtained and (ii) do not violate any law
or regulation of the State of New York or of the United States of America binding on the Loan
Parties that in our experience is normally applicable to general business organizations in
connection with transactions of the type contemplated by the Opinion Documents.



     2. Each Opinion Document constitutes the legal, valid and binding obligation of each Loan
Party party thereto, enforceable against such Loan Party in accordance with its terms.



     3. Assuming that the proceeds of the Advances are used solely for the purposes set forth in
the Credit Agreement, none of the transactions contemplated by the Opinion Documents will violate
Regulations T, U and X of the Board of Governors of the Federal Reserve System.



2









 





          The opinions expressed herein are subject in their entirety to the following limitations,
qualifications and exceptions:




          (1) The opinions expressed herein do not purport to cover, and we express no opinion with
respect to, the applicability of Section 548 of the federal Bankruptcy Code or any comparable
provision of state law, including provisions relating to fraudulent conveyances.




          (2) The opinion expressed in paragraph 2 above is also qualified to the extent that the
enforceability of the Opinion Documents may be limited by the effect of (i) bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the rights and remedies of creditors
(including, without limitation, matters of contract rejection, fraudulent conveyances and
obligations, turn-over, preference, equitable subordination, automatic stay, and substantive
consolidation under federal bankruptcy laws, as well as state laws regarding fraudulent transfers,
obligations, and conveyances, and state receivership laws), or (ii) general principles of equity,
whether applied by a court of law or equity (including, without limitation, principles governing
the availability of specific performance, injunctive relief or other traditional equitable
remedies, principles affording traditional equitable defenses such as waiver, laches and estoppel,
and legal standards requiring reasonableness or materiality of breach for exercise of remedies or
providing for defenses based on impracticability or impossibility of performance.




          (3) No opinion is expressed with respect to the validity, binding effect, or enforceability of
those provisions (if any) of the Opinion Documents:





          (a) requiring indemnification for, or providing exculpation, release, or exemption from
liability for, any action or inaction by any other person or entity, to the extent such
action or inaction involves gross negligence, willful misconduct or unlawful conduct on the
part of any such person or entity or to the extent arising under the securities laws or
otherwise contrary to public policy;




          (b) providing that waivers or consents by a party or modifications to such documents
may not be given effect unless in writing or in compliance with particular requirements or
that the provisions of such documents are severable;




          (c) purporting to permit the exercise, under certain circumstances, of rights or
remedies without notice or without providing opportunity to cure failures to perform;




          (d) requiring the payment of expenses or attorneys’ fees, except to the extent that a
court determines such fees to be reasonable; or




          (e) to the extent that such provisions constitute a waiver of illegality as a defense
to performance of contract obligations.



          (4) In connection with the provisions of the Opinion Documents whereby any Loan Party submits
to the jurisdiction of any federal court of competent jurisdiction, we note the limitations of 28
U.S.C. §§ 1331 and 1332 on Federal court jurisdiction.




          (5) We express no opinion as to (i) Section 2.14 of the Credit Agreement insofar as it
provides that any Lender purchasing a participation from another Lender pursuant thereto may
exercise set-off or similar rights with respect to such participation and (ii) the effect of the
law of any jurisdiction other than the State of New York wherein any Lender may be located or
wherein enforcement of the Credit Agreement or the Notes may be sought that limits the rates of
interest legally chargeable or collectible.




     A copy of this opinion letter may be delivered by any of you to any Person that becomes a
Lender in accordance with the provisions of the Credit Agreement. Any such Person may rely on the
opinions expressed above as if this opinion letter were addressed and delivered to such Person on
the date hereof.



3









 





     This opinion letter is furnished to you solely in connection with the transactions
contemplated by the Opinion Documents and is solely for your benefit, and may not be relied upon by
any other Person or for any other purpose without our prior written consent.



Very truly yours,




MEO: vsk





4









 








EXHIBIT D-2 — FORM OF

OPINION OF COUNSEL

FOR THE LOAN PARTIES




			
	 	 	 
	 
	 	e-mail:
	 
	 	adfagundo@applebyglobal.com
	 	 	 
	 
	 	direct dial:
	Citibank, N.A., as Agent and the Banks
	 	Tel +1 441 298 3549
	Listed in the Second Schedule
	 	Fax +1 441 298 3461
	 	 	 
	 
	 	your ref:
	 	 	 
	 
	 	appleby ref:
	 
	 	61158.55






	 	 	 
	Dear Sirs

	 	14 August 2009






Cooper Industries, Ltd. (the “Company”)



This opinion as to Bermuda law is addressed to you in connection with the Credit Agreement dated
[14] August 2009 by and among the Company, the Subsidiary Guarantors named therein, the Initial
Lenders and Initial Issuing Banks listed on schedule I thereto (the Initial Lenders and Initial
Issuing Banks listed in the Second Schedule to this opinion, together the “Banks”), PNC Bank,
National Association, as syndication agent and Citibank, N.A., as administrative agent for the
Lenders (the “Credit Agreement”) and the Notes (as defined in the First Schedule to this opinion).
The Company has requested that we provide this opinion which is required pursuant to Clause
3.01(d)(iv) of the Credit Agreement.



