Exhibit
4.5


EXECUTION
COPY


$300,000,000


AMENDED AND RESTATED
CREDIT AGREEMENT


dated as of


December 14, 2006


among


THE MANITOWOC COMPANY,
INC.


The Subsidiary Borrowers
Party Hereto


The Lenders Party Hereto


BANK OF AMERICA, N.A.,

as Syndication Agent


DEUTSCHE BANK AG NEW YORK
BRANCH,


BNP PARIBAS


and


U.S. BANK, NATIONAL
ASSOCIATION,


as Documentation Agents


and


JPMORGAN CHASE BANK,
N.A.,

as Administrative Agent






 


J.P. MORGAN SECURITIES
INC.,

Sole Bookrunner and Sole Lead Arranger


 


















TABLE OF CONTENTS


	
  

  	
   

  	
   

  	
   

  	
  Page

  
	
  ARTICLE I

  	
  Definitions

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
   

  	
  Defined Terms

  	
   

  	
  1

  
	
  SECTION 1.02.

  	
   

  	
  Classification of Loans and Borrowings

  	
   

  	
  25

  
	
  SECTION 1.03.

  	
   

  	
  Terms Generally

  	
   

  	
  25

  
	
  SECTION 1.04.

  	
   

  	
  Accounting Terms; GAAP

  	
   

  	
  25

  
	
  SECTION 1.05.

  	
   

  	
  Foreign Currency Calculations

  	
   

  	
  26

  
	
  SECTION 1.06.

  	
   

  	
  Redenomination of Certain Foreign Currencies

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  The Credits

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
   

  	
  Commitments

  	
   

  	
  27

  
	
  SECTION 2.02.

  	
   

  	
  Loans and Borrowings

  	
   

  	
  27

  
	
  SECTION 2.03.

  	
   

  	
  Requests for Revolving Borrowings

  	
   

  	
  28

  
	
  SECTION 2.04.

  	
   

  	
  Alternate Currency Loans

  	
   

  	
  29

  
	
  SECTION 2.05.

  	
   

  	
  Swingline Loans

  	
   

  	
  32

  
	
  SECTION 2.06.

  	
   

  	
  Letters of Credit

  	
   

  	
  34

  
	
  SECTION 2.07.

  	
   

  	
  Funding of Borrowings

  	
   

  	
  38

  
	
  SECTION 2.08.

  	
   

  	
  Interest Elections

  	
   

  	
  39

  
	
  SECTION 2.09.

  	
   

  	
  Termination and Reduction of Commitments; Increase
  of Commitments

  	
   

  	
  40

  
	
  SECTION 2.10.

  	
   

  	
  Repayment of Loans; Evidence of Debt

  	
   

  	
  41

  
	
  SECTION 2.11.

  	
   

  	
  Prepayment of Loans

  	
   

  	
  42

  
	
  SECTION 2.12.

  	
   

  	
  Fees

  	
   

  	
  43

  
	
  SECTION 2.13.

  	
   

  	
  Interest

  	
   

  	
  44

  
	
  SECTION 2.14.

  	
   

  	
  Alternate Rate of Interest

  	
   

  	
  45

  
	
  SECTION 2.15.

  	
   

  	
  Increased Costs

  	
   

  	
  45

  
	
  SECTION 2.16.

  	
   

  	
  Break Funding Payments

  	
   

  	
  47

  
	
  SECTION 2.17.

  	
   

  	
  Taxes

  	
   

  	
  47

  
	
  SECTION 2.18.

  	
   

  	
  Payments Generally; Pro Rata Treatment; Sharing of
  Set-offs

  	
   

  	
  48

  
	
  SECTION 2.19.

  	
   

  	
  Mitigation Obligations; Replacement of Lenders

  	
   

  	
  50

  
	
  SECTION 2.20.

  	
   

  	
  Subsidiary Borrowers

  	
   

  	
  51

  
	
  SECTION 2.21.

  	
   

  	
  Additional Reserve Costs

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  Representations and Warranties

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
   

  	
  Organization; Powers

  	
   

  	
  52

  
	
  SECTION 3.02.

  	
   

  	
  Authorization; Enforceability

  	
   

  	
  53

  
	
  SECTION 3.03.

  	
   

  	
  Governmental Approvals; No Conflicts

  	
   

  	
  53

  
	
  SECTION 3.04.

  	
   

  	
  Financial Condition; No Material Adverse Change

  	
   

  	
  53

  
	
  SECTION 3.05.

  	
   

  	
  Properties

  	
   

  	
  53

  
	
  SECTION 3.06.

  	
   

  	
  Litigation and Environmental Matters

  	
   

  	
  54

  
	
  SECTION 3.07.

  	
   

  	
  Compliance with Laws and Agreements

  	
   

  	
  54

  
	
  SECTION 3.08.

  	
   

  	
  Investment Company Status

  	
   

  	
  54

  
	
  SECTION 3.09.

  	
   

  	
  Taxes

  	
   

  	
  55

  
	
  SECTION 3.10.

  	
   

  	
  ERISA

  	
   

  	
  55

  



 


 



 i
 









 


	
  

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.11.

  	
   

  	
  Disclosure

  	
   

  	
  55

  
	
  SECTION 3.12.

  	
   

  	
  The Security Documents

  	
   

  	
  56

  
	
  SECTION 3.13.

  	
   

  	
  Subsidiaries

  	
   

  	
  56

  
	
  SECTION 3.14.

  	
   

  	
  Indebtedness

  	
   

  	
  56

  
	
  SECTION 3.15.

  	
   

  	
  Insurance

  	
   

  	
  56

  
	
  SECTION 3.16.

  	
   

  	
  Subordination

  	
   

  	
  57

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  Conditions

  	
   

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
   

  	
  Effectiveness and Initial Advance

  	
   

  	
  57

  
	
  SECTION 4.02.

  	
   

  	
  Each Credit Event

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  Affirmative Covenants

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
   

  	
  Financial Statements and Other Information

  	
   

  	
  58

  
	
  SECTION 5.02.

  	
   

  	
  Notices of Material Events

  	
   

  	
  60

  
	
  SECTION 5.03.

  	
   

  	
  Existence; Conduct of Business

  	
   

  	
  61

  
	
  SECTION 5.04.

  	
   

  	
  Payment of Obligations

  	
   

  	
  61

  
	
  SECTION 5.05.

  	
   

  	
  Maintenance of Properties; Insurance

  	
   

  	
  61

  
	
  SECTION 5.06.

  	
   

  	
  Books and Records; Inspection Rights

  	
   

  	
  61

  
	
  SECTION 5.07.

  	
   

  	
  Compliance with Laws

  	
   

  	
  61

  
	
  SECTION 5.08.

  	
   

  	
  Use of Proceeds and Letters of Credit

  	
   

  	
  62

  
	
  SECTION 5.09.

  	
   

  	
  Compliance with Environmental Laws

  	
   

  	
  62

  
	
  SECTION 5.10.

  	
   

  	
  Further Assurances; etc.

  	
   

  	
  63

  
	
  SECTION 5.11.

  	
   

  	
  Ownership of Subsidiaries; etc.

  	
   

  	
  64

  
	
  SECTION 5.12.

  	
   

  	
  Margin Regulations

  	
   

  	
  64

  
	
  SECTION 5.13.

  	
   

  	
  Additional Guarantors and Collateral

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  Negative Covenants

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
   

  	
  Indebtedness

  	
   

  	
  65

  
	
  SECTION 6.02.

  	
   

  	
  Liens

  	
   

  	
  67

  
	
  SECTION 6.03.

  	
   

  	
  Merger, Purchase or Sale of Assets, Change in
  Business

  	
   

  	
  69

  
	
  SECTION 6.04.

  	
   

  	
  Restricted Payments

  	
   

  	
  72

  
	
  SECTION 6.05.

  	
   

  	
  Advances, Investments and Loans

  	
   

  	
  72

  
	
  SECTION 6.06.

  	
   

  	
  Transactions with Affiliates

  	
   

  	
  75

  
	
  SECTION 6.07.

  	
   

  	
  Minimum Consolidated Interest Coverage Ratio

  	
   

  	
  76

  
	
  SECTION 6.08.

  	
   

  	
  Maximum Consolidated Senior Leverage Ratio

  	
   

  	
  76

  
	
  SECTION 6.09.

  	
   

  	
  Maximum Consolidated Total Leverage Ratio

  	
   

  	
  76

  
	
  SECTION 6.10.

  	
   

  	
  Limitations on Prepayments of Certain Indebtedness;
  Modifications of Certain Indebtedness; Modifications of Certificate of
  Incorporation, By-Laws and Certain Other Agreements, etc.

  	
   

  	
  77

  
	
  SECTION 6.11.

  	
   

  	
  Restrictive Agreements

  	
   

  	
  77

  
	
  SECTION 6.12.

  	
   

  	
  End of Fiscal Years; Fiscal Quarters

  	
   

  	
  78

  
	
  SECTION 6.13.

  	
   

  	
  Limitation on Issuance of Capital Stock

  	
   

  	
  78

  
	
  SECTION 6.14.

  	
   

  	
  Limitation on Creation of Subsidiaries

  	
   

  	
  78

  
	
  SECTION 6.15.

  	
   

  	
  Rental Fleet

  	
   

  	
  79

  
	
  SECTION 6.16.

  	
   

  	
  Sale-Leaseback Restriction

  	
   

  	
  79

  
	
  SECTION 6.17.

  	
   

  	
  Buy-Back Limitation

  	
   

  	
  79

  



 



 ii
 









 


	
  

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.18.

  	
   

  	
  BPGR

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  Events of Default

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  The Administrative Agent

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  Miscellaneous

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
   

  	
  Notices

  	
   

  	
  84

  
	
  SECTION 9.02.

  	
   

  	
  Waivers; Amendments

  	
   

  	
  85

  
	
  SECTION 9.03.

  	
   

  	
  Expenses; Indemnity; Damage Waiver

  	
   

  	
  86

  
	
  SECTION 9.04.

  	
   

  	
  Successors and Assigns

  	
   

  	
  88

  
	
  SECTION 9.05.

  	
   

  	
  Survival

  	
   

  	
  91

  
	
  SECTION 9.06.

  	
   

  	
  Counterparts; Integration; Effectiveness

  	
   

  	
  91

  
	
  SECTION 9.07.

  	
   

  	
  Severability

  	
   

  	
  91

  
	
  SECTION 9.08.

  	
   

  	
  Right of Set-off

  	
   

  	
  92

  
	
  SECTION 9.09.

  	
   

  	
  Governing Law; Jurisdiction; Consent to Service of
  Process

  	
   

  	
  92

  
	
  SECTION 9.10.

  	
   

  	
  WAIVER OF JURY TRIAL

  	
   

  	
  92

  
	
  SECTION 9.11.

  	
   

  	
  Headings

  	
   

  	
  93

  
	
  SECTION 9.12.

  	
   

  	
  Confidentiality

  	
   

  	
  93

  
	
  SECTION 9.13.

  	
   

  	
  Interest Rate Limitation

  	
   

  	
  94

  
	
  SECTION 9.14.

  	
   

  	
  USA PATRIOT Act

  	
   

  	
  94

  
	
  SECTION 9.15.

  	
   

  	
  Conversion of Currencies

  	
   

  	
  94

  
	
  SECTION 9.16.

  	
   

  	
  Syndication Agent and Documentation Agents

  	
   

  	
  95

  
	
  SECTION 9.17.

  	
   

  	
  Amendment and Restatement

  	
   

  	
  95

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULES:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1.01

  	
   

  	
  Pricing Schedule

  	
   

  	
   

  
	
  Schedule 1.02

  	
   

  	
  Existing Intercompany Notes

  	
   

  	
   

  
	
  Schedule 2.01

  	
   

  	
  Commitments

  	
   

  	
   

  
	
  Schedule 2.04

  	
   

  	
  Alternate Currency Lenders

  	
   

  	
   

  
	
  Schedule 2.21

  	
   

  	
  Mandatory Cost Rate

  	
   

  	
   

  
	
  Schedule 3.01

  	
   

  	
  Good Standing

  	
   

  	
   

  
	
  Schedule 3.05

  	
   

  	
  Real Property

  	
   

  	
   

  
	
  Schedule 3.06

  	
   

  	
  Disclosed Matters

  	
   

  	
   

  
	
  Schedule 3.10

  	
   

  	
  ERISA

  	
   

  	
   

  
	
  Schedule 3.13

  	
   

  	
  Subsidiaries

  	
   

  	
   

  
	
  Schedule 3.15

  	
   

  	
  Insurance

  	
   

  	
   

  
	
  Schedule 6.01

  	
   

  	
  Existing Indebtedness

  	
   

  	
   

  
	
  Schedule 6.02

  	
   

  	
  Existing Liens

  	
   

  	
   

  
	
  Schedule 6.05

  	
   

  	
  Existing Investments

  	
   

  	
   

  
	
  Schedule 6.11

  	
   

  	
  Existing Restrictions

  	
   

  	
   

  
	
  EXHIBITS:

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  Form of Assignment and Assumption

  	
   

  	
   

  
	
  Exhibit B

  	
   

  	
  Form of Designation Letter

  	
   

  	
   

  
	
  Exhibit C

  	
   

  	
  Form of Intercompany Note

  	
   

  	
   

  
	
  Exhibit D

  	
   

  	
  Form of Termination Letter

  	
   

  	
   

  



 



 iii















AMENDED AND RESTATED CREDIT AGREEMENT dated as of
December 14, 2006, among THE MANITOWOC COMPANY, INC., the Subsidiary Borrowers
party hereto, the LENDERS party hereto, and JPMORGAN CHASE BANK, N.A., as
Administrative Agent.


R E C I T A L S


A.            The
Borrower, the Subsidiary Borrowers party thereto, the Administrative Agent and
the Lenders are party to that certain Credit Agreement, dated as of June 10,
2005 (as amended up to but not including the date hereof, the “Existing Credit
Agreement”).


B.            The
Borrower, the Subsidiary Borrowers party thereto, the Administrative Agent and
the Lenders wish to amend and restate the Existing Credit Agreement on the
terms and conditions set forth below.


NOW, THEREFORE, in consideration of the premises and
of the mutual agreements made herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree that the Existing Credit Agreement is amended and
restated in its entirety as follows:


ARTICLE I


Definitions


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


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


“Acquired Entity or Business” means either (a)
the assets constituting a business, division or product line of any Person not
already a Subsidiary of the Borrower or (b) 100% of the capital stock of any
such Person, which Person shall, as a result of such stock acquisition, become
a Wholly-Owned Subsidiary of the Borrower (or shall be merged with and into the
Borrower or a Subsidiary Guarantor, with the Borrower or such Subsidiary Guarantor
being the surviving Person).


“Additional Security Documents” means security
documents executed by a Credit Party pursuant to Section 2.20(a) or Section
5.10.


“Adjusted LIBO Rate” means, with respect to any
Eurocurrency Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO
Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided
that, with respect to any Eurocurrency Borrowing denominated in a Foreign
Currency, the Adjusted LIBO Rate shall mean the LIBO Rate.



 1
  
 









“Administrative Agent” means, collectively,
JPMorgan, in its capacity as administrative agent for the Lenders hereunder,
and, solely relative to such Loans, J. P. Morgan Europe Limited, in its
capacity as administrative agent with respect to Loans denominated in a Foreign
Currency.


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


“Advance” means any Loan or any Letter of Credit.


“Affiliate” means, with respect to a specified
Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the Person specified.  A Person shall be
deemed to control another Person if such Person possesses, directly or
indirectly, the power (a) to vote 10% or more of the securities having ordinary
voting power for the election of directors (or equivalent governing body) of
such Person or (b) to direct or cause the direction of the management and
policies of such other Person, whether through the ownership of voting
securities, by contract or otherwise; provided, however, that neither the
Administrative Agent nor any Lender (nor any Affiliate thereof) shall be considered
an Affiliate of the Borrower or any Subsidiary thereof.


“Affirmation” means that certain Affirmation of
Guaranties and Security Documents dated as of the date hereof executed by the
Borrower and each Subsidiary Guarantor in favor of the Administrative Agent,
for the benefit of the Administrative Agent, the Collateral Agent and the
Lenders, as it may be amended or modified and in effect from time to time.


“Agreement” means this Amended and Restated
Credit Agreement as the same may be amended, restated, modified or supplemented
from time to time.


“Agreement Currency” shall have the meaning
assigned to such term in Section 9.15(b).


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


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


“Alternate Currency Fronting Lender” means
JPMorgan.


“Alternate Currency Lenders” means (a) the
Alternate Currency Fronting Lender and (b) solely with respect to Alternate
Currency Loans as to which any other Lender is deemed to be an Alternate
Currency Lender pursuant to Section 2.04(l), each such other Lender.



 2
  
 









“Alternate Currency Loan” means a loan made
pursuant to Section 2.04.


“Applicable Borrower” means, with respect to
any Loan or other amount owing hereunder or any matter pertaining to such Loan
or other amount, whichever of the Borrowers is the primary obligor on such Loan
or other amount.


“Applicable Creditor” shall have the meaning
assigned to such term in Section 9.15(b).


“Applicable Lending Installation” is defined in
Section 2.02(e).


“Applicable Participation Percentage” means, as
to any Participating Lender with respect to any Alternate Currency Loan made by
the Alternate Currency Fronting Lender, the percentage determined by dividing
such Participating Lender’s Commitment by the sum of the Commitments of the
Alternate Currency Fronting Lender and each Lender which is a Participating
Lender relative to such Loan.


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


“Applicable Rate” means, for any day, with
respect to any ABR Loan or Eurocurrency Loan, or with respect to the commitment
fees payable hereunder, as the case may be, the applicable rate per annum set
forth in Schedule 1.01 under the caption “ABR Spread”, “Eurocurrency Spread” or
“Commitment Fee Rate”, as the case may be, based upon the Consolidated Total
Leverage Ratio.


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


“Assessment Rate” means, for any day, the
annual assessment rate in effect on such day that is payable by a member of the
Bank Insurance Fund classified as “well capitalized” and within supervisory
subgroup “B” (or a comparable successor risk classification) within the meaning
of 12 C.F.R. Part 327 (or any successor provision) to the Federal Deposit
Insurance Corporation for insurance by such Corporation of time deposits made
in Dollars at the offices of such member in the United States; provided
that if, as a result of any change in any law, rule or regulation, it is no
longer possible to determine the Assessment Rate as aforesaid, then the
Assessment Rate shall be such annual rate as shall be determined by the
Administrative Agent to be representative of the cost of such insurance to the
Lenders.


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


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



 3
  
 









“Base CD Rate” means the sum of (a) the Three
Month Secondary CD Rate multiplied by the Statutory Reserve Rate plus (b) the
Assessment Rate.


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


“Borrower” means The Manitowoc Company, Inc., a
Wisconsin corporation.


“Borrowers” means the Borrower and each
Subsidiary Borrower.


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


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


“BPGR” means Manitowoc EMEA Holding Sarl (formerly known as BPGR Sarl), a
French société à responsabilité limitée and Wholly-Owned Subsidiary of the
Borrower.


“Business Day” means any day that is not a
Saturday, Sunday or other day on which commercial banks in New York City are
authorized or required by law to remain closed; provided that, when used
in connection with a Eurocurrency Loan, the term “Business Day” shall
also exclude any day on which banks are not open for dealings in deposits in
the currency in which such Eurocurrency Loan is denominated in the London
interbank market.