For the purposes of this opinion we have examined and relied upon the documents listed, and in some
cases defined, in the First Schedule to this opinion (the “Documents”) together with such other
documentation as we have considered requisite to this opinion. Unless otherwise defined herein,
capitalised terms have the meanings assigned to them in the Credit Agreement.




Assumptions




In stating our opinion we have assumed:





	(a)	 	the authenticity, accuracy and completeness of all Documents and other documentation examined
by us submitted to us as originals and the conformity to authentic original documents of all
Documents and other such documentation submitted to us as certified, conformed, notarised,
faxed or photostatic copies;
	 
	(b)	 	that each of the Documents and other such documentation which was received by electronic
means is complete, intact and in conformity with the transmission as sent;




1









 












	(c)	 	the genuineness of all signatures on the Documents;
	 
	(d)	 	the authority, capacity and power of each of the persons signing the Documents (other than
the Company in respect of the Credit Agreement);
	 
	(e)	 	that any representation, warranty or statement of fact or law, other than as to the laws of
Bermuda, made in any of the Documents is true, accurate and complete;
	 
	(f)	 	that the Credit Agreement constitutes the legal, valid and binding obligations of each of the
parties thereto, other than the Company, under the laws of its jurisdiction of incorporation
or its jurisdiction of formation;
	 
	(g)	 	that the Credit Agreement has been validly authorised, executed and delivered by each of the
parties thereto, other than the Company, and the performance thereof is within the capacity
and powers of each such party thereto, and that each such party to which the Company
purportedly delivered the Credit Agreement has actually received and accepted delivery of the
Credit Agreement;
	 
	(h)	 	that the Credit Agreement will effect, and will constitute legal, valid and binding
obligations of each of the parties thereto, enforceable in accordance with its terms, under
the laws of the State of New York by which it is expressed to be governed;
	 
	(i)	 	that the Credit Agreement is in the proper legal form to be admissible in evidence and
enforced in the courts of the State of New York and in accordance with the laws of the State
of New York;
	 
	(j)	 	that there are no provisions of the laws or regulations of any jurisdiction other than
Bermuda which would be contravened by the execution or delivery of the Credit Agreement or
which would have any implication in relation to the opinion expressed herein and that, in so
far as any obligation under, or action to be taken under, the Credit Agreement is required to
be performed or taken in any jurisdiction outside Bermuda, the performance of such obligation
or the taking of such action will constitute a valid and binding obligation of each of the
parties thereto under the laws of that jurisdiction and will not be illegal by virtue of the
laws of that jurisdiction;
	 
	(k)	 	that the records which were the subject of the Company Search were complete and accurate at
the time of such search and disclosed all information which is material for the purposes of
this




2









 






	 	 	opinion and such information has not since the date of the Company Search been materially
altered;
	 
	(l)	 	that the records which were the subject of the Litigation Search were complete and accurate
at the time of such search and disclosed all information which is material for the purposes of
this opinion and such information has not since the date of the Litigation Search been
materially altered;
	 
	(m)	 	that the Resolutions are in full force and effect, have not been rescinded, either in whole
or in part, and accurately record the resolutions passed by the Board of Directors of the
Company in a meeting which was duly convened and at which a duly constituted quorum was
present and voting throughout and that there is no matter affecting the authority of the
Directors to effect entry by the Company into the Credit Agreement, not disclosed by the
Constitutional Documents or the Resolutions, which would have any adverse implication in
relation to the opinions expressed herein;
	 
	(n)	 	that the other parties to the Credit Agreement have no express or constructive knowledge of
any circumstance whereby any Director of the Company, when the Board of Directors of the
Company passed the Resolutions, failed to discharge his fiduciary duty owed to the Company and
to act honestly and in good faith with a view to the best interests of the Company;
	 
	(o)	 	that the Company has entered into its obligations under the Credit Agreement in good faith
for the purpose of carrying on its business and that, at the time it did so, there were
reasonable grounds for believing that the transactions contemplated by the Credit Agreement
would benefit the Company;
	 
	(p)	 	that each transaction to be entered into pursuant to the Credit Agreement is entered into in
good faith and for full value and will not have the effect of preferring one creditor over
another; and
	 
	(q)	 	that, when executed and delivered, the Notes will be in a form which does not differ in any
material respect from the form of Notes which we have examined for the purposes of this
opinion.





Opinion



Based upon and subject to the foregoing and subject to the reservations set out below and to any
matters not disclosed to us, we are of the opinion that:




3









 









	(1)	 	The Company is an exempted company duly incorporated with limited liability and validly
existing under the laws of Bermuda. The Company possesses the capacity to sue and be sued in
its own name and is in good standing under the laws of Bermuda.
	 
	(2)	 	The Company has all requisite corporate power and authority to enter into, execute, deliver,
and perform its obligations under the Credit Agreement and to take all action as may be
necessary to complete the transactions contemplated thereby.
	 
	(3)	 	The execution, delivery and performance by the Company of the Credit Agreement and the
transactions contemplated thereby have been duly authorised by all necessary corporate action
on the part of the Company.
	 
	(4)	 	The Credit Agreement has been duly executed by the Company and constitutes legal, valid and
binding obligations of the Company, enforceable against the Company in accordance with its
terms.
	 
	(5)	 	The Notes when executed and delivered pursuant to and in accordance with the terms of the
Credit Agreement by the Company will be validly issued and will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms.
	 
	(6)	 	Subject as otherwise provided in this opinion, no consent, licence or authorisation of,
filing with, or other act by or in respect of, any governmental authority or court of Bermuda
is required to be obtained by the Company in connection with the execution, delivery or
performance by the Company of the Credit Agreement or to ensure the legality, validity,
admissibility into evidence or enforceability as to the Company, of the Credit Agreement.
	 
	(7)	 	The execution, delivery and performance by the Company of the Credit Agreement and the
transactions contemplated thereby do not and will not violate, conflict with or constitute a
default under (i) any requirement of any law or any regulation of Bermuda or (ii) the
Constitutional Documents.
	 
	(8)	 	The transactions contemplated by the Credit Agreement are not subject to any currency deposit
or reserve requirements in Bermuda. The Company has been designated as “non-resident” for the
purposes of the Exchange Control Act 1972 and regulations made thereunder and there is no
restriction or requirement of Bermuda binding on the Company which limits the availability or
transfer of foreign exchange (i.e. monies denominated in currencies other than Bermuda




4









 






	 	 	dollars) for the purposes of the performance by the Company of its obligations under the
Credit Agreement.
	 
	(9)	 	The financial obligations of the Company under the Credit Agreement rank at least pari passu
in priority of payment with all other unsecured and unsubordinated indebtedness (whether
actual or contingent) issued, created or assumed by the Company other than indebtedness which
is preferred by virtue of any provision of Bermuda law of general application.
	 
	 	 	Competing priorities between creditors of an insolvent company which is a company in
liquidation in Bermuda are generally determined in the following order:






	 	(i)	 	claims of secured creditors under fixed charges rank first in priority;
	 
	 	(ii)	 	where Section 33(3) of the Employment Act 2000 applies, on the winding up of
a company or the appointment of a receiver of a company, the claims of an employee of
that company in Bermuda to payment for vacation accrued but not taken, wages earned
but not paid, and severance allowance under the Employment Act 2000 up to a maximum of
26 weeks’ wages rank second in priority;
	 
	 	(iii)	 	pursuant to Section 236 of the Companies Act 1981, claims by creditors in
respect of taxes owing to the Bermuda Government and rates owing to any municipality,
as well as, to the extent not within (ii) above, specified wages accrued and unpaid,
holiday remuneration and amounts due under the Contributory Pensions Act 1970 and the
Workmen’s Compensation Act 1965, will rank third in priority;
	 
	 	(iv)	 	claims of secured creditors under floating charges rank fourth in priority;
	 
	 	(v)	 	claims by unsecured creditors rank fifth in priority; and
	 
	 	(vi)	 	claims in the nature of capital claims (generally the claims of shareholders)
or subordinated claims rank last and, amongst themselves, in accordance with the
bye-laws of the company or any shareholders agreement of the company or the terms of
any subordination agreement in the liquidation.






	 	 	On the winding up of a pension plan maintained by a company which is in liquidation, under
the National Pension Scheme (Occupational Pensions) Act 1998 as amended, the property or
proceeds of sale of any property seized or sold in pursuance of a court order as provided
in the statute, will not be distributed to a secured creditor until contributions due from
the employer have been provided for.




5









 












	(10)	 	The choice of the laws of the State of New York as the proper law to govern the Credit
Agreement is a valid choice of law under Bermuda law and such choice of law would be
recognised, upheld and applied by the courts of Bermuda as the proper law of the Credit
Agreement in proceedings brought before them in relation to the Credit Agreement, provided
that: (i) the point is specifically pleaded; (ii) such choice of law is valid and binding
under the laws of the State of New York; and (iii) recognition would not be contrary to public
policy as that term is understood under Bermuda law.
	 
	(11)	 	The submission by the Company to the jurisdiction of the courts of the State of New York
pursuant to the Credit Agreement is not contrary to Bermuda law and would be recognised by the
courts of Bermuda as a legal, valid and binding submission to the jurisdiction of the courts
of the State of New York, if such submission is accepted by such courts and is legal, valid
and binding under the laws of the State of New York.
	 