“Buy-Back Arrangements” means arrangements
whereby the Borrower or a Subsidiary of the Borrower in the ordinary course of
business enters into an agreement with a customer or third party financing
company (a) to guarantee to repurchase crane products at a later date at an
agreed upon price or (b) to guarantee a minimum crane product residual value at
the end of an underlying finance term for same including, without limitation,
guarantees of minimum crane product residual value in connection with Sale-Leaseback
Transactions.


“Buy-Back Obligations” means repurchase or
guarantee obligations of the Borrower or its Subsidiaries arising out of
Buy-Back Arrangements.  Guarantees by the
Borrower or its Subsidiaries of customer payment obligations shall not constitute
Buy-Back Obligations.


“Canadian Dollar” means the lawful currency of
Canada.


“Capital Lease Obligations” of any Person means
the obligations of such Person to pay rent or other amounts under any lease of
(or other arrangement conveying the right to use) real or personal property, or
a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the recorded capitalized amount
thereof determined in accordance with GAAP.



 4
  
 









“Cash Equivalents” means:


(a)           direct obligations
of, or obligations the principal of and interest on which are unconditionally
guaranteed by, the United States (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United States), in
each case maturing within one year from the date of acquisition thereof;


(b)           investments in
commercial paper maturing within 270 days from the date of acquisition thereof
and having, at such date of acquisition, the highest credit rating obtainable
from S&P or from Moody’s;


(c)           investments in
certificates of deposit, bankers’ acceptances and time deposits maturing within
180 days from the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any domestic
office of any commercial bank organized under the laws of the United States or
any State thereof which has a combined capital and surplus and undivided profits
of not less than $500,000,000;


(d)           fully collateralized
repurchase agreements with a term of not more than 30 days for securities
described in clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above; and


(e)           money market funds
that comply with the criteria set forth in Securities and Exchange Commission
Rule 2a-7 under the Investment Company Act of 1940 and are rated AAA by S&P
and Aaa by Moody’s.


“Change in Control” means (a) the acquisition
of ownership, directly or indirectly, beneficially or of record, by any Person
or group (within the meaning of the Securities Exchange Act of 1934 and the
rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) of Interests representing more than 30% of the aggregate ordinary
voting power represented by the issued and outstanding Equity Interests of the
Borrower, (b) occupation of a majority of the seats (other than vacant seats)
on the board of directors of the Borrower by Persons who were neither (i)
nominated by the board of directors of the Borrower nor (ii) appointed by
directors so nominated, (c) the acquisition of direct or indirect Control of
the Borrower by any Person or group or (d) a “Change of Control” as defined in
the Senior Note Documents or the Subordinated Note Documents.


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


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



 5
  
 









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


“Collateral” means all property with respect to
which any security interests have been granted (or purported to be granted)
pursuant to any Security Document, including, without limitation, all Pledge
Agreement Collateral, all Security Agreement Collateral and all cash and Cash
Equivalents delivered as collateral pursuant to Section 2.06(j).


“Collateral Agent” means the Administrative
Agent acting as collateral agent for the Secured Creditors pursuant to the
Security Documents.


“Commitment” means, with respect to each
Lender, the commitment of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit, Swingline Loans and Alternate Currency
Loans hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment
may be (a) reduced or increased from time to time pursuant to Section 2.09 and
(b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. 
The initial amount of each Lender’s Commitment is set forth on Schedule
2.01, or in the Assignment and Assumption pursuant to which such Lender shall
have assumed its Commitment, as applicable. 
The initial aggregate amount of the Lenders’ Commitments is
$300,000,000.


“Consolidated EBIT” means, for any period,
Consolidated Net Income from continuing operations for such period before
deducting therefrom Consolidated Interest Expense for such period (to the
extent deducted in arriving at Consolidated Net Income for such period) and
provision for taxes based on income (including foreign withholding taxes
imposed on interest or dividend payments and state single business, unitary or
similar taxes imposed on net income) that were included in arriving at
Consolidated Net Income for such period and without giving effect, without
duplication, to (a) any extraordinary gains, extraordinary losses or other
extraordinary non-cash charges or benefits, (b) any charges arising out of
prepayments of the Senior Notes or the Subordinated Notes or (c) any gains or
losses from sales of assets other than from sales of inventory in the ordinary
course of business.


“Consolidated EBITDA” means, for any period,
Consolidated EBIT for such period, adjusted by adding thereto the amount of all
amortization and depreciation that was deducted in arriving at Consolidated Net
Income for such period; it being understood that in determining the
Consolidated Senior Leverage Ratio and the Consolidated Total Leverage Ratio
only, Consolidated EBITDA for any period shall be calculated on a Pro  Forma
Basis to give effect to any Acquired Entity or Business acquired during such
period pursuant to a Permitted Acquisition and not subsequently sold or
otherwise disposed of by the Borrower or any of its Subsidiaries during such
period.


“Consolidated Indebtedness” means, at any time,
an amount equal to (a) the sum of (without duplication) (i) the aggregate
stated balance sheet amount of all Indebtedness of the Borrower and its
Subsidiaries as would be required to be reflected on the liability side of a
balance sheet of such Person at such time in accordance with GAAP as determined
on a consolidated basis, (ii) all Indebtedness of the Borrower and its
Subsidiaries of the type described in clauses (b) and (g) of the definition of
Indebtedness contained herein, (iii) the 



 6
  
 









aggregate amount of all
Receivables Indebtedness of the Borrower and its Subsidiaries or any SPC
outstanding at such time and (iv) all Guarantees by the Borrower and its
Subsidiaries in respect of Indebtedness of any third Person of the type
referred to in preceding clauses (i), (ii) and (iii) of this definition
(including, without limitation, all Indebtedness of the Borrower and its
Subsidiaries described in Section 6.01(n)), minus (b) the Offsetting
Cash Amount; provided that in making any determination of “Consolidated
Indebtedness” pursuant to this definition, there shall be excluded therefrom
any Indebtedness of the type described in clause (b) of the definition of
Indebtedness contained herein, in each case to the extent (and only to the
extent) that such Indebtedness (x) is evidenced by letters of credit issued to
support performance bonds of the Borrower or its Subsidiaries (but exclusive of
unpaid drawings thereunder) and (y) would otherwise be included in the
determination of Consolidated Indebtedness.  Buy-Back Obligations of the Borrower and its
Subsidiaries shall not constitute Consolidated Indebtedness.


“Consolidated Interest Coverage Ratio” means,
as of the end of any fiscal quarter of the Borrower, the ratio of (a)
Consolidated EBITDA to (b) Consolidated Interest Expense, in each case for the
period of four fiscal quarters of the Borrower then ended.


“Consolidated Interest Expense” means, for any
period, the total consolidated interest expense of the Borrower and its
Subsidiaries for such period (calculated without regard to any limitations on
the payment thereof, but net of any interest income of the Borrower and its
Subsidiaries for such period) plus, without duplication, that portion of
Capital Lease Obligations of the Borrower and its Subsidiaries representing the
interest factor for such period; provided that “Consolidated Interest
Expense” shall be deemed to include any discount and/or interest component in
respect of any sale of accounts receivable or related rights by the Borrower or
a Subsidiary regardless of whether such discount or interest would constitute
interest under GAAP, in each case, on a consolidated basis.


“Consolidated Net Income” means, for any
period, the net income (or loss) from continuing operations of the Borrower and
its Subsidiaries for such period, determined on a consolidated basis (after any
deduction for minority interests), provided that in determining
Consolidated Net Income, (a) the net income of any other Person which is not a
Subsidiary of the Borrower or is accounted for by the Borrower by the equity
method of accounting shall be included only to the extent of the payment of
cash dividends or cash distributions by such other Person to the Borrower or a
Subsidiary thereof during such period, (b) the net income of any Subsidiary of
the Borrower shall be excluded to the extent that the declaration or payment of
cash dividends or similar cash distributions by that Subsidiary of that net
income is not at the date of determination permitted by operation of its
charter or any agreement, instrument or law applicable to such Subsidiary and
(c) for any period, any interest income of the Borrower and its Subsidiaries
for such period shall be excluded.


“Consolidated Senior Indebtedness” means, at
any time, the amount of all Consolidated Indebtedness at such time, less the
aggregate principal amount of all Subordinated Notes outstanding at such time.


“Consolidated Senior Leverage Ratio” means, at
any time, the ratio of (a) Consolidated Senior Indebtedness at such time to (b)
Consolidated EBITDA for the four fiscal quarters of the Borrower then most
recently ended.



 7
  
 









“Consolidated Tangible Net Assets” means, at
any time, the amount, without duplication, of the net book value of the
consolidated assets of the Borrower and its Subsidiaries excluding the net book
value of all such assets which would be treated as intangibles under GAAP,
including without limitation deferred charges, leasehold conversion costs,
franchise rights, non-compete agreements, research and development costs, goodwill,
unamortized debt discounts, patents, patent applications, trademarks, trade
names, copyrights and licenses.


“Consolidated Total Leverage Ratio” means, at
any time, the ratio of (a) Consolidated Indebtedness at such time to (b)
Consolidated EBITDA for the four fiscal quarters of the Borrower then most
recently ended.


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


“Credit Documents” means this Agreement, the
Affirmation and, after the execution and delivery thereof pursuant to the terms
of the Existing Credit Agreement or this Agreement, each Note, the Subsidiary
Guaranty, the Parent Guaranty and each Security Document.


“Credit Party” means the Borrower, each
Subsidiary Guarantor and each Subsidiary Borrower.


“Customer Financing” means third party
financing provided to customers of the Borrower or any of its Subsidiaries to
finance such customers’ purchase of equipment and related products and services
from the Borrower or a Subsidiary thereof.


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


“Designation Letter” means a letter in
substantially the form of Exhibit B hereto.


“Disclosed Matters” means the actions, suits
and proceedings and the environmental matters disclosed in Schedule 3.06.


“Documentation Agents” means, collectively,
Deutsche Bank AG New York Branch, BNP Paribas and U.S. Bank, National
Association, in their capacities as documentation agents.


“Dollars” or “$” means the lawful
currency of the United States.


“Dollar Equivalent” means, on any date of
determination (a) with respect to any amount in Dollars, such amount, and (b)
with respect to any amount in any Foreign Currency, the equivalent in Dollars
of such amount, determined by the Administrative Agent pursuant to Section 1.05
using the Exchange Rate with respect to such Foreign Currency at the time in
effect under the provisions of such Section.



 8
  
 









“Domestic Subsidiary” means, as to any Person,
each subsidiary of such Person that is incorporated under the laws of the
United States, any State thereof or the District of Columbia.


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


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


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


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


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


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


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


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



 9
  
 









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


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


“Eurocurrency”, when used in reference to any
Loan or Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by reference to the
Adjusted LIBO Rate.


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


“Exchange Rate” means on any day, for purposes
of determining the Dollar Equivalent of any currency other than Dollars, the
rate at which such currency may be exchanged into Dollars at the time of
determination on such day on the Reuters Currency pages, if available, for such
currency. In the event that such rate does not appear on any Reuters Currency
pages, the Exchange Rate shall be determined by reference to such other
publicly available service for displaying exchange rates as may be agreed upon
by the Administrative Agent and the Borrowers, or, in the absence of such an
agreement, such Exchange Rate shall instead be the arithmetic average of the
spot rates of exchange of the Administrative Agent in the market where its
foreign currency exchange operations in respect of such currency are then being
conducted, at or about such time as the Administrative Agent shall elect after
determining that such rates shall be the basis for determining the Exchange
Rate, on such date for the purchase of Dollars for delivery two Business Days
later; provided that if at the time of any such determination, for any reason,
no such spot rate is being quoted, the Administrative Agent may use any
reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error.


“Exchange Rate Date” means, if on such date any
outstanding Loan is (or any Loan that has been requested at such time would be)
denominated in a currency other than Dollars, each of:


(a)           the last Business
Day of each calendar month,


(b)           if an Event of
Default has occurred and is continuing, any Business Day designated as an
Exchange Rate Date by the Administrative Agent in its sole discretion, and


(c)           each date (with such
date to be reasonably determined by the Administrative Agent) that is on or
about the date of (i) a Borrowing Request or an Interest Election Request with
respect to any Revolving Borrowing or (ii) each request for the issuance,
amendment, renewal or extension of any Letter of Credit or Swingline Loan.



 10
  















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


“Excluded Transfers” means Intercompany Loans,
contributions, capitalizations and forgiveness made by Credit Parties to (or in
respect of) External Subsidiaries the proceeds of which (or, in the case of
debt forgiveness, the proceeds of the incurrence of debt so forgiven were
initially) used to finance a Permitted Acquisition.


“Existing Credit Agreement” is defined in the
preamble hereto.


“External Subsidiary” means a Wholly-Owned
Subsidiary of the Borrower which is not a Credit Party.


“Factoring Agreement” means a factoring,
receivables purchase or similar agreement which is not entered into in
connection with or as part of a Permitted Securitization or Specified
Transaction.


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


“FIN 46 Subsidiary” means any variable interest
entity which qualifies as a subsidiary of the Borrower only by virtue of being
required by FASB Staff Position No. FIN 46(R)-6 — Determining the Variability
to be Considered in Applying FASB Interpretation No. 46(R) or any related
subsequent accounting standard to be consolidated with the Borrower for
financial accounting purposes.


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



 11
 









“Foreign Cash Equivalents” means certificates
of deposit or bankers’ acceptances of any bank organized under the laws of
Canada or any country that is a member of the European Economic Community,
whose short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof,
in each case with maturities of not more than six months from the date of
acquisition.


“Foreign Currency” means (a) with respect to
any Alternate Currency Loan, any currency acceptable to the Administrative
Agent that is freely available, freely transferable and freely convertible into
Dollars, and agreed to by the applicable Alternate Currency Lenders, (b) with
respect to any Revolving Loan, Euros, Sterling, Canadian Dollars and any other
currency acceptable to the Administrative Agent and each of the Lenders that is
freely available, freely transferable and freely convertible into Dollars and
in which dealings in deposits are carried on in the London interbank market,
(c) with respect to any Letter of Credit, any currency acceptable to the
Administrative Agent that is freely available, freely transferable and freely
convertible into Dollars, and agreed to by the Issuing Bank issuing such Letter
of Credit and (d) with respect to any Swingline Foreign Currency Loan, any
currency acceptable to the Administrative Agent that is freely available,
freely transferable and freely convertible into Dollars, and agreed to by the
Swingline Lender.


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


“Foreign Pension Plan” means any plan, fund
(including, without limitation, any superannuation fund) or other similar
program established or maintained outside the United States by the Borrower or
any one or more of its Subsidiaries primarily for the benefit of employees of
the Borrower or such Subsidiaries residing outside the United States, which
plan, fund or other similar program provides, or results in, retirement income,
a deferral of income in contemplation of retirement or payments to be made upon
termination or severance of employment, and which plan is not subject to ERISA
or the Code.


“Foreign Subsidiary” means, as to any Person,
each Subsidiary of such Person which is not a Domestic Subsidiary.


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


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


“Guarantee” of or by any Person (the “guarantor”)
means any obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other obligation
of any other Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of the guarantor, direct



 12
 









or indirect, (a) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any property constituting direct or indirect security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation
of the payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor or to
advance or supply funds for the foregoing so as to enable the primary obligor
to pay such Indebtedness or other obligation, (d) as an account party in
respect of any letter of credit or letter of guarantee issued to support such
Indebtedness or obligation or (e) otherwise to assure or hold harmless the
owner of such Indebtedness or other obligation against loss in respect thereof;
provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business or Buy-Back
Obligations.


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


“Indebtedness” means, as to any Person, without
duplication, (a) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price
of property or services, (b) the maximum amount available to be drawn under all
letters of credit, bankers’ acceptances and similar obligations issued for the
account of such Person and all unpaid drawings in respect of such letters of
credit, bankers’ acceptances and similar obligations, (c) all indebtedness of
the types described in clause (a), (b), (d), (e), (f), (g), (h) or (i) of this
definition secured by any Lien (or for which the holder of such indebtedness
has an existing right, contingent or otherwise, to be secured by any Lien) on
any property owned by such Person, whether or not such indebtedness has been
assumed by such Person (provided that, if the Person has not assumed or
otherwise become liable in respect of such indebtedness, such indebtedness shall
not be deemed to exceed an amount equal to the fair market value of the
property to which such Lien relates as determined in good faith by such
Person), (d) the aggregate amount of all Capital Lease Obligations of such
Person, (e) all obligations of such Person to pay a specified purchase price
for goods or services, whether or not delivered or accepted, i.e.,
take-or-pay and similar obligations, (f) all Guarantees by such Person, (g) all
obligations under any Swap Agreement or under any similar type of agreement,
(h) all indebtedness of such Person evidenced by bonds, debentures, notes or
similar interests, (i) all indebtedness of such Person under conditional sale
or other title retention agreements relating to property acquired by such
Person and (j) all Receivables Indebtedness. 
Notwithstanding the foregoing, Indebtedness shall not include trade
payables, deferred compensation obligations, customer advances and other
accrued expenses incurred by any Person in accordance with customary practices
and in the ordinary course of business of such Person or Buy-Back
Obligations.  The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such
Person is liable therefor as a result of such Person’s ownership interest in or
other relationship with such entity, except to the extent the terms of such
Indebtedness provide that such person is not liable therefor.



 13
 









“Indemnified Taxes” means Taxes other than Excluded
Taxes.


“Information Memorandum” means the Confidential
Information Memorandum dated May, 2005 relating to the Borrower and the
Transactions.


“Intercompany Loan” shall have the meaning
provided in Section 6.05(i).


“Intercompany Note” means each of the existing
intercompany notes listed on Schedule 1.02 and each promissory note issued on
or after the Original Effective Date, in the form of Exhibit C, evidencing
Intercompany Loans.


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


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


“Interest Period” means (a) with respect to any
Eurocurrency Borrowing, the period commencing on the date of such Borrowing and
ending on the numerically corresponding day in the calendar month that is one,
two, three or six months (or, with the consent of each Lender, nine or twelve
months) thereafter, as the Borrower may elect, and (b) as to any Swingline
Foreign Currency Loan, the period commencing on the date of such Loan and
ending on the day that is designated in the notice delivered pursuant to
Section 2.04 with respect to such Swingline Foreign Currency Loan, which shall
not be later than thirty days thereafter; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the
case of a Eurocurrency Borrowing only, such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end
on the next preceding Business Day and (ii) any Interest Period pertaining to a
Eurocurrency Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period.  For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter
shall be the effective date of the most recent conversion or continuation of
such Borrowing.


“Investment” has the meaning assigned to such
term in Section 6.05.


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



 14
 









“JPMorgan” means JPMorgan Chase Bank, N.A., a
national banking association, and its successors.


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


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


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


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


“LIBO Rate” means, with respect to any
Eurocurrency Borrowing for any Interest Period, the rate per annum determined
by the Administrative Agent at approximately 11:00 a.m., London time, on the
Quotation Day for such Interest Period by reference to the British Bankers’
Association Interest Settlement Rates for deposits in the currency of such
Borrowing (as reflected on the applicable Telerate screen page), for a period
equal to such Interest Period; provided that, to the extent that an
interest rate is not ascertainable pursuant to the foregoing provisions of this
definition, the “LIBO Rate” shall be the rate at which JPMorgan offers to place
deposits in the currency of such Borrowing for such Interest Period to
first-class banks in the London interbank market at approximately 11:00 a.m.,
London time, on the Quotation Day for such Interest Period.