	(12)	 	A final and conclusive judgment of a competent foreign court against the Company based upon
the Credit Agreement (other than a court of jurisdiction to which The Judgments (Reciprocal
Enforcement) Act 1958 applies, and it does not apply to the courts of the State of New York)
under which a sum of money is payable (not being a sum payable in respect of taxes or other
charges of a like nature, in respect of a fine or other penalty, or in respect of multiple
damages as defined in The Protection of Trading Interests Act 1981) may be the subject of
enforcement proceedings in the Supreme Court of Bermuda under the common law doctrine of
obligation by action on the debt evidenced by the judgment of such competent foreign court. A
final opinion as to the availability of this remedy should be sought when the facts
surrounding the foreign court’s judgment are known, but, on general principles, we would
expect such proceedings to be successful provided that:






	 	(i)	 	the court which gave the judgment was competent to hear the action in
accordance with private international law principles as applied in Bermuda; and
	 
	 	(ii)	 	the judgment is not contrary to public policy in Bermuda, has not
been obtained by fraud or in proceedings contrary to natural justice and is not
based on an error in Bermuda law.






	 	 	Enforcement of such a judgment against assets in Bermuda may involve the conversion of the
judgment debt into Bermuda dollars, but the Bermuda Monetary Authority has indicated that
its present policy is to give the consents necessary to enable recovery in the currency of
the obligation.




6









 












	(13)	 	According to the records maintained in the Register of Companies at the office of the
Registrar of Companies as revealed by the Company Search the current address of the registered
office of the Company is 22 Victoria Street, Hamilton HM 12, Bermuda.
	 
	(14)	 	Neither the Company nor any of its assets or property enjoys, under Bermuda law, immunity on
the grounds of sovereignty from any legal or other proceedings whatsoever or from enforcement,
execution or attachment in respect of its obligations under the Credit Agreement.
	 
	(15)	 	Based solely upon the Company Search and the Litigation Search:






	 	(i)	 	no litigation, administrative or other proceeding of or before any
governmental authority of Bermuda is pending against the Company; and
	 
	 	(ii)	 	no notice to the Registrar of Companies of the passing of a resolution of
members or creditors to wind up or the appointment of a liquidator or receiver has
been given. No petition to wind up the Company or application to reorganise its
affairs pursuant to a Scheme of Arrangement or application for the appointment of a
receiver has been filed with the Supreme Court.






	(16)	 	The Company has received an assurance from the Ministry of Finance granting an exemption,
until 28 March 2016, from the imposition of tax under any applicable Bermuda law computed on
profits or income or computed on any capital asset, gain or appreciation, or any tax in the
nature of estate duty or inheritance tax, provided that such exemption shall not prevent the
application of any such tax or duty to such persons as are ordinarily resident in Bermuda and
shall not prevent the application of any tax payable in accordance with the provisions of the
Land Tax Act 1967 or otherwise payable in relation to land in Bermuda leased to the Company.
There are, subject as otherwise provided in this opinion, no Bermuda taxes, stamp or
documentary taxes, duties or similar charges now due, or which could in the future become due,
in connection with the execution, delivery, performance or enforcement of the Credit Agreement
or the transactions contemplated thereby, or in connection with the admissibility in evidence
thereof and the Company is not required by any Bermuda law or regulation to make any
deductions or withholdings in Bermuda from any payment it may make thereunder.





Reservations




We have the following reservations:




7









 






	(a)	 	The term “enforceable” as used in this opinion means that there is a way of ensuring that
each party performs an agreement or that there are remedies available for breach.
	 
	(b)	 	We express no opinion as to the availability of equitable remedies such as specific
performance or injunctive relief, or as to any matters which are within the discretion of the
courts of Bermuda in respect of any obligations of the Company as set out in the Credit
Agreement. In particular, we express no opinion as to the enforceability of any present or
future waiver of any provision of law (whether substantive or procedural) or of any right or
remedy which might otherwise be available presently or in the future under the Credit
Agreement.
	 
	(c)	 	Enforcement of the obligations of the Company under the Credit Agreement may be limited or
affected by applicable laws from time to time in effect relating to bankruptcy, insolvency or
liquidation or any other laws or other legal procedures affecting generally the enforcement of
creditors’ rights.
	 
	(d)	 	Enforcement of the obligations of the Company may be the subject of a statutory limitation of
the time within which such proceedings may be brought.
	 
	(e)	 	We express no opinion as to any law other than Bermuda law and none of the opinions expressed
herein relates to compliance with or matters governed by the laws of any jurisdiction except
Bermuda. This opinion is limited to Bermuda law as applied by the courts of Bermuda at the
date hereof.
	 
	(f)	 	Where an obligation is to be performed in a jurisdiction other than Bermuda, the courts of
Bermuda may refuse to enforce it to the extent that such performance would be illegal under
the laws of, or contrary to public policy of, such other jurisdiction.
	 
	(g)	 	We express no opinion as to the validity, binding effect or enforceability of any provision
incorporated into the Credit Agreement by reference to a law other than that of Bermuda, or as
to the availability in Bermuda of remedies which are available in other jurisdictions.
	 
	(h)	 	Where a person is vested with a discretion or may determine a matter in his or its opinion,
such discretion may have to be exercised reasonably or such an opinion may have to be based on
reasonable grounds.




8









 






	(i)	 	Any provision in the Credit Agreement that certain calculations or certificates will be
conclusive and binding will not be effective if such calculations or certificates are
fraudulent or erroneous on their face and will not necessarily prevent juridical enquiries
into the merits of any claim by an aggrieved party.
	 
	(j)	 	We express no opinion as to the validity or binding effect of any provision in the Credit
Agreement for the payment of interest at a higher rate on overdue amounts than on amounts
which are current, or that liquidated damages are or may be payable. Such a provision may not
be enforceable if it could be established that the amount expressed as being payable was in
the nature of a penalty; that is to say a requirement for a stipulated sum to be paid
irrespective of, or necessarily greater than, the loss likely to be sustained. If it cannot
be demonstrated to the Bermuda court that the higher payment was a reasonable pre-estimate of
the loss suffered, the court will determine and award what it considers to be reasonable
damages. Section 9 of The Interest and Credit Charges (Regulations) Act 1975 provides that
the Bermuda courts have discretion as to the amount of interest, if any, payable on the amount
of a judgment after date of judgment. If the Court does not exercise that discretion, then
interest will accrue at the statutory rate which is currently 7% per annum.
	 
	(k)	 	We express no opinion as to the validity or binding effect of any provision of the Credit
Agreement which provides for the severance of illegal, invalid or unenforceable provisions.
	 
	(l)	 	A Bermuda court may refuse to give effect to any provisions of the Credit Agreement in
respect of costs of unsuccessful litigation brought before the Bermuda court or where that
court has itself made an order for costs.
	 
	(m)	 	Searches of the Register of Companies at the office of the Registrar of Companies and of the
Supreme Court Causes Book at the Registry of the Supreme Court are not conclusive and it
should be noted that the Register of Companies and the Supreme Court Causes Book do not
reveal:






	 	(i)	 	details of matters which have been lodged for filing or registration which as
a matter of best practice of the Registrar of Companies or the Registry of the Supreme
Court would have or should have been disclosed on the public file, the Causes Book or
the Judgment Book, as the case may be, but for whatever reason have not actually been
filed or registered or are not disclosed or which, notwithstanding filing or
registration, at the date and time the search is concluded are for whatever reason not
disclosed or do not appear on the public file, the Causes Book or Judgment Book;




9









 






	 	(ii)	 	details of matters which should have been lodged for filing or registration
at the Registrar of Companies or the Registry of the Supreme Court but have not been
lodged for filing or registration at the date the search is concluded;
	 
	 	(iii)	 	whether an application to the Supreme Court for a winding-up petition or for
the appointment of a receiver or manager has been prepared but not yet been presented
or has been presented but does not appear in the Causes Book at the date and time the
search is concluded;
	 
	 	(iv)	 	whether any arbitration or administrative proceedings are pending or whether
any proceedings are threatened, or whether any arbitrator has been appointed; or
	 
	 	(v)	 	whether a receiver or manager has been appointed privately pursuant to the
provisions of a debenture or other security, unless notice of the fact has been
entered in the Register of Charges in accordance with the provisions of the Act.






	 	 	Furthermore, in the absence of a statutorily defined system for the registration of charges
created by companies incorporated outside Bermuda (“overseas companies”) over their assets
located in Bermuda, it is not possible to determine definitively from searches of the
Register of Charges maintained by the Registrar of Companies in respect of such overseas
companies what charges have been registered over any of their assets located in Bermuda or
whether any one charge has priority over any other charge over such assets.
	 
	(n)	 	In order to issue this opinion we have carried out the Company Search as referred to in the
First Schedule to this opinion and have not enquired as to whether there has been any change
since the date and time of such search.
	 
	(o)	 	In order to issue this opinion we have carried out the Litigation Search as referred to in
the First Schedule to this opinion and have not enquired as to whether there has been any
change since the date and time of such search.
	 
	(p)	 	In paragraph (1) above, the term “good standing” means that the Company has received a
Certificate of Compliance from the Registrar of Companies.





Disclosure



This opinion is addressed to you solely for your benefit and is neither to be transmitted to any
other person (other than permitted assigns and transferees under the Credit Agreement), nor relied
upon by any other person or for any other purpose nor quoted or referred to in any public document
nor filed with any governmental agency or person, without our prior written consent, except as may
be required by law or regulatory authority. Further, this opinion speaks as of its date and is
strictly limited to the


10









 






matters stated herein and we assume no obligation to review or update this opinion if applicable
law or the existing facts or circumstances should change.



This opinion is governed by and is to be construed in accordance with Bermuda law. It is given on
the basis that it will not give rise to any legal proceedings with respect thereto in any
jurisdiction other than Bermuda.




Yours faithfully




Appleby





11









 








FIRST SCHEDULE





	1.	 	The entries and filings shown in respect of the Company on the file of the Company maintained
in the Register of Companies at the office of the Registrar of Companies in Hamilton, Bermuda,
as revealed by a search conducted on [ ] August 2009 at [ ] (the “Company Search”).
	 
	2.	 	The entries and filings shown in respect of the Company in the Supreme Court Causes Book
maintained at the Registry of the Supreme Court in Hamilton, Bermuda, as revealed by a search
conducted on [ ] August 2009 at [ ] (the “Litigation Search”).
	 