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


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


“Local Time” means (a) with respect to a Loan
or Borrowing denominated in Dollars, New York City time and (b) with respect to
a Loan or Borrowing denominated in any Foreign Currency, London time.


“Margin Stock” shall have the meaning provided
in Regulation U.



 15
 









“Material Adverse Effect” means a material
adverse effect on (a) the business, assets, operations or financial condition
of the Borrower and its Subsidiaries taken as a whole, (b) the ability of the
Borrower or of the Credit Parties taken as a whole to perform any of their
repayment or other material obligations under the Credit Documents or (c) the
rights or remedies of the Administrative Agent, the Collateral Agent or the
Lenders under the Credit Documents.


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


“Material Subsidiary” means a Subsidiary of the
Borrower which has or acquires assets having a fair market value in excess of
$1,000,000 or which generated in excess of $1,000,000 of net income over the
four fiscal quarter period most recently ended prior to the time of
computation, but excluding Grove Australia Pty. Ltd.


“Maturity Date” means June 10, 2010.


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


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


“Obligations” means all liabilities and
obligations, whether actual or contingent, of any Credit Party to the
Administrative Agent, the Collateral Agent, the Issuing Bank, the Swingline
Lender, the Alternate Currency Lenders, any Lender or any indemnified party
hereunder or under any other Credit Document, in each case arising under any
Credit Document.


“Offsetting Cash Amount” means an amount equal
to (a) the aggregate stated balance sheet amount of (i) all cash, Cash
Equivalents and Foreign Cash Equivalents of the Borrower and its Wholly-Owned
Domestic Subsidiaries and (ii) up to $75,000,000 of the Dollar Equivalent
amount of cash, Cash Equivalents and Foreign Cash Equivalents of Wholly-Owned
Foreign Subsidiaries minus (b) $10,000,000.


“Original Effective Date” means June 10, 2005.


“Other Taxes” means any and all present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to, this
Agreement.


“Parent Guaranty” means that certain guaranty
dated as of the Original Effective Date made by the Borrower in favor of the
Secured Creditors, as the same may be amended, restated, modified or
supplemented from time to time.



 16
 









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


“Participating Lender” means, with respect to
any Alternate Currency Borrowing, a Lender which is not an Alternate Currency
Lender with respect to such Borrowing.


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


“Permitted Acquisition” means the acquisition
by the Borrower or a Wholly-Owned Subsidiary thereof of an Acquired Entity or
Business (including by way of merger of such Acquired Entity or Business with
and into the Borrower (so long as the Borrower is the surviving corporation) or
a Wholly-Owned Subsidiary thereof (so long as the survivor of such merger is a
Wholly-Owned Subsidiary)); provided that, in each case, (a) the
consideration paid or to be paid by the Borrower or such Wholly-Owned
Subsidiary consists solely of cash (including proceeds of Revolving Loans or
Swingline Loans), the issuance or incurrence of Indebtedness otherwise
permitted by Section 6.01, the issuance of common stock of the Borrower or
Qualified Preferred Stock of the Borrower in each case to the extent no Default
or Event of Default exists pursuant to clause (m) of Article VII or would
result therefrom and the assumption/acquisition of any Indebtedness (calculated
at face value) which is permitted to remain outstanding in accordance with the
requirements of Section 6.01, (b) in the case of the acquisition of 100% of the
capital stock of any Person (including by way of merger), such Person shall own
no capital stock of any other Person (excluding de minimis
amounts) unless either (i) such Person owns 100% of the capital stock of such
other Person or (ii) (x) such Person and its Wholly-Owned Subsidiaries own at
least 80% of the consolidated assets of such other Person and its Subsidiaries
and (y) any non-Wholly-Owned Subsidiary of such Person was a non-Wholly-Owned
Subsidiary prior to the date of such Permitted Acquisition of such Person, (c)
the Acquired Entity or Business acquired pursuant to the respective Permitted
Acquisition is in a business permitted by Section 6.03(b) and (d) all
applicable requirements of Sections 6.03 and 6.05(m) applicable to Permitted
Acquisitions are satisfied.


“Permitted Liens” has the meaning assigned to
such term in Section 6.02.


“Permitted Securitization” means any
receivables financing program providing for the sale of accounts receivable and
related rights by the Borrower or its Subsidiaries to an SPC for cash in
transactions purporting to be sales (and treated as sales for GAAP purposes),
which SPC shall finance the purchase of such assets by the sale, transfer,
conveyance, lien or pledge of such assets to one or more limited purpose
financing companies, special purpose entities and/or other financial
institutions, in each case pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent.  Specified Transactions and related transfers
of accounts receivable shall not constitute or be deemed part of a Permitted
Securitization.


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


“Plan” means any employee pension benefit plan
(other than a Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section 412 of the Code or Section 302



 17
 









of ERISA, and in respect
of which the Borrower or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.


“Pledge Agreement” means the Pledge Agreement
dated as of the Original Effective Date made by certain of the Credit Parties
in favor of the Collateral Agent for the benefit of the Secured Creditors, as
the same may be amended, restated, modified or supplemented from time to time.


“Pledge Agreement Collateral” means all “Collateral”
as defined in the Pledge Agreement.


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


“Pro Forma Basis” means, in connection with any
calculation of compliance with any financial covenant or financial term, the
calculation thereof after giving effect on a pro forma basis to (a) the
incurrence of any Indebtedness (other than revolving Indebtedness, except to
the extent same is incurred to refinance other outstanding Indebtedness or to
finance a Permitted Acquisition) after the first day of the relevant
calculation period as if such Indebtedness had been incurred (and the proceeds
thereof applied) on the first day of the relevant calculation period, (b) the
permanent repayment of any Indebtedness (other than revolving Indebtedness)
after the first day of the relevant calculation period as if such Indebtedness
had been retired or redeemed on the first day of the relevant calculation
period and (c) the Permitted Acquisition, if any, then being consummated as
well as any other Permitted Acquisition consummated after the first day of the
relevant calculation period and on or prior to the date of the respective
Permitted Acquisition then being effected, as the case may be, with the following
rules to apply in connection therewith:


(i)            all Indebtedness (x) (other than
revolving Indebtedness, except to the extent same is incurred to refinance
other outstanding Indebtedness or to finance a Permitted Acquisition) incurred
or issued after the first day of the relevant calculation period (whether
incurred to finance a Permitted Acquisition, to refinance Indebtedness or
otherwise) shall be deemed to have been incurred or issued (and the proceeds
thereof applied) on the first day of the respective calculation period and
remain outstanding through the date of determination and (y) (other than
revolving Indebtedness) permanently retired or redeemed after the first day of
the relevant calculation period shall be deemed to have been retired or
redeemed on the first day of the respective calculation period and remain
retired through the date of determination;


(ii)           all Indebtedness assumed to be
outstanding pursuant to preceding clause (i) shall be deemed to have borne
interest at (x) the rate applicable thereto, in the case of fixed rate
indebtedness or (y) the rates which would have been applicable thereto during
the respective period when same was deemed outstanding, in the case of floating
rate Indebtedness (although interest expense with respect to any Indebtedness
for periods



 18
 









while same was
actually outstanding during the respective period shall be calculated using the
actual rates applicable thereto while same was actually outstanding); and


(iii)          in making any determination of
Consolidated EBITDA, pro forma effect shall be given to any Permitted
Acquisition consummated during the periods described above, with such
Consolidated EBITDA to be determined as if such Permitted Acquisition was
consummated on the first day of the relevant calculation period, taking into
account factually supportable and identifiable cost savings and expenses which
would otherwise be permitted to be accounted for as an adjustment pursuant to
Article 11 of Regulation S-X under the Securities Act, as if such cost savings
or expenses were realized on the first day of the respective calculation
period.


“Qualified Preferred Stock” means any preferred
stock of the Borrower so long as the terms of any such preferred stock (a) do
not contain any mandatory put, redemption, repayment, sinking fund or other
similar provision, (b) do not require the cash payment of dividends or
distributions, (c) do not contain any covenants, (d) do not grant the holders
thereof any voting rights except for (i) voting rights required to be granted
to such holders under applicable law and (ii) limited customary voting rights
on fundamental matters such as mergers, consolidations, sales of all or
substantially all of the assets of the Borrower, or liquidations involving the
Borrower and (e) are otherwise reasonably satisfactory to the Administrative
Agent.


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


“Real Property” of any Person means all the
right, title and interest of such Person in and to land, improvements and
fixtures.


“Receivables Indebtedness” means, at any time,
sum of (a) the aggregate amount of uncollected accounts receivables of the Borrower
and its Subsidiaries at such time which have been (or which are then being)
sold pursuant to a Factoring Agreement plus (b) without duplication, the
aggregate amount of outstanding obligations incurred by the Borrower and its
Subsidiaries (including any SPC) in connection with a Permitted Securitization
that would be characterized as principal if such Permitted Securitization in
its entirety were structured as a secured lending transaction rather than a
purchase (regardless, in either case, of whether any liability of the Borrower
or any Subsidiary thereof in respect of related accounts receivable would be
required to be reflected on a balance sheet of such Person in accordance with
generally accepted accounting principles).


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


“Regulation T” means Regulation T of the Board
as from time to time in effect and any successor to all or a portion thereof.



 19
 









“Regulation U” means Regulation U of the Board
as from time to time in effect and any successor to all or a portion thereof.


“Regulation X” means Regulation X of the Board
as from time to time in effect and any successor to all or a portion thereof.


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


“Release” means the active or passive
disposing, discharging, injecting, spilling, pumping, leaking, leaching,
dumping, emitting, escaping, emptying, pouring, seeping, migrating or the like,
into or upon any land or water or air, or otherwise entering into the
environment.


“Rental Fleet” means all crane products owned
by the Borrower or its Subsidiaries which are (a) included in the consolidated
balance sheet of the Borrower and (b) for which the current business purpose is
to rent such crane products to customers under operating leases.  GAAP restatement equipment and sale-leaseback
equipment shall not be included in the Rental Fleet.


“Required Lenders” means, at any time, Lenders
having Revolving Credit Exposures and unused Commitments representing at least
50.1% of the sum of the total Revolving Credit Exposures and unused Commitments
at such time.


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


“Restructuring Transactions” means,
collectively, the transactions described in the letter dated December 7, 2006
from the Borrower’s Vice President—Finance on behalf of the Borrower addressed
to the Administrative Agent and the Lenders regarding a proposed restructuring
of various Foreign Subsidiaries of the Borrower.


“Restructuring Transactions Loans” means the
Loan or Loans advanced on or before December 31, 2006 in connection with the
Restructuring Transactions.


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


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


“S&P” means Standard & Poor’s.



 20















“Sale-Leaseback Differential” means, with
respect to any fiscal quarter end of the Borrower, the excess, if any, of (a)
rent or other payments made by the Borrower or its Subsidiaries during the
period of four fiscal quarters then ended to lessors pursuant to Sale-Leaseback
Transactions over (b) the amount of rent or other payments received during such
four fiscal quarter period by the Borrower or its Subsidiaries in their
capacity as lessors of equipment which was the subject of a Sale-Leaseback
Transaction.


“Sale-Leaseback Transaction” means a
sale-leaseback transaction entered into by the Borrower or its Subsidiaries in
the ordinary course of business and on a basis consistent with past practice
with one or more financial institutions as lessor pursuant to which the
Borrower or its Subsidiaries sells crane products to such lessor for cash and
such lessor subsequently leases back such crane products to the Borrower or its
Subsidiaries.


“Sale Restructuring” means, collectively, the
transactions described in the letter dated December 7, 2006 from the Borrower’s
Vice President—Finance on behalf of the Borrower addressed to the
Administrative Agent and the Lenders regarding a proposed restructuring of
certain Domestic Subsidiaries of the Borrower in connection with the Sale
Transaction.


“Sale Transaction” means the consummation of
the sale by  a Wholly-Owned Subsidiary of
the Borrower of all of the stock of a Subsidiary previously disclosed in
writing by the Borrower to the Administrative Agent.


“Secured Creditors” shall have the meaning
assigned that term in the respective Security Documents.


“Security Agreement” means the Security
Agreement dated as of the Original Effective Date made by the Credit Parties in
favor of the Collateral Agent for the benefit of the Secured Creditors, as the
same may be amended, restated, modified or supplemented from time to time.


“Security Agreement Collateral” means all “Collateral”
as defined in the Security Agreement.


“Security Documents” means and includes each of
the Security Agreement, the Pledge Agreement, the Pledge Agreement (Acte de
Nantissement de Compte d’Instruments Financiers) dated as of the Original
Effective Date made by Manitowoc FP, Inc. in favor of the Collateral Agent for
the benefit of the Secured Creditors, after the execution and delivery thereof,
each Additional Security Document and each other document or instrument
pursuant to which security is granted to the Collateral Agent for the benefit
of the Secured Creditors pursuant hereto.


“Senior Note Documents” means the Senior Note
Indenture and all other documents executed and delivered with respect to the
Senior Notes or Senior Note Indenture as in effect on the Effective Date and as
the same may be amended, modified or supplemented from time to time in accordance
with the terms hereof and thereof.


“Senior Note Indenture” means the Indenture
dated as of November 6, 2003, among the Borrower and the other parties thereto,
as in effect on the Effective Date and as the 



 21
 









same may be amended,
modified or supplemented from time to time in accordance with the terms hereof
and thereof.


“Senior Notes” means the Borrower’s 7-1/8%
Senior Notes due 2013, issued pursuant to the Senior Note Indenture, as in
effect on the Effective Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.


“SPC” means a special purpose,
bankruptcy-remote Person formed for the sole and exclusive purpose of engaging
in activities in connection with the purchase, sale and financing of accounts
receivable and related rights in connection with and pursuant to a Permitted
Securitization.


“Specified Transaction” means a customer
financing transaction which occurs in the ordinary course of business of the
Borrower or its Subsidiaries, which involves a credit extension of more than
ninety days and which involves an assignment of the applicable receivable by
the Borrower or its Subsidiaries to a third party lender.


“Statutory Reserve Rate” means a fraction
(expressed as a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject (a) with respect to the Base CD Rate, for new
negotiable nonpersonal time deposits in Dollars of over $100,000 with
maturities approximately equal to three months and (b) with respect to the
Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). 
Such reserve percentages shall include those imposed pursuant to such
Regulation D.  Eurocurrency Loans shall
be deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D
or any comparable regulation.  The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.


“Sterling” or “£” means the lawful
currency of the United Kingdom of Great Britain and Northern Ireland.


“Subordinated Note Documents” means the Subordinated
Notes, the Subordinated Note Indenture and all other documents executed and
delivered with respect to the Subordinated Notes or Subordinated Note
Indenture, as in effect on the Effective Date and as the same may be amended,
modified or supplemented from time to time in accordance with the terms hereof
and thereof.


“Subordinated Note Indenture” means the
Indenture, dated as of August 8, 2002, among the Borrower and the other parties
thereto, as in effect on the Effective Date and as the same may be amended,
modified or supplemented from time to time in accordance with the terms hereof
and thereof.



 22
 









“Subordinated Notes” means the Borrower’s
10-1/2% Senior Subordinated Notes due 2012, issued pursuant to the Subordinated
Note Indenture, each as in effect on the Effective Date and as the same may be
amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof.


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


“Subsidiary” means
any subsidiary of the Borrower other than a FIN 46 Subsidiary.


“Subsidiary Borrower” means each Wholly-Owned
Foreign Subsidiary designated as such by the Borrower pursuant to Section 2.20.


“Subsidiary Guarantor” means each Subsidiary of
the Borrower which is a party to the Subsidiary Guaranty.


“Subsidiary Guaranty” means the Subsidiary
Guaranty dated as of the Original Effective Date made by the Subsidiaries party
thereto in favor of the Secured Creditors, as the same may be amended,
restated, modified or supplemented from time to time.  The Subsidiary Guarantors initially party to
the Subsidiary Guaranty are so designated on Schedule 3.13 hereto.


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


“Swingline Dollar Loan” means a Swingline Loan
denominated in Dollars.


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


“Swingline Foreign Currency Loan” means a
Swingline Loan denominated in a Foreign Currency.



 23
 









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


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


“Syndication Agent” means Bank of America, N.A.
in its capacity as syndication agent.


“Tax Sharing Agreements” means all tax sharing,
tax allocation and other similar agreements entered into by the Borrower or any
of its Subsidiaries.


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


“Termination Letter” means a letter in
substantially the form of Exhibit D hereto.


“Three Month Secondary CD Rate” means, for any
day, the secondary market rate for three month certificates of deposit reported
as being in effect on such day (or, if such day is not a Business Day, the next
preceding Business Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under the
current practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day) or, if such rate is not
so reported on such day or such next preceding Business Day, the average of the
secondary market quotations for three month certificates of deposit of major
money center banks in New York City received at approximately 10:00 a.m., New
York City time, on such day (or, if such day is not a Business Day, on the next
preceding Business Day) by the Administrative Agent from three negotiable
certificate of deposit dealers of recognized standing selected by it.


“Transactions” means the execution, delivery
and performance by the Credit Parties of the Credit Documents, the borrowing of
Loans, the use of the proceeds thereof, and the issuance of Letters of Credit
hereunder and the consummation of the other transactions contemplated by the
Credit Documents.


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


“UCC” means the Uniform Commercial Code as from
time to time in effect in the relevant jurisdiction.


“United States” means the United States of
America.


“Wholly-Owned Domestic Subsidiary” means each
Domestic Subsidiary of the Borrower that is also a Wholly-Owned Subsidiary of
the Borrower.


“Wholly-Owned Foreign Subsidiary” means each Foreign
Subsidiary of the Borrower that is also a Wholly-Owned Subsidiary of the
Borrower.



 24
 









“Wholly-Owned Subsidiary” means, as to any
Person, (a) any corporation 100% of whose capital stock is at the time owned by
such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (b)
any partnership, limited liability company, association, joint venture or other
entity in which such Person and/or one or more Wholly-Owned Subsidiaries of
such Person has a 100% equity interest at such time (other than, in the case of
a Foreign Subsidiary with respect to preceding clauses (a) and (b), director’s
qualifying shares and/or other nominal amount of shares required to be held by
Persons other than the Borrower and its Subsidiaries under applicable law).


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


SECTION 1.02.      Classification
of Loans and Borrowings.  For
purposes of this Agreement, Loans may be classified and referred to by Class (e.g.,
a “Revolving Loan”) or by Type (e.g., a “Eurocurrency Loan”) or by Class
and Type (e.g., a “Eurocurrency Revolving Loan”).  Borrowings also may be classified and
referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g.,
a “Eurocurrency Borrowing”) or by Class and Type (e.g., a “Eurocurrency
Revolving Borrowing”).


SECTION 1.03.      Terms
Generally.  The definitions of terms
herein shall apply equally to the singular and plural forms of the terms
defined.  Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms.  The words “include”, “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation”.  The word “will” shall be
construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (c) the words “herein”, “hereof”
and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be construed
to refer to Articles and Sections of, and Exhibits and Schedules to, this
Agreement and (e) the words “asset” and “property” shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract
rights.


SECTION 1.04.      Accounting
Terms; GAAP.  Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect 



 25
 









and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.


SECTION 1.05.      Foreign
Currency Calculations.


(a)           For
purposes of determining the Dollar Equivalent of any Advance denominated in a
Foreign Currency or any related amount, the Administrative Agent shall
determine the Exchange Rate as of the applicable Exchange Rate Date with
respect to each Foreign Currency in which any requested or outstanding Advance
is denominated and shall apply such Exchange Rates to determine such amount (in
each case after giving effect to any Advance to be made or repaid on or prior
to the applicable date for such calculation).


(b)           For
purposes of any determination under Article VI or Article VII, all amounts
incurred, outstanding or proposed to be incurred or outstanding in currencies
other than Dollars shall be translated into Dollars at the currency exchange
rates in effect on the date of such determination; provided that no
Default shall arise as a result of any limitation set forth in Dollars in
Section 6.01 or 6.02 being exceeded solely as a result of changes in currency
exchange rates from those rates applicable at the time or times Indebtedness or
Liens were initially consummated in reliance on the exceptions under such
Sections. For purposes of any determination under Section 6.04 or 6.09, the
amount of each investment, asset disposition or other applicable transaction
denominated in a currency other than Dollars shall be translated into Dollars
at the currency exchange rate in effect on the date such investment,
disposition or other transaction is consummated. Such currency exchange rates
shall be determined in good faith by the Borrower.


SECTION 1.06.      Redenomination
of Certain Foreign Currencies.


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


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



 26
 









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


ARTICLE
II


The
Credits


SECTION 2.01.      Commitments.  Subject to the terms and conditions set forth
herein, each Lender severally agrees to make revolving Loans denominated in
Dollars and Foreign Currencies to the Borrowers from time to time during the
Availability Period in an aggregate principal amount that will not result in
(a) such Lender’s Revolving Credit Exposure exceeding such Lender’s Commitment,
(b) the sum of the total Revolving Credit Exposures exceeding the total
Commitments, (c) the Dollar Equivalent of the aggregate amount of all Revolving
Loans, Letters of Credit, Alternate Currency Loans and Swingline Loans
denominated in Foreign Currency exceeding $200,000,000 (or, solely prior to
December 31, 2006 and in connection with the Restructuring Transactions,
$250,000,000) or (d) the Dollar Equivalent of the aggregate amount of all Revolving
Loans and Alternate Currency Loans to Subsidiary Borrowers exceeding
$200,000,000 (or, solely prior to December 31, 2006 and in connection with the
Restructuring Transactions, $250,000,000). 
Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans.


SECTION 2.02.      Loans
and Borrowings.


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


(b)           Subject
to Section 2.14, (i) each Revolving Borrowing denominated in Dollars shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower may
request in accordance herewith and (ii) each Revolving Borrowing denominated in
a Foreign Currency shall be comprised entirely of Eurocurrency Loans.  Each Swingline Dollar Loan shall be an ABR
Loan and each Swingline Foreign Currency Loan shall bear interest at such rate
agreed to between the Borrower and the Swingline Lender.  Each Lender at its option may make any
Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.


(c)           At
the commencement of each Interest Period for any Eurocurrency Revolving
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $100,000 and not less than $1,000,000.  At the time that each ABR Revolving Borrowing
is made, such Borrowing shall be in an aggregate amount that is an integral
multiple of $100,000 and not less than $1,000,000; provided that an ABR
Revolving Borrowing may be 



 27
 









in an aggregate amount that is equal to the entire unused balance of
the total Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.06(e).  Each Swingline Loan shall be in an amount that
is an integral multiple of $100,000 and not less than $100,000.  Borrowings of more than one Type and Class
may be outstanding at the same time; provided that there shall not at
any time be more than a total of 8 Eurocurrency Revolving Borrowings outstanding.


(d)           Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Maturity Date.


(e)           Notwithstanding
any other provision of this Agreement, each Lender at its option may make any
ABR Loan or Eurocurrency Loan by causing any domestic or foreign office, branch
or Affiliate of such Lender (an “Applicable Lending Installation”) to
make such Loan that has been designated by such Lender to the Administrative
Agent.  All terms of this Agreement shall
apply to any such Applicable Lending Installation of such Lender and the Loans
and any Notes issued hereunder shall be deemed held by each Lender for the
benefit of any such Applicable Lending Installation.  Each Lender may, by written notice to the
Administrative Agent and the Borrower, designate replacement or additional
Applicable Lending Installations through which Loans will be made by it and for
whose account Loan payments are to be made.


SECTION 2.03.      Requests
for Revolving Borrowings.  To request
a Revolving Borrowing, the Borrower shall notify the Administrative Agent of
such request by telephone (a) in the case of a Eurocurrency Borrowing denominated
in Dollars, not later than 12:00 noon, New York City time, three Business Days
before the date of the proposed Borrowing, (b) in the case of a Eurocurrency
Borrowing denominated in a currency other than Dollars, not later than 12:00
noon, New York City time, four Business Days before the date of the proposed
Borrowing or (c) in the case of an ABR Borrowing, not later than 11:00 a.m.,
New York City time, one Business Day before the date of the proposed Borrowing;
provided that any such notice of an ABR Revolving Borrowing to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.06(e) may
be given not later than 10:00 a.m., New York City time, on the date of the
proposed Borrowing.  Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative Agent and signed by the Borrower.  Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:


(i)            the identity of the
Applicable Borrower;


(ii)           the aggregate
amount of the requested Borrowing;


(iii)          the currency (which
may be Dollars or a Foreign Currency) in which such Borrowing is to be
denominated;


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


(v)           in the case of a
Borrowing denominated in Dollars, whether such Borrowing is to be an ABR
Borrowing or a Eurocurrency Borrowing;



 28
 









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


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


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


SECTION 2.04.      Alternate
Currency Loans.


(a)           Subject
to the terms and conditions set forth herein, each Alternate Currency Lender
agrees to make revolving Loans denominated in Foreign Currency to the Borrowers
from time to time during the Availability Period, in an aggregate principal
amount at any time outstanding that will not result in (i) such Lender’s
Revolving Credit Exposure exceeding such Lender’s Commitment, (ii) the sum of
the total Revolving Credit Exposures exceeding the total Commitments, (iii) the
Dollar Equivalent of the aggregate amount of all Revolving Loans, Letters of
Credit, Swingline Loans and Alternate Currency Loans denominated in Foreign
Currency exceeding $200,000,000 (or, solely prior to December 31, 2006 and in
connection with the Restructuring Transactions, $250,000,000) or (iv) the
Dollar Equivalent of the aggregate amount of all Revolving Loans and Alternate
Currency Loans to Subsidiary Borrowers exceeding $200,000,000 (or, solely prior
to December 31, 2006 and in connection with the Restructuring Transactions,
$250,000,000).  Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrowers
may borrow, prepay and reborrow Alternate Currency Loans.


(b)           Each
Alternate Currency Loan shall be made as part of a Borrowing consisting of
Alternate Currency Loans made by the applicable Alternate Currency Lenders,
with the Alternate Currency Loan of each Alternate Currency Lender (other than
the Alternate Currency Fronting Lender) being in an amount equal to its
Applicable Percentage of the applicable Borrowing and the Alternate Currency
Loan of the Alternate Currency Fronting Lender being in an amount equal to the
aggregate amount of such Borrowing less the aggregate amount of the Alternate
Currency Loans being made by the other Alternate Currency Lenders and
comprising part of such Borrowing.  The
Alternate Currency Loans shall be Eurocurrency Loans.  The principal of and interest on each
Alternate Currency Borrowing shall be paid in the applicable currency for such
Alternate Currency Borrowing and shall be paid to the Administrative Agent for
the ratable (relative to Loans made as a part of such Borrowing) account of the
Alternate Currency Lenders.  Each
Alternate Currency Borrowing and continuation thereof shall be in a minimum
aggregate amount reasonably acceptable to the Administrative Agent and the
Alternate Currency Fronting Lender.



 29
 









(c)           To
request an Alternate Currency Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, London time, three (or, if so requested by the Alternate
Currency Fronting Lender with respect to Alternate Currency Loans in a
specified currency, four) Business Days before the date of the proposed
Alternate Currency Loan.  Each such
notice shall be irrevocable and shall specify (i) the identity of the
Applicable Borrower, (ii) the requested date (which shall be a Business Day),
(iii) the Foreign Currency in which such Alternate Currency Loan is to be
denominated, (iv) the amount of the requested Alternate Currency Loan, and (v)
the Interest Period requested to be applicable thereto, which shall be a period
contemplated by clause (a) of the definition of the term “Interest Period”.  The Administrative Agent will promptly advise
the applicable Alternate Currency Lenders of any such notice received from the
Borrower.


(d)           The
applicable Alternate Currency Lenders shall make each Alternate Currency Loan
to be made by them hereunder on the proposed date thereof by wire transfer of
immediately available funds by 3:00 p.m., Local Time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the applicable Alternate Currency Lenders. 
The Administrative Agent will make such Alternate Currency Loans
available to the Applicable Borrower by promptly crediting the amounts so
received, in like funds, to an account of the Applicable Borrower designated by
the Borrower in the applicable Borrowing Request and acceptable to the
Administrative Agent.


(e)           Except
as the Applicable Borrower and the applicable Alternate Currency Lenders may
otherwise agree, Alternate Currency Loans may, at the conclusion of the
Interest Period applicable thereto, be continued in the manner (to the extent
applicable) set forth in Section 2.08 with respect to Revolving Loan
Borrowings.  If the Applicable Borrower
fails to either repay an Alternate Currency Loan on or before the last day of
the applicable Interest Period or deliver a timely continuation request as set
forth in Section 2.08(b), the applicable Borrowing shall be continued with an
Interest Period of one month’s duration commencing on the last day of the
expiring Interest Period.


(f)            The
Alternate Currency Fronting Lender irrevocably agrees to grant and hereby
grants to each Participating Lender and, to induce the Alternate Currency
Fronting Lender to make Alternate Currency Loans hereunder, each Participating
Lender irrevocably agrees to accept and purchase and hereby accepts and
purchases from the Alternate Currency Fronting Lender, on the terms and
conditions set forth below, for such Lender’s own account and risk, an
undivided risk participation interest equal to such Participating Lender’s
Applicable Participation Percentage of the Alternate Currency Fronting Lender’s
obligations and rights in respect of each Alternate Currency Loan made by or
assigned to the Alternate Currency Fronting Lender hereunder as to which such
Lender is a Participating Lender.  Each
Participating Lender unconditionally and irrevocably agrees with the Alternate
Currency Fronting Lender that if any amount in respect of the principal,
interest or fees owing to the Alternate Currency Fronting Lender in respect of
an applicable Alternate Currency Loan is not paid when due in accordance with
the terms of this Agreement, such Participating Lender shall pay to the
Alternate Currency Fronting Lender upon demand an amount in Dollars (with the
Dollar Equivalent of the unpaid amount of such Alternate Currency Loan to be
calculated by the Administrative Agent) equal to such Lender’s Applicable
Participation Percentage of such unpaid amount. 
Each Participating Lender acknowledges and agrees that its payment
obligation pursuant to this paragraph is 



 30
 









absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.  If the Alternate Currency
Fronting Lender accepts an assignment pursuant to Section 9.04(b) of one or
more Alternate Currency Loans, the Applicable Participation Percentages of the
Participating Lenders with respect to such Loans will be adjusted as applicable
immediately upon such assignment taking effect.


(g)           If
any amount required to be paid by any Participating Lender to the Alternate
Currency Fronting Lender pursuant to this Section 2.04 is not made available to
the Alternate Currency Fronting Lender when due, such Participating Lender
shall pay to the Alternate Currency Fronting Lender, on demand, such amount
with interest thereon at a rate equal to the greater of the daily average
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation for the
period until such Lender makes such amount immediately available to the
Alternate Currency Fronting Lender.  If
such amount is not made available to the Alternate Currency Fronting Lender by
such Participating Lender within three Business Days of such due date, the
Alternate Currency Fronting Lender shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to ABR Loans, on
demand.  A certificate of the Alternate
Currency Fronting Lender submitted to any Lender with respect to any amounts
owing under this Section 2.04 shall be conclusive in the absence of manifest
error.


(h)           Whenever,
at any time after the Alternate Currency Fronting Lender has received from any
Participating Lender the full amount owing by such Lender pursuant to and in
accordance with this Section 2.04 in respect of any Alternate Currency Loan,
the Alternate Currency Fronting Lender receives any payment related to such
Alternate Currency Loan (whether directly from any Borrower or otherwise,
including proceeds of collateral applied thereto by the Alternate Currency
Fronting Lender or the Administrative Agent, on behalf of the Alternate
Currency Fronting Lender), or any payment of interest on account thereof, the
Alternate Currency Fronting Lender will distribute to such Participating Lender
its pro rata share thereof (and hereby directs the Administrative Agent to
remit such pro rata share to such Lender out of any such payment received by
the Administrative Agent for the account of the Alternate Currency Fronting
Lender).


(i)            If
any payment received by the Alternate Currency Fronting Lender pursuant to this
Section 2.04 with respect to any Alternate Currency Loan made by it shall be
required to be returned by the Alternate Currency Fronting Lender, each
Participating Lender with respect to such Loan shall pay to the Alternate
Currency Fronting Lender its Applicable Participation Percentage thereof.


(j)            All
outstanding Alternate Currency Loans shall be due and payable, to the extent
not previously paid in accordance with the terms hereof, on the Maturity Date.


(k)           Following
the date on which any risk participation with respect to an Alternate Currency
Loan is converted to Dollars pursuant to Section 2.04(f), all amounts payable
in connection with such risk participation shall be denominated in Dollars for
all purposes.


 



 31















(l)            At the request of
the Borrower, and with the consent of the applicable Lender(s) (which may be
withheld by any Lender in its sole discretion), one or more Lenders in addition
to JPMorgan shall be deemed to be Alternate Currency Lenders with respect to Alternate
Currency Loans proposed to be made to a specified Subsidiary Borrower.  As of the “Effective Date” of Amendment No. 2
to the Existing Credit Agreement, the Lenders set forth on Schedule 2.04 hereto
were requested to act and designated by the Borrower as, and agreed (which
agreement is hereby confirmed) to act as, Alternate Currency Lenders with
respect to Alternate Currency Loans to be made to BPGR.  Any Alternate Currency Lender may comply with
its obligations as such by causing an Applicable Lending Installation to
perform such obligations as contemplated by Section 2.02(e), and the terms of
this Agreement shall be applicable to such Applicable Lending Installation as
set forth in Section 2.02(e).


(m)          In the event that any
Lender acting as an Alternate Currency Lender pursuant to Section 2.04(l) makes
an assignment pursuant to Section 9.04(b) of all or a part of its Commitment to
a Lender which determines in good faith and notifies the Administrative Agent
that lending to the applicable Subsidiary Borrower would be illegal, impossible
or impracticable for such Lender or would result in costs or expenses for which
such Lender would not be indemnified by the Subsidiary Borrower or the Borrower
pursuant hereto, then (i) the applicable assignee Lender shall not be an
Alternate Currency Lender with respect to such Subsidiary Borrower and (ii) at
the written request of the assignee Lender made at least five (5) Business Days
prior to the date of the proposed assignment, the Borrower shall cause all Alternate
Currency Loans outstanding to the applicable Subsidiary Borrower to be repaid
in full prior to or substantially contemporaneously with the making of such
assignment (it being understood that, following or contemporaneously with such
repayment, the applicable Subsidiary Borrower shall, subject to the other terms
and conditions hereof, be entitled to reborrow such Alternate Currency Loans
from the remaining applicable Alternate Currency Lenders); provided that in the
event the Alternate Currency Fronting Lender in its sole discretion accepts an
assignment of such assigning Lender’s Alternate Currency Loans to such
Subsidiary Borrower, the repayment described in this clause (ii) shall not be
required.


SECTION 2.05.      Swingline
Loans.


(a)           Subject to the terms
and conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans in Dollars or in a Foreign Currency to the Borrower from time to time
during the Availability Period, in an aggregate principal amount at any time
outstanding that will not result in (i) the Dollar Equivalent of the aggregate
principal amount of outstanding Swingline Loans exceeding $25,000,000 (or,
solely prior to December 31, 2006 and in connection with the Restructuring
Transaction, $250,000,000), (ii) the sum of the total Revolving Credit
Exposures exceeding the total Commitments or (iii) the Dollar Equivalent of the
aggregate amount of all Revolving Loans, Letters of Credit, Swingline Loans and
Alternate Currency Loans denominated in Foreign Currency exceeding $200,000,000
(or, solely prior to December 31, 2006 and in connection with the Restructuring
Transactions, $250,000,000); provided that the Swingline Lender shall
not be required to make a Swingline Loan to refinance an outstanding Swingline
Loan.  Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Swingline Loans.



 32
 









(b)           To request a
Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 2:00 p.m., New
York City time, on the day of a proposed Swingline Loan in the case of
Swingline Loans denominated in Dollars and not later than 10:00 a.m., Local
Time on the day of any other proposed Swingline Loan.  Each such notice shall be irrevocable and
shall specify (i) the requested date (which shall be a Business Day), (ii)
whether such Swingline Loan is to be denominated in Dollars or a Foreign
Currency, (iii) the amount of the requested Swingline Loan, and (iv) in the
case of a Swingline Borrowing denominated in a Foreign Currency, the Interest
Period requested to be applicable thereto, which shall be a period contemplated
by clause (b) of the definition of the term “Interest Period”.  The Administrative Agent will promptly advise
the Swingline Lender of any such notice received from the Borrower.  The Swingline Lender and the Borrower shall
agree upon the interest rate applicable to any Swingline Foreign Currency Loan,
provided that if such agreement cannot be reached prior to 1:00 p.m.,
Local Time, on the day of such Swingline Foreign Currency Loan then such
Swingline Foreign Currency Loan shall not be made.  The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.


(c)           The Swingline Lender
may by written notice given to the Administrative Agent not later than 10:00
a.m., Local Time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans
outstanding.  Such notice shall specify
the aggregate amount of Swingline Loans in which Lenders will participate, and
such amount of Swingline Loans, if denominated in Foreign Currency, shall be
converted to Dollars and shall bear interest at the Alternate Base Rate (or
such lower rate to which the Borrower and Swingline Lender may agree).  Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each  Lender, specifying in such notice such Lender’s
Applicable Percentage of such Swingline Loan or Loans.  Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender’s
Applicable Percentage of such Swingline Loan or Loans.  Each Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.  Each Lender shall comply with its obligation
under this paragraph by wire transfer of immediately available funds, in the
same manner as provided in Section 2.07 with respect to Loans made by such
Lender (and Section 2.07 shall apply, mutatis
mutandis, to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Lenders.  The Administrative Agent shall notify the
Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall be
made to the Administrative Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lender
from the Borrower (or other party on behalf of the Borrower) in respect of a
Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative



 33
 









Agent shall be promptly remitted by the Administrative Agent to the
Lenders that shall have made their payments pursuant to this paragraph and to
the Swingline Lender, as their interests may appear; provided that any
such payment so remitted shall be repaid to the Swingline Lender or to the
Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the Borrower for any reason.  The purchase of participations in a Swingline
Loan pursuant to this paragraph shall not relieve the Borrower of any default
in the payment thereof.  Notwithstanding
the foregoing, a Lender shall not have any obligation to acquire a
participation in a Swingline Loan pursuant to this paragraph if an Event of
Default shall have occurred and be continuing at the time such Swingline Loan
was made and such Lender shall have notified the Swingline Lender in writing,
at least one Business Day prior to the time such Swingline Loan was made, that
such Event of Default has occurred and that such Lender will not acquire
participations in Swingline Loans made while such Event of Default is
continuing.