	3.	 	Certified copies of the Certificate of Incorporation, Memorandum of Association and Bye-Laws
for the Company (collectively referred to as the “Constitutional Documents”).
	 
	4.	 	Certified copy of the Minutes of the Meeting of the Board of Directors of the Company held on
9 February 2009 (the “Resolutions”).
	 
	5.	 	A certified copy of the “Foreign Exchange Letter”, dated 22 May 2001, issued by the Bermuda
Monetary Authority, Hamilton Bermuda in relation to the Company.
	 
	6.	 	A certified copy of the “Tax Assurance”, dated 5 June 2001, issued by the Registrar of
Companies for the Minister of Finance in relation to the Company.
	 
	7.	 	A Certificate of Compliance, dated 14 August 2009 issued by the Registrar of Companies in
respect of the Company.
	 
	8.	 	Certificate of Incumbency in respect of the Company dated 11 August 2009.
	 
	9.	 	A certified copy of the Register of Directors and Officers in respect of the Company.
	 
	10.	 	[Faxed copy of] the executed Credit Agreement.
	 
	11.	 	A draft copy of the form of notes to be executed by the Company pursuant to the Credit
Agreement received by email on 14 August 2009 at 9:17 am from Terrance Helz (the “Notes”).










 









 











SECOND SCHEDULE




The Banks




	 	 	 	 	 
	Citibank, N.A.
	 	$	38,000,000	 
	PNC Bank, National Association
	 	$	38,000,000	 
	Bank of America, N.A.
	 	$	33,000,000	 
	The Royal Bank of Scotland plc
	 	$	33,000,000	 
	Deutsche Bank AG
	 	$	33,000,000	 
	Australia and New Zealand Banking Group Limited
	 	$	25,000,000	 
	Barclays Bank PLC
	 	$	25,000,000	 
	Goldman Sachs Bank USA
	 	$	25,000,000	 
	HSBC Bank, USA, N.A.
	 	$	25,000,000	 
	The Bank of New York Mellon
	 	$	25,000,000	 
	UBS Loan Finance LLC
	 	$	25,000,000	 
	Wells Fargo Bank
	 	$	25,000,000	 
	 
	 	 	 
	Total Allocation
	 	$	350,000,000	 







2









 








EXHIBIT D-3 — FORM OF

OPINION OF COUNSEL

FOR THE LOAN PARTIES




[                    ], 2009




To the Agent and each of the Lenders party

to the Credit Agreement

referred to below




Cooper Industries, Ltd. and Cooper US Inc.




     Ladies and Gentlemen:



          I have acted as counsel to Cooper Industries, Ltd., a Bermuda company (the “Company”), and
Cooper US Inc., a Delaware corporation (“Cooper US”) in connection with a Credit Agreement, dated
as of                     , 2009 (the “Credit Agreement”), among the Company, Cooper US, the Subsidiary
Guarantors party thereto (together with Cooper US, collectively, the “Opinion Parties”; and
together with Cooper US and the Company, collectively, the “Loan Parties”), the Lenders party
thereto and Citibank, N.A., as Agent for said Lenders. This opinion is furnished to you as
required by Section 3.01(d)(iv) of the Credit Agreement. Unless otherwise defined herein,
capitalized terms used herein are used as defined in the Credit Agreement.




          I am a member of the State Bar of Texas. As Associate General Counsel of Cooper US, I am
familiar with the corporate records and the affairs and operations of the Loan Parties. I have
made such investigations and reviewed such documents and records as deemed appropriate for purposes
of this opinion.




          Based on the foregoing and subject to other qualifications or limitations stated below, as of
the date hereof, I am of the opinion that:





     1. Each Opinion Party is a corporation or limited liability company, duly organized,
validly existing and in good standing under the laws of its jurisdiction of organization.




     2. The execution, delivery and performance by each Opinion Party of the Credit
Agreement and, in the case of Cooper US, the Notes, and the consummation of the transactions
contemplated thereby, are within such Opinion Party’s corporate or limited liability company
powers, have been duly authorized by all necessary corporate or limited liability company
action, and do not contravene the organizational documents of such Opinion Party. The
Credit Agreement and, in the case of Cooper US, the Notes executed and delivered on the date
hereof pursuant to Section 3.01(d)(i) of the Credit Agreement, have been duly executed and
delivered on behalf of each Opinion Party that is stated to be a party thereto.




     3. No authorization, approval or other action by, and no notice or filing with, any
governmental authority or regulatory body or any other third party is required for the due
execution, delivery and performance by any Opinion Party of the Credit Agreement or, in the
case of Cooper US, the Notes executed and delivered on the date hereof pursuant to Section
3.01(d)(i) of the Credit Agreement.




     4. To the best of my knowledge, there are no pending or overtly threatened actions or
proceedings against the Cooper or any of its Subsidiaries before any court, governmental
agency or arbitrator that purport to affect the legality, validity, binding effect or
enforceability of the Credit Agreement or any of the Notes delivered on the date hereof
pursuant to Section 3.01(d)(i) of the Credit



 









 







Agreement or the consummation of the transactions contemplated thereby or that are
likely to have a materially adverse effect upon the financial condition or operations of the
Company or any of its Subsidiaries.