SECTION 2.06.      Letters of
Credit.


(a)           General.  Subject to the terms and conditions set forth
herein, the Borrower may request the issuance of Letters of Credit in Dollars
or in a Foreign Currency for its own account or that of a Subsidiary Borrower,
in a form reasonably acceptable to the Administrative Agent and the Issuing
Bank, at any time and from time to time during the Availability Period.  In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Borrower
to, or entered into by the Applicable Borrower with, the Issuing Bank relating
to any Letter of Credit, the terms and conditions of this Agreement shall
control.


(b)           Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of Credit
(or the amendment, renewal or extension of an outstanding Letter of Credit),
the Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing
Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance
of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c)
of this Section), the amount of such Letter of Credit, the name and address of
the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit.  If requested by the Issuing Bank, the
Borrower also shall submit a letter of credit application on the Issuing Bank’s
standard form in connection with any request for a Letter of Credit.  A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension
(i) the LC Exposure shall not exceed $75,000,000, (ii) the sum of the total
Revolving Credit Exposures shall not exceed the total Commitments and (iii) the
Dollar Equivalent of the aggregate amount of all Revolving Loans, Letters of
Credit, Swingline Loans and Alternate Currency Loans denominated in Foreign
Currency shall not exceed $200,000,000 (or, solely prior to December 31, 2006
and in connection with the Restructuring Transactions, $250,000,000).



 34
 









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


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


(e)           Reimbursement.  If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement not later than 12:00 noon, New York City time, on the date
that such LC Disbursement is made, if the Borrower shall have received notice
of such LC Disbursement prior to 10:00 a.m., New York City time, on such date,
or, if such notice has not been received by the Borrower prior to such time on
such date, then not later than 12:00 noon, New York City time, on (i) the
Business Day that the Borrower receives such notice, if such notice is received
prior to 10:00 a.m., New York City time, on the day of receipt, or (ii) the
Business Day immediately following the day that the Borrower receives such
notice, if such notice is not received prior to such time on the day of
receipt; provided that the Borrower may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.03 or 2.05
that such payment be financed with an ABR Revolving Borrowing or Swingline Loan
in an equivalent amount and, to the extent so financed, the Borrower’s
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing or Swingline Loan.  If the Applicable Borrower fails to make such
payment when due, such amount, if denominated in Foreign Currency, shall be
converted to Dollars and shall bear interest at the Alternate Base Rate and the
Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Applicable Borrower in respect
thereof and such Lender’s Applicable Percentage thereof.  Promptly following receipt of such notice,
each Lender shall pay to the Administrative Agent its Applicable Percentage of
the payment then due from the Applicable Borrower, in the same manner as
provided in Section 2.07 with respect to Loans made by such Lender (and Section
2.07 shall apply, mutatis  mutandis, to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank
the amounts so received by it from the Lenders. 
Promptly following receipt by the Administrative Agent of any payment
from the



 35
 









Applicable Borrower pursuant to this paragraph, the Administrative
Agent shall distribute such payment to the Issuing Bank or, to the extent that
Lenders have made payments pursuant to this paragraph to reimburse the Issuing
Bank, then to such Lenders and the Issuing Bank as their interests may appear.  Any payment made by a Lender pursuant to this
paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the
funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall
not constitute a Loan and shall not relieve the Applicable Borrower of its
obligation to reimburse such LC Disbursement.


(f)            Obligations
Absolute.  The Applicable Borrower’s
obligation to reimburse LC Disbursements as provided in paragraph (e) of this
Section shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under any and
all circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by
the Issuing Bank under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of set-off
against, the Applicable Borrower’s obligations hereunder.  Neither the Administrative Agent, the Lenders
nor the Issuing Bank, nor any of their Related Parties, shall have any
liability or responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing Bank; provided
that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Applicable Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by the Applicable Borrower to the extent permitted by applicable law) suffered
by the Applicable Borrower that are caused by the Issuing Bank’s failure to
exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof.  The parties hereto expressly agree that, in
the absence of gross negligence or willful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such
determination.  In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.


(g)           Disbursement
Procedures.  The Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit.  The Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy) of
such demand for payment and whether the



 36
 









Issuing Bank
has made or will make an LC Disbursement thereunder; provided that any
failure to give or delay in giving such notice shall not relieve the Applicable
Borrower of its obligation to reimburse the Issuing Bank and the Lenders with
respect to any such LC Disbursement.


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


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


(j)            Cash
Collateralization.  If any Event of
Default shall occur and be continuing, on the Business Day that the Borrower
receives notice from the Administrative Agent or the Required Lenders (or, if
the maturity of the Loans has been accelerated, Lenders with LC Exposure
representing greater than 51% of the total LC Exposure) demanding the deposit
of cash collateral pursuant to this paragraph, the Borrower shall deposit in an
account with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders, an amount in cash equal to the LC Exposure
as of such date plus any accrued and unpaid interest thereon; provided
that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to the Borrower described in clause (h) or (i) of Article
VII.  Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
Obligations.  The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account.  Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and
at the Borrower’s risk and expense, such deposits shall not bear interest.  Interest or



 37
 









profits, if
any, on such investments shall accumulate in such account.  Moneys in such account shall be applied by
the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 51% of the total LC Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement.  If the Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an Event
of Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after all Events of Default
have been cured or waived.


SECTION 2.07.      Funding of
Borrowings.


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


(b)           Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Applicable Borrower a corresponding
amount.  In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Applicable Borrower
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to the Applicable Borrower to but excluding
the date of payment to the Administrative Agent, at (i) in the case of such
Lender, (x) the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation (in the case of a Borrowing denominated in
Dollars) or (y) the rate reasonably determined by the Administrative Agent to
be the cost to it of funding such amount (in the case of a Borrowing
denominated in a Foreign Currency) or (ii) in the case of the Applicable Borrower,
the interest rate applicable to ABR Loans. 
If such Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender’s Loan included in such Borrowing.



 38
 









SECTION 2.08.      Interest
Elections.


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


(b)           To make an election
pursuant to this Section, the Borrower shall notify the Administrative Agent of
such election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Borrower were requesting a Revolving
Borrowing of the Type and denominated in the Foreign Currency resulting from
such election to be made on the effective date of such election.  Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Interest Election Request
in a form approved by the Administrative Agent and signed by the Borrower.


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


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


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


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


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


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


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



 39
 









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


SECTION 2.09.      Termination
and Reduction of Commitments; Increase of Commitments.


(a)           Unless previously
terminated, the Commitments shall terminate on the Maturity Date.


(b)           The Borrower may at
any time terminate, or from time to time reduce, the Commitments; provided
that (i) each reduction of the Commitments shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the
Borrower shall not terminate or reduce the Commitments if, after giving effect
to any concurrent prepayment of the Loans in accordance with Section 2.11, the
sum of the Revolving Credit Exposures would exceed the total Commitments.


(c)           The Borrower shall
notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. 
Promptly following receipt of any notice, the Administrative Agent shall
advise the Lenders of the contents thereof. 
Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments
delivered by the Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied.  Any termination or reduction of the
Commitments shall be permanent.  Each
reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.


(d)           The Borrower may, at
its option, on up to two occasions, seek to increase the total Commitments by
up to an aggregate amount of $250,000,000 (resulting in maximum total
Commitments of $550,000,000) upon at least three (3) Business Days’ prior
written notice to the Administrative Agent, which notice shall (i) specify the
amount of any such increase and (ii) if any Indebtedness under the Senior Note
Documents or the Subordinated Note Documents



 40
 









is then
outstanding, certify that incurrence by the Borrower of Indebtedness under this
Agreement in the full amount of the proposed increased Commitments is permitted
by the Senior Note Documents and the Subordinated Note Documents and shall be
delivered at a time when no Default  has
occurred and is continuing.  The Borrower
may, after giving such notice, offer the increase (which may be declined by any
Lender in its sole discretion) in the total Commitments on either a ratable
basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or
to other Lenders or entities reasonably acceptable to the Administrative
Agent.  No increase in the total
Commitments shall become effective until the existing or new Lenders extending
such incremental Commitment amount and the Borrower shall have delivered to the
Administrative Agent a document in form reasonably satisfactory to the
Administrative Agent pursuant to which any such existing Lender states the
amount of its Commitment increase, any such new Lender states its Commitment
amount and agrees to assume and accept the obligations and rights of a Lender
hereunder and the Borrower accepts such incremental Commitments.  The Lenders (new or existing) shall accept an
assignment from the existing Lenders, and the existing Lenders shall make an
assignment to the new or existing Lender accepting a new or increased
Commitment, of a direct or participation interest in each then outstanding Loan
and Letter of Credit such that, after giving effect thereto, all Revolving
Credit Exposure hereunder is held ratably by the Lenders in proportion to their
respective Commitments.  Assignments
pursuant to the preceding sentence shall be made in exchange for the principal
amount assigned plus accrued and unpaid interest and commitment and letter of
credit fees.  The Borrower shall make any
payments under Section 2.16 resulting from such assignments.  Any such increase of the total Commitments
shall be subject to receipt by the Administrative Agent from the Borrower of
such supplemental opinions, resolutions, certificates and other documents as
the Administrative Agent may reasonably request.


SECTION 2.10.      Repayment of
Loans; Evidence of Debt.


(a)           Each Applicable
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each of its
Revolving Loans on the Maturity Date and (ii) to the Alternate Currency
Lenders, the then unpaid principal amount of each of its Alternate Currency
Loans on the Maturity Date, and (iii) to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the earlier of (x) the Maturity Date
and (y) a date that is no more than seven (7) Business Days after such
Swingline Loan is made; provided that on each date that a Revolving
Borrowing is made, the Borrower shall repay all Swingline Loans then
outstanding.


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


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


 



 41















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


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


(f)            In
the event and on such occasion that the aggregate Revolving Credit Exposure of
the Lenders exceeds the aggregate Commitments of the Lenders, the Borrower
immediately shall prepay the Loans in the amount of such excess.


SECTION 2.11.      Prepayment
of Loans.


(a)           The
Borrowers shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to prior notice in accordance with
paragraph (b) of this Section.


(b)           The
Borrower shall notify the Administrative Agent (and, in the case of prepayment
of a Swingline Loan or Alternate Currency Loan, the Swingline Lender or
Alternate Currency Lender, as the case may be) by telephone (confirmed by
telecopy) of any prepayment hereunder (i) in the case of prepayment of a
Eurocurrency Revolving Borrowing (excluding Alternate Currency Loans), not
later than 11:00 a.m., New York City time, three Business Days before the date
of prepayment, (ii) in the case of Alternate Currency Borrowings, not later
than 11:00 a.m. London time, three (or, if so requested by the Alternate
Currency Fronting Lender with respect to Alternate Currency Loans in a
specified currency, four) Business Days before the date of prepayment, (iii) in
the case of prepayment of an ABR Revolving Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of prepayment or
(iv) in the case of prepayment of a Swingline Loan, not later than 12:00 noon,
New York City time, on the date of prepayment. 
Each such notice shall be irrevocable and shall specify the prepayment
date and the principal amount of each Borrowing or portion thereof to be
prepaid; provided that, if a notice of prepayment is given in connection
with a conditional notice of termination of the Commitments as contemplated by
Section 2.09, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.09.  Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof.  Each
partial prepayment of any Revolving Borrowing shall be in an amount that would
be permitted in the case of an advance of a Revolving Borrowing of the same
Type as provided in Section 2.02.  Each
prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. 
Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.13.  



 42
 









 


Prepayments shall be applied first, to any ABR Borrowings comprising
all or a part of the Class being prepaid and second, if (or once) no ABR
Borrowings of such Class remain outstanding, to outstanding Eurocurrency
Borrowings of such Class with the shortest Interest Periods remaining.


SECTION 2.12.      Fees.


(a)           The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee, which shall accrue at the Applicable Rate on the
average daily difference between the Commitment of such Lender and the
Revolving Credit Exposure of such Lender during the period from and including
the Original Effective Date to but excluding the date on which such Commitment
terminates.  Accrued commitment fees
shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments terminate,
commencing on the first such date to occur after the Effective Date.  All commitment fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).


(b)           The
Borrower agrees to pay (i) to the Administrative Agent for the account of each
Lender a participation fee with respect to its participations in Letters of
Credit, which shall accrue at the same Applicable Rate used to determine the
interest rate applicable to Eurocurrency Revolving Loans on the average daily
amount of such Lender’s LC Exposure (excluding any portion thereof attributable
to unreimbursed LC Disbursements) during the period from and including the
Original Effective Date to but excluding the later of the date on which such
Lender’s Commitment terminates and the date on which such Lender ceases to have
any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which shall
accrue at the rate or rates per annum separately agreed upon between the
Borrower and the Issuing Bank on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Original Effective Date to but
excluding the later of the date of termination of the Commitments and the date
on which there ceases to be any LC Exposure, as well as the Issuing Bank’s
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder.  Participation fees and fronting fees accrued
through and including the last day of March, June, September and December of
each year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date; provided
that all such fees shall be payable on the date on which the Commitments
terminate and any such fees accruing after the date on which the Commitments
terminate shall be payable on demand. 
Any other fees payable to the Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. 
All participation fees and fronting fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).


(c)           The
Borrower agrees to pay (i) to the Administrative Agent for the ratable
(relative to Commitment amount) account of each Lender (including each
Alternate Currency Lender) a participation fee with respect to each Alternate
Currency Loan, which shall accrue at the same Applicable Rate used to determine
the interest rate applicable to Eurocurrency Revolving Loans on the average
daily amount of such Alternate Currency Loan during the period from and
including the date such Alternate Currency Loan was made to but excluding the
date of



 43
 









 


repayment thereof, and (ii) to the Alternate Currency Fronting Lender
with respect to each Alternate Currency Loan made by it, a fronting fee with
respect to the period from and including the date of the applicable Alternate
Currency Loan to but excluding the date of repayment thereof at a rate per
annum agreed between the Borrower and the Alternate Currency Fronting
Lender.  Such participation and fronting
fees accrued through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following such
last day (or, if earlier the date that the Commitments terminate).  For purposes of clarity, no fee shall be
payable under this clause (c) for Loans made pursuant to Section 2.01 or 2.05.


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


(e)           All
fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to the Issuing Bank or Alternate
Currency Fronting Lender, in the case of fees payable to such Persons) for
distribution, in the case of commitment fees and participation fees, to the
Lenders.  Fees paid shall not be refundable
under any circumstances.


SECTION 2.13.      Interest.


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


(b)           The
Loans comprising each Eurocurrency Borrowing (other than Alternate Currency
Loans) shall bear interest at the Adjusted LIBO Rate for the Interest Period in
effect for such Borrowing plus the Applicable Rate.  Alternate Currency Loans shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
(without the addition of the Applicable Rate), in addition to the fees set
forth in Section 2.12(c).


(c)           Each
Swingline Foreign Currency Loan shall bear interest as determined in Section
2.05.


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


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



 44
 









 


of any Eurocurrency Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.


(f)            All
interest hereunder shall be computed on the basis of a year of 360 days, except
that (i) interest on Borrowings denominated in Sterling shall be computed on
the basis of a year of 365 days, (ii) interest on Borrowings denominated in any
other Foreign Currency for which it is required by applicable law or customary
to compute interest on the basis of a year of 365 days or, if required by
applicable law or customary, 366 days in a leap year, shall be computed on such
basis, and (iii) interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). 
The applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.


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


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


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


then the Administrative Agent shall give notice
thereof to the Borrower and the Lenders by telephone or telecopy as promptly as
practicable thereafter and, until the Administrative Agent notifies the
Borrower and the Lenders that the circumstances giving rise to such notice no
longer exist, (i) any Interest Election Request that requests the conversion of
any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a
Eurocurrency Borrowing denominated in such currency shall be ineffective and
(ii) such Borrowing shall be converted to or continued as on the last day of
the Interest Period applicable thereto (A) if such Borrowing is denominated in
Dollars, an ABR Borrowing or (B) if such Borrowing is denominated in a Foreign
Currency, as a Borrowing bearing interest at such rate as the Administrative
Agent determines adequately reflects the costs to the Lenders of making or
maintaining such Borrowing, and (ii) if any Borrowing Request requests a
Eurocurrency Borrowing in such currency, such Borrowing shall be made as an ABR
Borrowing (if such Borrowing is requested to be made in Dollars) or shall be
made as a Borrowing bearing interest at such rate as the Administrative Agent
determines adequately reflects the costs to the Lender of making or maintaining
such Borrowing.


SECTION 2.15.      Increased
Costs.


(a)           If
any Change in Law shall:


(i)            impose, modify or
deem applicable any reserve, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, 



 45
 









 


any Lender
(except any such reserve requirement reflected in the Adjusted LIBO Rate) or
the Issuing Bank; or


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


and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any Eurocurrency Loan
(or of maintaining its obligation to make any such Loan) or to increase the
cost to such Lender or the Issuing Bank of participating in, issuing or
maintaining any Letter of Credit or to reduce the amount of any sum received or
receivable by such Lender or the Issuing Bank hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender or the Issuing
Bank, as the case may be, such additional amount or amounts as will compensate
such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.


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


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


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



 46
 









 


SECTION 2.16.      Break
Funding Payments.  In the event of
(a) the payment of any principal of any Eurocurrency Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurocurrency Loan other than on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurocurrency Loan on the date specified
in any notice delivered pursuant hereto (regardless of whether such notice may
be revoked under Section 2.11(b) and is revoked in accordance therewith) or (d)
the assignment of any Eurocurrency Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.19, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event.  In the case of a Eurocurrency
Loan, such loss, cost or expense to any Lender shall be deemed to include an
amount determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable
to such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period
for such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for deposits in the
applicable currency of a comparable amount and period from other banks in the
eurocurrency market.  A certificate of
any Lender setting forth in reasonable detail any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.


SECTION 2.17.      Taxes.


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


(b)           In
addition, the Applicable Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.


(c)           The
Applicable Borrower shall indemnify the Administrative Agent, each Lender and
the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative
Agent, such Lender or the Issuing Bank, as the case may be, on or with respect
to any payment by or on account of any obligation of such Applicable Borrower
hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties,



 47
 









 


interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority.  A certificate in reasonable detail as to the
amount of such payment or liability delivered to the Borrower by a Lender or
the Issuing Bank, or by the Administrative Agent on its own behalf or on behalf
of a Lender or the Issuing Bank, shall be conclusive absent manifest error.


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


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


(f)            If
the Administrative Agent or a Lender determines that it has received a refund
of any Taxes or Other Taxes as to which it has been indemnified by one of the
Borrowers or with respect to which one of the Borrowers has paid additional
amounts pursuant to this Section 2.17, it shall pay over such refund to the
Applicable Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Applicable Borrower under this Section 2.17
with respect to the Taxes or Other Taxes giving rise to such refund), net of
all out-of-pocket expenses of the Administrative Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that the Applicable
Borrower, upon the request of the Administrative Agent or such Lender, agrees
to repay the amount paid over to the Applicable Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to
the Administrative Agent or such Lender in the event the Administrative Agent
or such Lender is required to repay such refund to such Governmental Authority.
This Section shall not be construed to require the Administrative Agent or any
Lender to make available its tax returns (or any other information relating to
its taxes which it deems confidential) to any of the Borrowers or any other
Person.


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


(a)           Each
of the Borrowers shall make each payment required to be made by it hereunder
(whether of principal, interest, fees or reimbursement of LC Disbursements, or
of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to
12:00 noon, New York City time, on the date when due, in immediately available
funds, without set-off or counterclaim. 
Any amounts received after such time on any date may, in the discretion
of the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon.  All such payments shall be made to the
Administrative Agent at its offices at 270 Park Avenue, New York, New York,
except payments to be made directly to the


 



 48
 









 


Issuing Bank, Alternate Currency Fronting Lender or Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.15,
2.16, 2.17 and 9.03 shall be made directly to the Persons entitled
thereto.  The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof.  If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such
extension.  All payments hereunder of (i)
principal or interest in respect of any Loan shall be made in the currency in
which such Loan is denominated, (ii) reimbursement obligations shall be made in
the currency in which the Letter of Credit in respect of which such
reimbursement obligation exists is denominated or (iii) any other amount due
hereunder or under another Credit Document shall be made in Dollars.  Any payment required to be made by the
Administrative Agent hereunder shall be deemed to have been made by the time
required if the Administrative Agent shall at or before such time, have taken
the necessary steps to make such payment in accordance with the regulations or
operating procedures of the clearing or settlement system used by the
Administrative Agent to make such payment.


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


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



 49
 









 


Applicable Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Applicable Borrower in the amount of such participation.


(d)           Unless
the Administrative Agent shall have received notice from the Applicable
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Applicable Borrower will not make such payment, the Administrative Agent may
assume that the Applicable Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or the Issuing Bank, as the case may be, the amount due.  In such event, if the Applicable Borrower has
not in fact made such payment, then each of the Lenders or the Issuing Bank, as
the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, (i) at the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation (in the case of an amount denominated in Dollars)
and (ii) the rate reasonably determined by the Administrative Agent to be the
cost to it of funding such amount (in the case of an amount denominated in a
Foreign Currency).


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


SECTION 2.19.      Mitigation
Obligations; Replacement of Lenders.


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


(b)           If
any Lender requests compensation under Section 2.15, or if any of the Borrowers
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, or if any
Lender defaults in its obligation to fund Loans hereunder, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); 



 50
 









 


provided that (i) the Borrower shall have
received the prior written consent of the Administrative Agent (and if a
Commitment is being assigned, the Issuing Bank), which consent shall not unreasonably
be withheld, (ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans and participations in LC Disbursements
and Swingline Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments required
to be made pursuant to Section 2.17, such assignment will result in a reduction
in such compensation or payments.  A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.


SECTION 2.20.      Subsidiary
Borrowers.


(a)           The
Borrower may, at any time or from time to time, designate one or more Wholly-Owned
Subsidiaries of the Borrower as a “Subsidiary Borrower” hereunder by furnishing
to the Administrative Agent and the Lenders at least five Business Days before
such designation is to take effect a Designation Letter in duplicate, duly
completed and executed by the Borrower and such Wholly-Owned Subsidiary,
together with (i) the items described in paragraphs (b) and (c) of Section 4.01
relating to such Subsidiary Borrower in form and substance satisfactory to the
Administrative Agent, (ii) such security agreements and similar documents as
the Administrative Agent shall reasonably request to accomplish the pledge by
such Subsidiary Borrower of substantially all of its assets (other than Real
Property and such immaterial assets as may be agreed upon between the
Administrative Agent and the Borrower) to secure the obligations of such
Subsidiary Borrower hereunder and under the Designation Letter, and (iii) such
other documents and information (including information relating to “know your
customer” rules and regulations) as the Administrative Agent shall reasonably
request.  Upon any such designation of a
Wholly-Owned Subsidiary and the consent of each of the Lenders, which will not
be unreasonably withheld, such Subsidiary shall be a Subsidiary Borrower hereunder
(with the related rights and obligations) and shall be entitled to request
Revolving Loans on and subject to the terms and conditions of, and to the
extent provided in, this Agreement; provided, however, that if the Borrower so
indicates in the applicable Designation Letter, the Subsidiary Borrower may be
entitled to request only Alternate Currency Loans, in which case such
Subsidiary Borrower shall then be entitled to request Alternate Currency Loans
on and subject to the terms and conditions of, and to the extent provided in,
this Agreement and the consent to such designation of only the Administrative
Agent and the applicable Alternate Currency Lenders shall be required.


(b)           So
long as all Loans made to any Subsidiary Borrower and any related obligations
have been paid in full, the Borrower may terminate the status of such
Subsidiary Borrower as a Subsidiary Borrower hereunder by furnishing to the
Administrative Agent a Termination Letter in duplicate, duly completed and
executed by the Borrower and such Subsidiary. 
Any Termination Letter furnished hereunder shall be effective upon
receipt by the Administrative Agent, which shall promptly notify the
Lenders.  Notwithstanding the foregoing,
the delivery of a Termination Letter with respect to any Subsidiary Borrower
shall not terminate (i) any obligation of such Subsidiary Borrower that remains
unpaid at the time of such delivery



 51
 









 


or (ii) the obligations of the Borrower under the Parent Guaranty with
respect to any such unpaid obligations.


SECTION 2.21.      Additional
Reserve Costs.


(a)           For
so long as any Lender is required to make special deposits with The Bank of
England and/or The Financial Services Authority (or, in either case, any other
authority which replaces all or any of its functions) or comply with reserve
assets, liquidity, cash margin or other requirements of The Bank of England
and/or The Financial Services Authority (or, in either case, any other
authority which replaces all or any of its functions), to maintain reserve
asset ratios or to pay fees, in each case in respect of such Lender’s
Eurocurrency Loans or Swingline Foreign Currency Loans, such Lender shall be
entitled to require the Applicable Borrower to pay, contemporaneously with each
payment of interest on each of such Loans, additional interest on such Loan at
a rate per annum equal to the Mandatory Cost Rate calculated in accordance with
the formula and in the manner set forth in Schedule 2.21 hereto.


(b)           For
so long as any Lender is required to comply with reserve assets, liquidity, cash
margin or other requirements of any monetary or other authority (including any
such requirement imposed by the European Central Bank or the European System of
Central Banks, but excluding requirements reflected in the Statutory Reserves
or the Mandatory Cost Rate) in respect of any of such Lender’s Eurocurrency
Loans and Swingline Foreign Currency Loans, such Lender shall be entitled to
require the Applicable Borrower to pay, contemporaneously with each payment of
interest on each of such Lender’s Loans subject to such requirements,
additional interest on such Loan at a rate per annum specified by such Lender
to be the cost to such Lender of complying with such requirements in relation
to such Loan.


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


ARTICLE
III


Representations
and Warranties


The Borrower represents
and warrants to the Lenders that:


SECTION 3.01.      Organization;
Powers.  Except as set forth on
Schedule 3.01, each of the Borrower and its Subsidiaries is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization (except, with respect to Subsidiaries that are not Subsidiary
Guarantors, where the failure to be in good standing under the laws of their
respective jurisdiction of incorporation could not reasonably be expected to
result, individually or in the aggregate, in a Material Adverse Effect), has
all requisite power and authority to carry on its business as now conducted
and, except where the failure to do so, individually or in the



 52
 









 


aggregate, could not reasonably be expected to result in a Material
Adverse Effect, is qualified to do business in, and is in good standing in,
every jurisdiction where such qualification is required.


SECTION 3.02.      Authorization;
Enforceability.  The Transactions are
within the Credit Parties’ corporate or limited liability company or other
organizational powers and have been duly authorized by all necessary corporate
and, if required, stockholder or similar action.  This Agreement has been duly executed and
delivered by the Borrower and constitutes a legal, valid and binding obligation
of the Borrower, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.


SECTION 3.03.      Governmental
Approvals; No Conflicts.  The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a
default under (i) the Senior Note Documents or the Subordinated Note Documents
or (ii) any other indenture, agreement or other instrument binding upon the
Borrower or any of its Subsidiaries or its assets, other than (in the case of
such other indentures, agreements or instruments) such violations or defaults
which could not reasonably be expected to result, individually or in the
aggregate, in a Material Adverse Effect, or give rise to a right thereunder to
require any payment to be made by the Borrower or any of its Subsidiaries, and
(d) will not result in the creation or imposition of any Lien on any asset of
the Borrower or any of its Subsidiaries, other than Permitted Liens.


SECTION 3.04.      Financial
Condition; No Material Adverse Change.


(a)           The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, stockholders equity and cash flows (i) as of and for
the fiscal year ended December 31, 2005, reported on by Pricewaterhouse Coopers
LLP, independent public accountants, and (ii) as of and for the fiscal quarter
and the portion of the fiscal year ended September 30, 2006, certified by its
chief financial officer.  Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of the Borrower and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to year end audit adjustments and the absence of footnotes in the case
of the statements referred to in clause (ii) above.


(b)           Since
December 31, 2005, there has been no material adverse change in the business,
assets, operations, prospects or condition, financial or otherwise, of the
Borrower and its Subsidiaries, taken as a whole.


SECTION 3.05.      Properties.


(a)           Each
of the Borrower and its Subsidiaries has good title to, or valid leasehold
interests in, all its real and personal property material to its business,
except for minor defects in title that do not interfere with its ability to
conduct its business as currently conducted



 53
 









 


or to utilize such properties for their intended purposes, and free and
clear of all Liens, other than Permitted Liens. 
All Real Property having a fair market value in excess of $5,000,000
owned by the Borrower or any of the Subsidiary Guarantors as of the Effective
Date is set forth on Schedule 3.05. 
Schedule 3.05 also sets forth (i) the locations of all leased Real
Property of the Borrower or any Subsidiary Guarantor where equipment and/or
inventory having a fair market value in excess of $500,000 in the aggregate (as
determined at any time during the immediately preceding four fiscal quarters)
is held as of the Effective Date, and (ii) the locations where such equipment
and/or inventory is held pursuant to bailment arrangements as of the Effective
Date.


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


SECTION 3.06.      Litigation
and Environmental Matters.


(a)           There
are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of its Subsidiaries (i) as
to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve the Credit Documents or the Transactions.


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


(c)           Since
the date of this Agreement, there has been no change in the status of the
Disclosed Matters that, individually or in the aggregate, has resulted in, or
materially increased the likelihood of, a Material Adverse Effect.


SECTION 3.07.      Compliance
with Laws and Agreements.  Each of
the Borrower and its Subsidiaries is in compliance with all laws, regulations
and orders of any Governmental Authority applicable to it or its property and
all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.  No Default has occurred and is continuing.


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



 54















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


SECTION 3.10.      ERISA.


(a)           No ERISA Event has
occurred or is reasonably expected to occur that, when taken together with all
other such ERISA Events for which liability is reasonably expected to occur,
could reasonably be expected to result in a Material Adverse Effect.  Except as set forth on Schedule 3.10, the
present value of all accumulated benefit obligations under each Plan (based on
the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements prior to the Original Effective Date reflecting such amounts, exceed
by more than $5,000,000 the fair market value of the assets of such Plan, and
the present value of all accumulated benefit obligations of all underfunded
Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent
financial statements prior to the Original Effective Date reflecting such
amounts, exceed by more than $5,000,000 the fair market value of the assets of
all such underfunded Plans.


(b)           Each Foreign Pension
Plan has been maintained in substantial compliance with its terms and in
substantial compliance with the requirements of any and all applicable laws,
statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities.  All contributions required to be made with
respect to a Foreign Pension Plan have been timely made.  Neither the Borrower nor any of its
Subsidiaries has incurred any material obligation in connection with the
termination of or withdrawal from any Foreign Pension Plan.  Except as set forth on Schedule 3.10, the
present value of the accrued benefit liabilities (whether or not vested) under
each Foreign Pension Plan, determined as of the end of the Borrower’s most
recently ended fiscal year prior to the Original Effective Date on the basis of
actuarial assumptions, each of which is reasonable, did not exceed the current
value of the assets of such Foreign Pension Plan allocable to such benefit
liabilities.


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



 55
 









SECTION 3.12.      The Security
Documents.


(a)           The provisions of
the Security Agreement are effective to create in favor of the Collateral Agent
for the benefit of the Secured Creditors a legal, valid and enforceable
security interest in all right, title and interest of the Credit Parties in the
Security Agreement Collateral described therein, and the Collateral Agent, for
the benefit of the Secured Creditors, will have, upon its taking all actions
required of it under the UCC, a fully perfected security interest in all right,
title and interest in all of the Security Agreement Collateral described
therein (to the extent that such security interest can be perfected by filing a
UCC financing statement or, to the extent required by the Security Agreement,
by taking possession of (or taking certain other actions with respect to) the
respective Security Agreement Collateral), subject to no other Liens other than
Permitted Liens.  In addition, the
recordation of (x) the Grant of Security Interest in U.S. Patents and (y) the
Grant of Security Interest in U.S. Trademarks in the respective forms attached
to the Security Agreement, in each case in the United States Patent and
Trademark Office, together with UCC filings made pursuant to the Security
Agreement, will create, as may be perfected by such filings and recordation, a
perfected security interest in the United States trademarks and patents covered
by the Security Agreement, and the recordation of the Grant of Security
Interest in U.S. Copyrights in the form attached to the Security Agreement with
the United States Copyright Office, together with UCC filings made pursuant to
the Security Agreement, will create, as may be perfected by such filings and
recordation, a perfected security interest in the United States copyrights
covered by the Security Agreement.


(b)           The security
interests created in favor of the Collateral Agent, as pledgee, for the benefit
of the Secured Creditors, under the Pledge Agreement constitute perfected
security interests in the Pledge Agreement Collateral described in the Pledge
Agreement, subject to no security interests of any other Person.  No filings or recordings are required in
order to perfect (or maintain the perfection or priority of) the security
interests created in the Pledge Agreement Collateral under the Pledge Agreement
other than with respect to that portion of the Pledge Agreement Collateral
constituting a “general intangible” under the UCC.


SECTION 3.13.      Subsidiaries.  As of the Effective Date, the Borrower has no
Subsidiaries other than those Subsidiaries listed on Schedule 3.13.  Schedule 3.13 correctly sets forth, as of the
Effective Date, (i) the percentage ownership (direct or indirect) of the
Borrower in each class of capital stock or other equity of its Subsidiaries and
also identifies the direct owner thereof, and (ii) the jurisdiction of
organization of each such Subsidiary.


SECTION 3.14.      Indebtedness.  Schedule 6.01 sets forth a true and complete
list of all Indebtedness (including Guarantees (other than Guarantees otherwise
permitted under Section 6.01)) of the Borrower and its Subsidiaries as of the
Original Effective Date and which is to remain outstanding after giving effect
to the Transactions (excluding the Loans and the Letters of Credit), in each
case showing the aggregate principal amount thereof and the name of the
respective borrower and any Credit Party or any of its Subsidiaries which
directly or indirectly guarantees such debt.


SECTION 3.15.      Insurance.  Schedule 3.15 sets forth a true and complete
listing of all insurance maintained by the Borrower and its Subsidiaries as of
the Original Effective Date, with the amounts insured (and any deductibles) set
forth therein.



 56
 









SECTION 3.16.      Subordination.  The subordination provisions contained in the
respective Subordinated Note Documents are enforceable against the Borrower,
the Subsidiary Guarantors and the holders of the respective Subordinated Notes,
and the Obligations are within the definitions of “Senior Debt” (or “Guarantor
Senior Debt” in the case of the obligations of any Subsidiary Guarantor) and “Designated
Senior Debt” included in such subordination provisions.


ARTICLE IV


Conditions


SECTION 4.01.      Effectiveness
and Initial Advance.  This Agreement
shall not become effective and the Lenders shall not be required to make the
initial Advances hereunder unless (i) the Borrower has satisfied the conditions
precedent set forth in Section 4.02, (ii) the Borrower has furnished to the
Administrative Agent with sufficient copies for the Lenders each of the
following documents and (iii) each of the following events shall have occurred,
as applicable:


(a)           The Administrative
Agent (or its counsel) shall have received from the Required Lenders and from
each Credit Party either (i) a counterpart of each Credit Document to which it
is a party signed on behalf of such party or (ii) written evidence satisfactory
to the Administrative Agent (which may include telecopy transmission of a
signed signature page of this Agreement) that such party has signed a
counterpart of such Credit Document.


(b)           The Administrative
Agent shall have received a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of Quarles
& Brady, LLP, counsel for the Borrower in form and substance satisfactory
to the Administrative Agent and its counsel. 
The Borrower hereby requests such counsel to deliver such opinion.


(c)           The Administrative
Agent shall have received such documents and certificates as the Administrative
Agent or its counsel may reasonably request relating to the organization, existence
and good standing of the Borrower, the authorization of the Transactions and
any other legal matters relating to the Borrower or the Credit Documents, all
in form and substance satisfactory to the Administrative Agent and its counsel.


(d)           The Administrative
Agent shall have received a certificate, dated the Effective Date and signed by
the President, a Vice President or a Financial Officer of the Borrower,
confirming compliance with the conditions set forth in paragraphs (a) and (b)
of Section 4.02.


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


(f)            The Administrative
Agent shall have received such information with respect to the Restructuring
Transactions as the Administrative Agent shall have reasonably requested and
such information shall be satisfactory to the Administrative Agent.



 57
 









(g)           The Administrative
Agent shall have received copies of all Governmental Authority and third party
approvals necessary or, in the discretion of the Administrative Agent,
advisable in connection with the Transactions and all other documents
reasonably requested by the Administrative Agent.


The Administrative Agent shall notify the Borrower and
the Lenders of the Effective Date, and such notice shall be conclusive and
binding.  Notwithstanding the foregoing,
the obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit hereunder shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or
prior to 3:00 p.m., New York City time, on December 31, 2006 (and, in the event
such conditions are not so satisfied or waived,) this Agreement shall be of no
force and effect (but the Existing Credit Agreement will remain in full force
and effect).


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


(a)           The representations and warranties of
the Borrower set forth in this Agreement shall be true and correct in all
material respects (except that any representation or warranty which is already
qualified as to materiality or by reference to Material Adverse Effect shall be
true and correct in all respects) on and as of the date of such Borrowing
(other than representations and warranties that relate solely to an earlier
date) or the date of issuance, amendment, renewal or extension of such Letter
of Credit, as applicable.