     5. The making and performance by each Loan Party of the Credit Agreement will result in
no default under any agreement of which I have knowledge affecting or purporting to affect
such Loan Party’s right to borrow money or guaranty obligations or such Loan Party’s
obligations under the Credit Agreement (other than agreements for goods or services
purchased in the ordinary course of business which are not material in amount).




     The foregoing opinions are limited in all respects to the General Corporation Law of
the State of Delaware, the Delaware Limited Liability Company Act, the New York Business
Corporation Law, the laws of the State of Texas and the federal laws of the United States,
and I assume no responsibility as to the applicability thereto, or the effect thereon, of
the laws of any other jurisdiction, including, without limitation, the laws of any
jurisdiction in which you are located.




     The opinion expressed in paragraph 1 above with respect to the valid existence and good
standing of the Opinion Parties is based solely upon the following: (i) the certificate,
dated [                    ], 2009, from the Secretary of State of the State of New York as to the
existence and good standing in the State of New York of Cooper Wiring Devices, Inc.; (ii)
the certificate, dated [                    ], 2009, from the Secretary of State of the State of
Delaware as to the existence and good standing in the State of Delaware of Cooper US; (iii)
the certificate, dated [                    ], 2009, from the Secretary of State of the State of
Delaware as to the existence and good standing in the State of Delaware of Cooper
Industries, LLC; (iv) the certificate, dated [                    ], 2009, from the Secretary of State
of the State of Delaware as to the existence and good standing in the State of Delaware of
Cooper B-Line, Inc.; (v) the certificate, dated [                    ], 2009, from the Secretary of
State of the State of Delaware as to the existence and good standing in the State of
Delaware of Cooper Bussman, LLC; (vi) the certificate, dated [                    ], 2009, from the
Secretary of State of the State of Delaware as to the existence and good standing in the
State of Delaware of Cooper Crouse-Hinds, LLC; (vii) the certificate, dated [                    ],
2009, from the Secretary of State of the State of Delaware as to the existence and good
standing in the State of Delaware of Cooper Lighting, LLC; (viii) the certificate, dated
[                    ], 2009, from the Secretary of State of the State of Delaware as to the existence
and good standing in the State of Delaware of Cooper Power Systems, LLC.




     A copy of this opinion letter may be delivered by any of you to any person that becomes
a Lender in accordance with the provisions of the Credit Agreement. Any such person may
rely on the opinions expressed above as if this opinion letter were addressed and delivered
to such person on the date hereof.




     The opinions expressed and the statements herein made are solely for your benefit as
parties to the Credit Agreement and may not be relied upon by any other person or furnished
to anyone else without my prior written permission.



Very truly yours,





2











 








EXECUTION COPY




U.S. $350,000,000




CREDIT AGREEMENT




Dated as of August 14, 2009




Among




COOPER INDUSTRIES, LTD.

COOPER US INC.

as Borrowers




and




THE OTHER SUBSIDIARY GUARANTORS NAMED HEREIN

as Subsidiary Guarantors




and




THE INITIAL LENDERS NAMED HEREIN

as Initial Lenders




and




CITIBANK, N.A.

as Administrative Agent




PNC BANK, NATIONAL ASSOCIATION

as Syndication Agent




and




CITIGROUP GLOBAL MARKETS INC.

and

PNC CAPITAL MARKETS LLC

as Joint Lead Arrangers and Joint Bookrunners




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.01. Certain Defined Terms
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.02. Computation of Time Periods
	 	 	11	 
	 
	 	 	 	 
	SECTION 1.03. Accounting Terms
	 	 	12	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.01. The Advances and Letters of Credit
	 	 	12	 
	 
	 	 	 	 
	SECTION 2.02. Making the Advances
	 	 	12	 
	 
	 	 	 	 
	SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit
	 	 	13	 
	 
	 	 	 	 
	SECTION 2.04. Fees
	 	 	14	 
	 
	 	 	 	 
	SECTION 2.05. Termination or Reduction of the Commitments
	 	 	15	 
	 
	 	 	 	 
	SECTION 2.06. Repayment of Advances and Letter of Credit Drawings
	 	 	15	 
	 
	 	 	 	 
	SECTION 2.07. Interest on Advances
	 	 	16	 
	 
	 	 	 	 
	SECTION 2.08. Interest Rate Determination
	 	 	17	 
	 
	 	 	 	 
	SECTION 2.09. Optional Conversion of Advances
	 	 	18	 
	 
	 	 	 	 
	SECTION 2.10. Optional Prepayments of Advances
	 	 	18	 
	 
	 	 	 	 
	SECTION 2.11. Increased Costs and Additional Interest
	 	 	18	 
	 
	 	 	 	 
	SECTION 2.12. Illegality
	 	 	19	 
	 
	 	 	 	 
	SECTION 2.13. Payments and Computations
	 	 	19	 
	 
	 	 	 	 
	SECTION 2.14. Taxes
	 	 	20	 
	 
	 	 	 	 
	SECTION 2.15. Sharing of Payments, Etc.
	 	 	22	 
	 
	 	 	 	 
	SECTION 2.16. Evidence of Debt
	 	 	22	 
	 
	 	 	 	 
	SECTION 2.17. Use of Proceeds
	 	 	22	 
	 
	 	 	 	 
	SECTION 2.18. Increase in the Aggregate Commitments
	 	 	23	 






 









 






	 	 	 	 	 
	SECTION 2.19. Extension of Termination Date
	 	 	24	 
	 
	 	 	 	 
	SECTION 2.20. Defaulting Lenders
	 	 	25	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01
	 	 	26	 
	 
	 	 	 	 
	SECTION 3.02. Conditions Precedent to Each Borrowing, Issuance,
Commitment Increase and Extension Date.
	 	 	27	 
	 
	 	 	 	 
	SECTION 3.03. Determinations Under Section 3.01
	 	 	27	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.01. Representations and Warranties of the Company
	 	 	27	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01. Affirmative Covenants
	 	 	29	 
	 
	 	 	 	 
	SECTION 5.02. Negative Covenants
	 	 	31	 
	 
	 	 	 	 
	SECTION 5.03. Financial Covenants
	 	 	33	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.01. Events of Default
	 	 	33	 
	 
	 	 	 	 
	SECTION 6.02. Actions in Respect of the Letters of Credit upon Default
	 	 	35	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	SECTION 7..01. Unconditional Guaranty; Limitation of Liability
	 	 	35	 
	 
	 	 	 	 
	SECTION 7.02. Guaranty Absolute
	 	 	36	 
	 
	 	 	 	 
	SECTION 7.03. Waivers and Acknowledgments
	 	 	37	 
	 
	 	 	 	 
	SECTION 7.04. Subrogation
	 	 	37	 
	 
	 	 	 	 
	SECTION 7.05. Subordination
	 	 	38	 
	 
	 	 	 	 
	SECTION 7.06. Continuing Guaranty; Assignments
	 	 	39	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	SECTION 8.01. Authorization and Authority
	 	 	39	 






ii









 






	 	 	 	 	 
	SECTION 8.02. Agent Individually
	 	 	39	 
	 
	 	 	 	 
	SECTION 8.03. Duties of Agent; Exculpatory Provisions
	 	 	40	 
	 
	 	 	 	 
	SECTION 8.04. Reliance by Agent
	 	 	40	 
	 
	 	 	 	 
	SECTION 8.05. Delegation of Duties
	 	 	41	 
	 
	 	 	 	 
	SECTION 8.06. Resignation of Agent
	 	 	41	 
	 
	 	 	 	 
	SECTION 8.07. Non-Reliance on Agent and Other Lenders
	 	 	41	 
	 
	 	 	 	 
	SECTION 8.08. No Other Duties, etc
	 	 	42	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.01. Amendments, Etc.
	 	 	42	 
	 
	 	 	 	 
	SECTION 9.02. Notices, Etc.
	 	 	42	 
	 
	 	 	 	 
	SECTION 9.03. No Waiver; Remedies
	 	 	43	 
	 
	 	 	 	 
	SECTION 9.04. Costs and Expenses
	 	 	43	 
	 
	 	 	 	 
	SECTION 9.05. Right of Set-off
	 	 	44	 
	 
	 	 	 	 
	SECTION 9.06. Binding Effect
	 	 	45	 
	 
	 	 	 	 
	SECTION 9.07. Assignments and Participations
	 	 	45	 
	 
	 	 	 	 
	SECTION 9.08. Confidentiality
	 	 	47	 
	 
	 	 	 	 
	SECTION 9.09. Governing Law
	 	 	48	 
	 
	 	 	 	 
	SECTION 9.10. Execution in Counterparts
	 	 	48	 
	 
	 	 	 	 
	SECTION 9.11. Judgment
	 	 	48	 
	 
	 	 	 	 
	SECTION 9.12. Jurisdiction, Etc.
	 	 	48	 
	 
	 	 	 	 
	SECTION 9.13. No Liability of the Issuing Banks
	 	 	49	 
	 
	 	 	 	 
	SECTION 9.14. Patriot Act Notice
	 	 	49	 
	 
	 	 	 	 
	SECTION 9.15. Power of Attorney
	 	 	49	 
	 
	 	 	 	 
	SECTION 9.16. No Fiduciary Duty
	 	 	49	 
	 
	 	 	 	 
	SECTION 9.17. Waiver of Jury Trial
	 	 	51	 






iii









 






Schedules




Schedule I — List of Applicable Lending Offices




Schedule 5.02(a) — Existing Liens




Exhibits




Exhibit A  —  Form of Note




Exhibit B  —  Form of Notice of Borrowing




Exhibit C  —  Form of Assignment and Acceptance




Exhibit D  —  Form of Opinion of Counsel for the Loan Parties





iv