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


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


ARTICLE V


Affirmative
Covenants


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


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


(a)           within 90 days after
the end of each fiscal year of the Borrower, its audited consolidated balance
sheet and related statements of operations, stockholders’ equity and cash flows
as of the end of and for such year, setting forth in each case in comparative
form the 



 58
 









figures for
the previous fiscal year, all reported on by PricewaterhouseCoopers LLP or
other independent public accountants of recognized national standing (without a
“going concern” or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect that
such consolidated financial statements present fairly in all material respects
the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;


(b)           within 45 days after
the end of each of the first three fiscal quarters of each fiscal year of the
Borrower, its consolidated balance sheet and related statements of operations,
stockholders’ equity and cash flows as of the end of and for such fiscal
quarter and the then elapsed portion of the fiscal year, setting forth in each
case in comparative form the figures for the corresponding period or periods of
(or, in the case of the balance sheet, as of the end of) the previous fiscal
year, all certified by one of its Financial Officers as presenting fairly in
all material respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;


(c)           concurrently with
any delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer of the Borrower (i) certifying as to whether
a Default has occurred and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect thereto, (ii)
setting forth reasonably detailed calculations (x) of the amount of “Permitted
Indebtedness” (as described in part (2) of the definition thereof in the Senior
Note Indenture and the Subordinated Note Indenture) then outstanding and then
permitted to be incurred by the terms of the Senior Note Indenture and the
Subordinated Note Indenture and (y) demonstrating compliance with Sections 6.07
through 6.09 and 6.16 and 6.17 and (iii) stating whether any change in GAAP or
in the application thereof has occurred since the date of the audited financial
statements referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying
such certificate and (iv) if the assets, liabilities or results of operations
of any FIN 46 Subsidiary are reflected in such financial statements, attaching
such additional information, all certified by a Financial Officer of the
Borrower and in form and detail satisfactory to the Administrative Agent, as
may be necessary to permit computation of all amounts relevant to the
determination of the Borrower’s compliance with this Agreement (taking into
account the fact that FIN 46 Subsidiaries and their respective assets,
liabilities and results of operations are excluded from all computations made
on a consolidated basis for the Borrower and its Subsidiaries hereunder);


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


(e)           promptly after the
same become publicly available, copies of all periodic reports (including
reports on Form 8-K), proxy statements and other financial materials filed by
the Borrower or any Subsidiary with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all of the functions of said
Commission, or with 



 59
 









any national
securities exchange, or distributed by the Borrower to its shareholders
generally, as the case may be;


(f)            promptly following
any request therefor, such other information (including tax opinions received
by the Borrower) regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the terms of
this Agreement, as the Administrative Agent or any Lender may reasonably
request;


(g)           promptly after the
Borrower’s or any of its Subsidiaries’ receipt thereof, a copy of any “management
letter” received from its certified public accountants and management’s
response thereto;


(h)           no later than 60
days following the first day of each fiscal year of the Borrower, a budget in
form reasonably satisfactory to the Administrative Agent (including budgeted
statements of income, sources and uses of cash and balance sheets) for the
Borrower and its Subsidiaries on a consolidated basis prepared by the Borrower
for each of the four fiscal quarters of such fiscal year prepared in detail,
setting forth, with appropriate discussion, the principal assumptions upon
which such budgets are based;


(i)            promptly after the
delivery thereof, copies of all financial information, proxy materials and
reports which the Borrower or any of its Subsidiaries shall deliver to holders
(or any trustee, agent or representative therefor) of any of its other Material
Indebtedness in each case pursuant to the terms of the documentation governing
such Material Indebtedness.


Any financial statement or other material required to
be delivered pursuant to this Section 5.01 shall be deemed to have been
furnished to the Lenders on the date that an electronic copy of such financial
statement or other material is provided to the Administrative Agent; provided
that the Borrower will furnish paper copies of such financial statements and
other materials to any Lender that requests, by notice to the Borrower, that
the Borrower do so, until the Borrower receives notice from such Lender to
cease delivering such paper copies.


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


(a)           the occurrence of
any Default;


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


(c)           the occurrence of
any ERISA Event that, alone or together with any other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Borrower
and its Subsidiaries in an aggregate amount exceeding $3,000,000; and


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



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


SECTION 5.03.      Existence;
Conduct of Business.  The Borrower
will, and will cause each of its Material Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business; provided that the
foregoing shall not prohibit any sale of assets, merger, consolidation,
liquidation or dissolution permitted under Section 6.03.


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


SECTION 5.05.      Maintenance
of Properties; Insurance.  The
Borrower will, and will cause each of its Material Subsidiaries to, (a) keep and
maintain all property material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted, (b) maintain, with
financially sound and reputable insurance companies, insurance in such amounts
and against such risks as are customarily maintained by companies engaged in
the same or similar businesses operating in the same or similar locations and
(c) cause all insurance policies or certificates, as requested by the
Administrative Agent, to be endorsed to the benefit of the Administrative Agent
(including, without limitation, by naming the Administrative Agent as loss
payee and/or additional insured).  If the
Borrower or any of its Material Subsidiaries shall fail to maintain insurance
in accordance with this Section 5.05, or if the Borrower or any of its Material
Subsidiaries shall fail to so endorse and deliver all policies or certificates
with respect thereto, the Administrative Agent shall have the right (but shall
be under no obligation) to procure such insurance and the Borrower agrees to
reimburse the Administrative Agent for all reasonable costs and expenses of
procuring such insurance.


SECTION 5.06.      Books
and Records; Inspection Rights.  The
Borrower will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities.  The Borrower will, and will cause each of its
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested.


SECTION 5.07.      Compliance
with Laws.  The Borrower will, and
will cause each of its Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, 



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individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.


SECTION 5.08.      Use
of Proceeds and Letters of Credit. 
The proceeds of the Loans will be used only for general corporate
purposes.  No part of the proceeds of any
Loan will be used, whether directly or indirectly, to purchase or carry Margin
Stock or for any purpose that entails a violation of any of the Regulations of
the Board, including Regulations T, U and X. 
Letters of Credit will be issued only to support the ordinary course of
business operations of the Borrower and its Subsidiaries.


SECTION 5.09.      Compliance
with Environmental Laws.


(a)           The
Borrower will comply, and will cause each of its Subsidiaries to comply, with
all Environmental Laws and permits applicable to, or required by, the
ownership, lease or use of its Real Property now or hereafter owned, leased or
operated by the Borrower or any of its Subsidiaries, except such noncompliances
as could not, either individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect, and will promptly pay or cause to be paid
all costs and expenses incurred in connection with such compliance, and will
keep or cause to be kept all such Real Property free and clear of any Liens
imposed pursuant to such Environmental Laws. 
Neither the Borrower nor any of its Subsidiaries will generate, use,
treat, store, Release or dispose of, or permit the generation, use, treatment,
storage, Release or disposal of Hazardous Materials on any Real Property now or
hereafter owned, leased or operated by the Borrower or any of its Subsidiaries,
or transport or permit the transportation of Hazardous Materials to or from any
such Real Property, except for Hazardous Materials generated, used, treated,
stored, Released or disposed of at any such Real Properties in compliance in
all material respects with all applicable Environmental Laws and as required in
connection with the normal operation, use and maintenance of the business or
operations of the Borrower or any of its Subsidiaries and which could not,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


(b)           (i)  After the receipt by the Administrative Agent
or any Lender of any notice of material non-compliance with any Environmental
Law by the Borrower or any of its Subsidiaries or with respect to any Real
Property owned, leased or operated by the Borrower or any of its Subsidiaries,
(ii) at any time that the Borrower or any of its Subsidiaries are not in
compliance with Section 5.09(a) or (iii) in the event that the Administrative
Agent or the Lenders have exercised any of the remedies pursuant to Article
VII, the Borrower will (in each case) provide, at the sole expense of the
Borrower and at the request of the Administrative Agent, an environmental site
assessment report concerning such Real Property (or in the case of clause (iii)
above, any Real Property owned, leased or operated by the Borrower or any of
its Subsidiaries), prepared by an environmental consulting firm reasonably
approved by the Administrative Agent, indicating the presence or absence of
Hazardous Materials and the potential cost of any removal or remedial action in
connection with such Hazardous Materials on such Real Property.  If the Borrower fails to provide the same
within 30 days after such request was made, the Administrative Agent may order
the same, the cost of which shall be borne by the Borrower, and the Borrower
shall grant and hereby grants to the Administrative Agent and the Lenders and
their respective agents access to such Real Property and specifically grants
the Administrative Agent and the Lenders an irrevocable non-exclusive license,
subject to the rights of tenants, to 



 62
 









undertake such an assessment at any reasonable time upon reasonable
notice to the Borrower, all at the sole expense of the Borrower.


SECTION 5.10.      Further
Assurances; etc.


(a)           The
Borrower will, and will cause each of its Subsidiaries to, at the expense of
the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports, landlord waivers and other assurances or instruments and
take such further steps relating to the Collateral covered by any of the
Security Documents as the Collateral Agent may reasonably require and as are
generally consistent with the terms of this Agreement and the Security
Documents.  Furthermore, the Borrower
will, and will cause the other Credit Parties to, deliver to the Collateral
Agent such opinions of counsel and other related documents as may be reasonably
requested by the Administrative Agent to assure compliance with this Section
5.10.


(b)           The
Borrower agrees that each action required by clause (a) of this Section 5.10
shall be completed as soon as possible, but in no event later than 60 days
after such action is requested to be taken by the Administrative Agent or the
Required Lenders (or, if the Borrower is diligently pursuing such action, such
longer period of time as the Administrative Agent may reasonably specify); provided
that in no event will the Borrower or any of its Subsidiaries be required to
take any action, other than using its commercially reasonable best efforts, to
obtain consents from third parties with respect to its compliance with this
Section 5.10.


(c)           If,
following a change in the relevant sections of the Code or the regulations,
rules, rulings, notices or other official pronouncements issued or promulgated
thereunder, the Borrower does not within 30 days after a request from the
Administrative Agent or the Required Lenders deliver evidence, in form and substance
reasonably satisfactory to the Administrative Agent (which evidence may be in
the form of an opinion of counsel), with respect to any Foreign Subsidiary of
the Borrower which has not already had all of its stock pledged pursuant to the
Pledge Agreement that (i) a pledge of 65% or more of the total combined voting
power of all classes of capital stock of such Foreign Subsidiary entitled to
vote and (ii) the entering into by such Foreign Subsidiary of a guarantee in
substantially the form of the Subsidiary Guaranty, in any such case could
reasonably be expected to cause (I) any undistributed earnings of such Foreign
Subsidiary as determined for Federal income tax purposes to be treated as a
deemed dividend to such Foreign Subsidiary’s United States parent for Federal
income tax purposes or (II) other Federal income tax consequences to the Credit
Parties having an adverse financial consequence to any Credit Party in any
material respect, then in the case of a failure to deliver the evidence
described in clause (i) above, that portion of such Foreign Subsidiary’s
outstanding capital stock not theretofore pledged pursuant to the Pledge
Agreement shall be promptly pledged to the Collateral Agent for the benefit of
the Secured Creditors pursuant to the Pledge Agreement (or another pledge
agreement in substantially similar form, if needed), and in the case of a
failure to deliver the evidence described in clause (ii) above such Foreign
Subsidiary shall promptly execute and deliver the Subsidiary Guaranty (or another
guarantee in substantially similar form, if needed), guaranteeing the
obligations of the Borrower under the Credit Documents and under any Swap
Agreement entered into with a Secured Creditor, in each case to the extent that
the entering into of the Pledge Agreement or Subsidiary 



 63
 









Guaranty is permitted by the laws of the respective foreign
jurisdiction and with all documents delivered pursuant to this Section 5.10(c)
to be in form and substance reasonably satisfactory to the Administrative
Agent.  Notwithstanding the foregoing,
the Administrative Agent shall not take a security interest in those assets as
to which the Administrative Agent shall determine, in its reasonable
discretion, that the cost of obtaining such Lien (including any mortgage, stamp,
intangibles or other tax, title insurance or similar items) is excessive in
relation to the benefit to the Lenders of the security afforded thereby.


SECTION 5.11.      Ownership
of Subsidiaries; etc.  Except as
otherwise permitted by Section 6.05(c) or (m) or pursuant to a Permitted
Acquisition consummated in accordance with the terms of this Agreement, the
Borrower will directly or indirectly own 100% of the capital stock or other
equity interests of each of its Subsidiaries (other than, in the case of Foreign
Subsidiaries, director’s qualifying shares and/or other nominal amounts of
shares required to be held by Persons other than the Borrower and its
Subsidiaries under applicable law).


SECTION 5.12.      Margin
Regulations.  The Borrower will take
all actions so that at all times the fair market value of all Margin Stock
owned by the Borrower and its Subsidiaries (other than capital stock of the
Borrower held in treasury) shall not exceed $2,500,000.  So long as the covenant contained in the
immediately preceding sentence is complied with, all Margin Stock at any time
owned by the Borrower and its Subsidiaries will not constitute Collateral and
no security interest shall be granted therein pursuant to any Credit
Document.  Without excusing any violation
of the first sentence of this Section 5.12, if at any time the fair market
value of all Margin Stock owned by the Borrower and its Subsidiaries (other
than capital stock of the Borrower held in treasury) exceeds $2,500,000, then
(a) all Margin Stock owned by the Credit Parties (other than capital stock of
the Borrower held in treasury) shall be pledged, and delivered for pledge,
pursuant to the Pledge Agreement and (b) the Borrower will execute and deliver
to the Lenders appropriate completed forms (including, without limitation,
Forms G-3 and U-1, as appropriate) establishing compliance with Regulations T,
U and X.  If at any time any Margin Stock
is required to be pledged as a result of the provisions of the immediately
preceding sentence, repayments of outstanding obligations hereunder shall be
required, and subsequent makings of Loans and issuances of Letters of Credit
shall be permitted, only in compliance with the applicable provisions of
Regulations T, U and X.


SECTION 5.13.      Additional
Guarantors and Collateral.  Subject
to the proviso in Section 6.03(a)(ix), effective upon (a) any Domestic
Subsidiary (other than an SPC) which is not a Material Subsidiary on the date
hereof (either because it is not a Subsidiary on the date hereof or because it
does not on the date hereof meet the other criteria of a Material Subsidiary)
becoming a Material Subsidiary, the Borrower shall cause such Domestic
Subsidiary within ten Business Days to (i) execute and deliver to the
Administrative Agent for the benefit of the Secured Creditors a joinder to the
Subsidiary Guaranty and (ii) pledge to the Administrative Agent for the benefit
of the Secured Creditors a first priority security interest in all personal
property owned by such Person pursuant to a security agreement substantially similar
to the Security Agreement or (b) the liquidation of Manitowoc Foodservice
Europe S.r.l., a company organized under the laws of Italy, not having occurred
on or before March 31, 2007, the Borrower shall cause within forty-five
Business Days a pledge of 65% of the total combined voting power of all classes
of capital stock of such Foreign Subsidiary entitled to vote, in each 



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case pursuant to documentation (including related certificates,
opinions and financing statements) reasonably acceptable to the Administrative
Agent.  The Borrower shall promptly
notify the Administrative Agent at any time at which any Domestic Subsidiary
becomes a Material Subsidiary or if Manitowoc Foodservice Europe S.r.l. has not
been liquidated as of March 31, 2007.


ARTICLE
VI


Negative
Covenants


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


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


(a)           Indebtedness
created under the Credit Documents;


(b)           Indebtedness
existing on the Original Effective Date and set forth in Schedule 6.01 (as
reduced by any permanent repayments of principal thereof, and extensions,
renewals and replacements of any such Indebtedness that do not increase the
principal amount or facility amount, as applicable, outstanding at the time of
any such extension, renewal or replacement);


(c)           intercompany
Indebtedness among the Borrower and its Subsidiaries to the extent permitted by
Sections 6.05(i) and (j);


(d)           Indebtedness
of the Borrower or any of its Subsidiaries under Swap Agreements entered into
in the ordinary course of business with respect to other Indebtedness permitted
under this Section 6.01, with respect to commodity hedging arrangements or with
respect to currency hedging arrangements so long as, in each case, the entering
into of such Swap Agreements are bona fide hedging activities and are not for
speculative purposes;


(e)           Indebtedness
of the Borrower and its Subsidiaries evidenced by Capital Lease Obligations and
purchase money Indebtedness described in Section 6.02(j);


(f)            Indebtedness
of a Subsidiary of the Borrower acquired pursuant to a Permitted Acquisition
(or Indebtedness assumed at the time of a Permitted Acquisition of an asset
securing such Indebtedness), provided that (i) such Indebtedness was not
incurred in connection with, or in anticipation or contemplation of, such
Permitted Acquisition, (ii) such Indebtedness does not constitute debt for
borrowed money, it being understood and agreed that Capital Lease Obligations
and purchase money Indebtedness shall not constitute debt for borrowed money
for purposes of this clause (ii) and (iii) the aggregate principal amount of
all Indebtedness permitted by this clause (f) shall not exceed $25,000,000 at
any one time outstanding;



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(g)           Indebtedness
in respect of bid, payments, performance, advance payment or surety bonds
entered into in the ordinary course of business and consistent with past
practices;


(h)           to
the extent that same constitutes Indebtedness, obligations in respect of
earn-out arrangements permitted pursuant to a Permitted Acquisition;


(i)            Indebtedness
of Foreign Subsidiaries of the Borrower under lines of credit to any such
Foreign Subsidiary from Persons other than the Borrower or any of its
Subsidiaries, the proceeds of which Indebtedness are used for such Foreign
Subsidiary’s working capital and other general corporate purposes; provided
that the aggregate principal amount of all such Indebtedness outstanding at any
time for all such Foreign Subsidiaries (excluding Indebtedness set forth on
Schedule 6.01 and refinancings thereof by the applicable Subsidiary so long as
such refinancings do not increase the amount of the applicable Indebtedness nor
provide security not applicable to such scheduled Indebtedness) shall not
exceed $35,000,000;


(j)            [RESERVED];


(k)           Receivables
Indebtedness; provided that the Borrower shall at no time permit the
aggregate outstanding amount of Receivables Indebtedness to exceed
$125,000,000;


(l)            Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of business
so long as such Indebtedness is extinguished within four Business Days of the
incurrence thereof;


(m)          Indebtedness
of the Borrower or any of its Subsidiaries which may be deemed to exist in
connection with agreements providing for indemnification, purchase price adjustments
and similar obligations in connection with the acquisition or disposition of
assets permitted by this Agreement so long as any such obligations are those of
the Person making the respective acquisition or sale, and are not guaranteed by
any other Person (other than the Borrower or a Subsidiary to the extent
permitted by Section 6.01(o));


(n)           unsecured
guarantees by the Borrower and its Subsidiaries in respect of Customer
Financing;


(o)           Indebtedness
consisting of guarantees (x) by the Credit Parties of each other’s Indebtedness
and lease and other contractual obligations permitted under this Agreement, (y)
by External Subsidiaries of each other’s Indebtedness and lease and other
contractual obligations permitted under this Agreement or (z) by any Credit
Party of any Indebtedness and lease and other contractual obligations permitted
under this Agreement of any External Subsidiary so long as the amount of such
Guarantee, when aggregated with (1) the aggregate outstanding principal amount
of Intercompany Loans which are restricted in amount by the proviso to Section
6.05(i) and (2) the aggregate amount of contributions, capitalizations and debt
forgiveness which are restricted in amount by the proviso to Section 6.05(j)
and which have theretofore been made and not repaid do not at any time exceed
the Dollar Equivalent of $60,000,000;


(p)           Indebtedness
incurred as part of the Restructuring Transactions;



 66















(q)           Indebtedness of a
Chinese finance Subsidiary, provided that the aggregate principal amount
of such Indebtedness outstanding at any time does not exceed the Dollar
Equivalent of $25,000,000; and


(r)            so long as no
Default or Event of Default then exists or would result therefrom, additional
unsecured Indebtedness incurred by the Borrower and the Subsidiary Guarantors
(other than Indebtedness of the type described in Section 6.01(o)(z).


SECTION 6.02.      Liens.  The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon or with respect to any property or assets of the Borrower or any of its
Subsidiaries, whether now owned or hereafter acquired, or sell any property or
assets subject to an understanding or agreement, contingent or otherwise, to
repurchase such property or assets (including sales of accounts receivable with
recourse to the Borrower or any of its Subsidiaries), or assign any right to
receive income or authorize the filing of any financing statement under the UCC
or any other similar notice of Lien under any similar recording or notice
statute; provided that the provisions of this Section 6.02 shall not
prevent the creation, incurrence, assumption or existence of the following
(Liens described below are herein referred to as “Permitted Liens”):


(a)           inchoate Liens for
taxes, assessments or governmental charges or levies not yet due or Liens for
taxes, assessments or governmental charges or levies being contested in good
faith and by appropriate proceedings for which adequate reserves have been
established in accordance with generally accepted accounting principles;


(b)           Liens in respect of
property or assets of the Borrower or any of its Subsidiaries imposed by law,
which were incurred in the ordinary course of business and do not secure
Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s
and mechanics’ liens and other similar Liens arising in the ordinary course of
business, and (x) which do not in the aggregate materially detract from the
value of the Borrower’s or such Subsidiary’s property or assets or materially
impair the use thereof in the operation of the business of the Borrower or such
Subsidiary or (y) which are being contested in good faith by appropriate
proceedings for which adequate reserves have been established in accordance
with generally accepted accounting principles and which proceedings have the
effect of preventing the forfeiture or sale of the property or assets subject
to any such Lien;


(c)           Liens (other than
Liens imposed under ERISA) (i) incurred in the ordinary course of business in
connection with workers compensation claims, unemployment insurance and social
security benefits and (ii) Liens securing the performance of bids, tenders, leases
and contracts in the ordinary course of business and statutory obligations,
surety bonds, performance bonds and other obligations of a like nature (other
than appeal bonds) incurred in the ordinary course of business;


(d)           easements,
rights-of-way, restrictions, encroachments, municipal and zoning ordinances and
other similar charges or encumbrances, and minor title deficiencies, in each
case not securing Indebtedness and not materially interfering with the conduct
of the business of the Borrower or any of its Subsidiaries;



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(e)           Liens arising out of
the existence of judgments or awards in respect of which the Borrower or any of
its Subsidiaries shall in good faith be prosecuting an appeal or proceedings
for review and in respect of which there shall have been secured a subsisting
stay of execution pending such appeal or proceedings; provided that the
aggregate amount of all cash (including, for this purpose, the amount of all
letters of credit) and the fair market value of all other property pledged or deposited
to obtain a subsisting stay of execution pending such appeal does not exceed
$7,500,000 at any time outstanding;


provided that Liens described in
clauses (a) through (e) of this Section 6.02 shall not include Liens securing
Indebtedness;


(f)            Liens in existence
on the Original Effective Date which are listed, and the property subject
thereto described, in Schedule 6.02, plus renewals, replacements and extensions
of such Liens to the extent set forth in Schedule 6.02; provided that
(i) such Liens secure no more than the aggregate principal amount of
Indebtedness, if any, secured by such Liens on the Original Effective Date and
(ii) such Liens do not encumber any additional assets or properties of the
Borrower or any of its Subsidiaries other than those encumbered on the Original
Effective Date;


(g)           Liens created
pursuant to the Security Documents;


(h)           licenses,
sublicenses, leases or subleases granted to other Persons not materially
interfering with the conduct of the business of the Borrower or any of its
Subsidiaries;


(i)            Liens on assets of
the Borrower or any of its Subsidiaries subject to Capital Lease Obligations to
the extent such Capital Lease Obligations are permitted by Section 6.01(e); provided
that (i) such Liens only serve to secure the payment of Indebtedness arising
under such Capital Lease Obligation and (ii) the Lien encumbering the asset
giving rise to the Capital Lease Obligation does not encumber any other asset
of the Borrower or any Subsidiary of the Borrower (other than proceeds of the
asset giving rise to such Capital Lease Obligation);


(j)            Liens on fixed or
capital assets acquired after the Original Effective Date and used in the
ordinary course of business of the Borrower or any of its Subsidiaries and
created at the time of the acquisition thereof by the Borrower or such
Subsidiary or within 90 days thereafter to secure Indebtedness incurred to pay
all or a portion of the purchase price thereof or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount; provided
that (i) the Indebtedness secured by such Liens is permitted by Section 6.01(e)
and (ii) in all events, any Lien encumbering the equipment or machinery so
acquired does not encumber any other asset of the Borrower or such Subsidiary
(other than proceeds of such equipment or machinery);


(k)           Liens arising from
precautionary UCC financing statement filings regarding operating leases
entered into in the ordinary course of business;


(l)            statutory and
common law landlords’ liens under leases to which the Borrower or any of its
Subsidiaries is a party;



 68
 









(m)          Liens on property or
assets acquired pursuant to a Permitted Acquisition, or on property or assets
of a Subsidiary of the Borrower in existence at the time such Subsidiary is
acquired pursuant to a Permitted Acquisition; provided that (i) any
Indebtedness that is secured by such Liens is permitted to exist under Section
6.01(f), (ii) such Liens are not created in connection with, or in
contemplation or anticipation of, such Permitted Acquisition and do not attach
to any other asset of the Borrower or any of its Subsidiaries and (iii) such
Liens secure no more than the aggregate principal amount of the Indebtedness,
if any, secured by such Liens on the date of the Permitted Acquisition;


(n)           Liens on assets of
Foreign Subsidiaries that are not Credit Parties and that secure Indebtedness
permitted to be incurred by such Foreign Subsidiaries pursuant to Section 6.01;


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


(p)           Liens granted by
Subsidiaries of the Borrower that are not Credit Parties in favor of the
Borrower or any Subsidiary Guarantor;


(q)           Liens upon assets of
an SPC granted in connection with a Permitted Securitization (including
customary backup Liens granted by the transferor in accounts receivable and
related rights transferred to an SPC);


(r)            customary Liens in
favor of banking institutions encumbering deposits (including the right of
set-off) held by such banking institutions incurred in the ordinary course of
business;


(s)           rights of customers
(or institutions providing financing to such customers) with respect to
inventory which arise from deposits and progress payments made in the ordinary
course of business;


(t)            Liens arising out
of the rights of buyers of accounts under Factoring Agreements in the ordinary
course of business; and


(u)           other Liens
incidental to the conduct of the business of the Borrower or any of its
Subsidiaries that (i) were not incurred in connection with Indebtedness, (ii)
do not encumber any Collateral (other than on a junior and subordinated basis)
and do not materially detract from the value of the assets subject to such
Liens or materially impair the use thereof in the operation of such business
and (iii) do not at any time for all such Liens encumber cash and other
property having an aggregate value in excess of, or secure outstanding
obligations in the aggregate in excess of, $10,000,000 at any time outstanding.


SECTION 6.03.      Merger,
Purchase or Sale of Assets, Change in Business.


(a)           The Borrower will
not, and will not permit any of its Subsidiaries to, wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of all or any part of its property
or assets (whether now owned or hereafter acquired), or enter into any
sale-leaseback transactions, or purchase or



 69
 









otherwise
acquire (in one or a series of related transactions) any part of the property
or assets (other than purchases or other acquisitions of inventory, materials
and equipment in the ordinary course of business) of any Person (or agree to do
any of the foregoing at any future time), except that:


(i)            capital expenditures by the Borrower
or any of its Subsidiaries shall be permitted;


(ii)           each of the Borrower and its
Subsidiaries may make sales and/or rentals of inventory in the ordinary course
of business;


(iii)          each of the Borrower and its
Subsidiaries may sell or otherwise transfer obsolete, uneconomic or worn-out
equipment, materials or other assets in the ordinary course of business;


(iv)          Investments may be made to the extent
permitted by Section 6.05;


(v)           the Borrower and its Subsidiaries may
sell assets (other than the capital stock or other equity interests of any
Wholly-Owned Subsidiary unless all of the capital stock or other equity
interests are sold in accordance with this clause (v)) so long as (A) no
Default or Event of Default then exists or would result therefrom, (B) each
such sale is in an arm’s-length transaction and the Borrower or the respective
Subsidiary receives at least fair market value (as determined in good faith by
the Borrower or such Subsidiary, as the case may be), (C) other than with respect
to any transaction permitted by subsection (xvii) hereof, the total
consideration received by the Borrower or such Subsidiary is at least 80% cash
and is paid at the time of the closing of such sale and (D) the aggregate
amount of the proceeds received from all assets sold pursuant to this clause
(v) shall not exceed $50,000,000 in any fiscal year of the Borrower;


(vi)          each of the Borrower and its
Subsidiaries may lease (as lessee) or license (as licensee) real or personal
property (so long as any such lease or license does not create a Capital Lease
Obligation except to the extent permitted by Section 6.01(e));


(vii)         each of the Borrowers and its
Subsidiaries may sell or discount accounts receivable arising in the ordinary
course of business in Specified Transactions so long as (A) such sales or
discounts occur only in connection with the collection of such accounts
receivable and (B) after giving effect to any such sale or discount, the
aggregate recourse exposure of the Borrower and its Subsidiaries with respect
to all Specified Transactions does not exceed $50,000,000.


(viii)        each of the Borrower and its
Subsidiaries may grant licenses, sublicenses, leases or subleases to other
Persons not materially interfering with the conduct of the business of the
Borrower or any of its Subsidiaries, in each case so long as no such grant
otherwise affects the Collateral Agent’s security interest in the asset or
property subject thereto;


(ix)           the Borrower may transfer assets to
any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary
Guarantor (or which substantially



 70
 









contemporaneously with such transfer becomes
a Subsidiary Guarantor) and any Subsidiary of the Borrower may transfer assets
to the Borrower or to any Wholly-Owned Domestic Subsidiary of the Borrower
which is a Subsidiary Guarantor (or which substantially contemporaneously with
such transfer becomes a Subsidiary Guarantor), in each case so long as the
security interests granted to the Collateral Agent for the benefit of the
Secured Creditors pursuant to the Security Documents in the assets so
transferred shall remain in full force and effect and perfected (to at least
the same extent as in effect immediately prior to such transfer); provided,
however, that the Borrower and its Subsidiaries may also consummate the Sale
Restructuring  so long as within 10
Business Days after membership interests in any Subsidiary are transferred to a
newly formed Wholly-Owned Subsidiary of the Borrower pursuant to the Sale
Restructuring such newly formed Person either complies with the foregoing
guaranty and security requirements or else consummates the Sale Transaction and
ceases to be a Material Subsidiary;


(x)            any Subsidiary of the Borrower may
merge with and into, or be dissolved or liquidated into, the Borrower or any
Wholly-Owned Domestic Subsidiary of the Borrower so long as (I) in the case of
any such merger, dissolution or liquidation involving the Borrower, the
Borrower is the surviving corporation of any such merger, dissolution or
liquidation, (II) in all other cases, a Wholly-Owned Domestic Subsidiary is the
surviving corporation of any such merger, dissolution or liquidation, (III) in
all cases, the security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Security Documents in the
assets of such Subsidiary shall remain in full force and effect and perfected
(to at least the same extent as in effect immediately prior to such merger,
dissolution or liquidation) and (IV) the Borrower has complied with Section
5.13, if applicable;


(xi)           any Foreign Subsidiary of the
Borrower may merge with and into, or be dissolved or liquidated into, or
transfer any of its assets to, any Wholly-Owned Subsidiary of the Borrower so
long as (I) the Wholly-Owned Subsidiary of the Borrower is the survivor of such
merger, dissolution or liquidation, and (II) any security interests granted to
the Collateral Agent for the benefit of the Secured Creditors pursuant to the
Security Documents in the equity interests of such Foreign Subsidiary or
Wholly-Owned Subsidiary shall remain in full force and effect and perfected (to
at least the same extent as in effect immediately prior to such merger,
dissolution or liquidation);


(xii)          Permitted Acquisitions may be made to
the extent permitted by Section 6.05(m);


(xiii)         Subsidiaries of the Borrower may
repurchase equipment as may be required in accordance with the terms of the
Buy-Back Arrangements relating to such equipment;


(xiv)        subject to Section 6.01(k) and so long
as no Default or Event of Default then exists or would result therefrom, each
of the Borrower and its Subsidiaries may from time to time (I) sell accounts
receivable (and rights ancillary thereto) pursuant to, and in accordance with
the terms of, a Permitted Securitization or Factoring Agreement and (II)



 71
 









repurchase accounts receivable theretofore
sold pursuant to a Permitted Securitization or Factoring Agreement in the
ordinary course of business.


(xv)         the Borrower may enter into one or more
Sale-Leaseback Transactions;


(xvi)        Restricted Payments may be made as, and
to the extent, permitted by Section 6.04;


(xvii)       prior to March 31, 2007, the Borrower or
its Subsidiaries may consummate the Sale Transaction on terms acceptable to the
Administrative Agent; and


(xviii)      the Borrower and its Subsidiaries may
consummate the Restructuring Transactions.


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


SECTION 6.04.      Restricted
Payments.  The Borrower will not, and
will not permit any of its Subsidiaries to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, except (a) the Borrower
may declare and pay dividends with respect to its Equity Interests payable
solely in additional shares of its common stock, (b) Subsidiaries may declare
and pay dividends ratably with respect to their Equity Interests, (c) the
Borrower may make Restricted Payments pursuant to and in accordance with stock
option plans or other benefit plans for directors, management or employees of
the Borrower and its Subsidiaries, (d) the Borrower and its Subsidiaries may
consummate the Restructuring Transactions and (e) so long as no Default has
occurred and is continuing or would result from therefrom, then (i) at any time
when the Consolidated Senior Leverage Ratio is less than 2.00 to 1.00 the
Borrower may make Restricted Payments which, when aggregated with all other
Restricted Payments made pursuant to this Section 6.04(e) during the then
current calendar year do not exceed $50,000,000 and (ii) at any time when the
Consolidated Senior Leverage Ratio is greater than or equal to 2.00 to 1.00 and
less than 3.00 to 1.00  the Borrower may
make Restricted Payments which, when aggregated with all other Restricted
Payments made pursuant to this Section 6.04(e) during the then current calendar
year do not exceed $25,000,000; provided that in the case of either
Section (e)(i) or (e)(ii), the Borrower shall have delivered to the
Administrative Agent and each Lender a certificate satisfactory in form and
substance to the Administrative Agent and executed by its chief financial
officer or treasurer evidencing compliance with the requirements of such
Section and in no event shall the Borrower make a Restricted Payment in
violation of the terms of any Material Indebtedness.


SECTION 6.05.      Advances,
Investments and Loans.  The Borrower
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, purchase or acquire (including pursuant to any merger with any
Person not a Wholly-Owned Subsidiary prior to such merger) any stock,
obligations or securities (including any option, warrant or other right to
acquire any of the foregoing) of, or any other interest in, or make any capital
contribution to, any Person, or lend money or make advances to any Person, or
purchase or own a futures contract or otherwise



 72
 









become liable
for the purchase or sale of currency or other commodities at a future date in
the nature of a futures contract, or hold any cash or Cash Equivalents (each of
the foregoing an “Investment” and, collectively, “Investments”),
except that the following shall be permitted:


(a)           the Borrower and its
Domestic Subsidiaries may acquire and hold cash and Cash Equivalents and
Foreign Subsidiaries of the Borrower may acquire and hold cash and Foreign Cash
Equivalents;


(b)           the Borrower and its
Subsidiaries may hold the Investments held by them on the Original Effective
Date and described on Schedule 6.05, provided that any additional
Investments made with respect thereto shall be permitted only if independently
permitted under the other provisions of this Section 6.05;


(c)           the Borrower and its
Subsidiaries may acquire and own investments (including debt obligations)
received in connection with the bankruptcy or reorganization of suppliers and
customers and in good faith settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course of
business;


(d)           the Borrower and its
Subsidiaries may make loans and advances to their officers and employees for
moving, relocation and travel expenses and other similar expenditures, in each
case in the ordinary course of business in an aggregate amount not to exceed
$1,000,000 at any time outstanding (determined without regard to any
write-downs or write-offs of such loans and advances);


(e)           the Borrower may
acquire and hold obligations of one or more officers, directors or other
employees of the Borrower or any of its Subsidiaries in connection with such
officers’, directors’ or employees’ acquisition of shares of capital stock of
the Borrower so long as no cash is paid by the Borrower or any of its
Subsidiaries to such officers, directors or employees in connection with the
acquisition of any such obligations;


(f)            the Borrower and
its Subsidiaries may enter into Swap Agreements to the extent permitted by
Section 6.01(d);


(g)           the Borrower and its
Subsidiaries may acquire and hold promissory notes and other non-cash
consideration issued by the purchaser of assets in connection with a sale of
such assets to the extent permitted by Sections 6.03(a)(iii) and (v);


(h)           the Borrower and its
Subsidiaries may acquire and hold accounts receivables owing to any of them (i)
if created or acquired in the ordinary course of business of the Borrower or
such Subsidiary or (ii) as contemplated by Section 6.03(a)(xiv)(II);


(i)            the Borrower and
its Wholly-Owned Subsidiaries may make intercompany loans and advances between
and among one another (collectively, “Intercompany Loans”); provided
that (I) at no time shall the sum of (A) the aggregate outstanding principal
amount of all Intercompany Loans (excluding Intercompany Loans outstanding on
the Original Effective Date hereof and set forth on Schedule 1.02) made
pursuant to this clause (i) by Credit Parties to External Subsidiaries
(excluding for this purpose, however, the aggregate outstanding principal
amount of all Excluded Transfers made pursuant to this clause (i)), plus (B)
the aggregate



 73
 









amount of
contributions, capitalizations and forgiveness theretofore made by Credit
Parties pursuant to Section 6.05(j) to (or in respect of) External Subsidiaries
(excluding for this purpose, however, the aggregate amount of Excluded
Transfers made pursuant to Section 6.05(j) and, in any event, net of cash
equity returns), plus (C) the outstanding amount of Guarantees issued pursuant
to Section 6.01(o)(z) exceed the Dollar Equivalent of $60,000,000 (determined
without regard to any write-downs or write-offs of such Intercompany Loans),
(II) no Intercompany Loans may be made by a Credit Party to an External
Subsidiary at a time that an Event of Default exists and is continuing, (III)
any such Intercompany Loan made by a Credit Party shall be evidenced by an
Intercompany Note which shall be pledged to the Collateral Agent to the extent
required pursuant to the Pledge Agreement, and (IV) each Intercompany Loan made
to any Credit Party by an External Subsidiary shall include (or, if not
evidenced by an Intercompany Note, the books and records of the respective
parties shall note that such Intercompany Loan shall be subject to) the
subordination provisions attached as Annex A to the form of Intercompany Note;


(j)            the Borrower and
its Wholly-Owned Subsidiaries may make cash capital contributions to their
respective Wholly-Owned Subsidiaries, and may capitalize or forgive any
Indebtedness owed to them by a Wholly-Owned Foreign Subsidiary and outstanding
under clause (i) of this Section 6.05; provided that at no time shall
(I) the sum of (A) the aggregate amount of such contributions, capitalizations
and forgiveness made by Credit Parties to External Subsidiaries (excluding for
this purpose, however, the aggregate amount of Excluded Transfers made pursuant
to this clause (j) and, in any event, net of cash equity returns), plus (B) the
aggregate outstanding principal amount of Intercompany Loans (excluding
Intercompany Loans outstanding on the Original Effective Date and set forth on
Schedule 1.02) made by Credit Parties to External Subsidiaries pursuant to
Section 6.05(i) (determined without regard to any write-downs or write-offs
thereof) (excluding for this purpose, however, the aggregate outstanding
principal amount of all Excluded Transfers made pursuant to Section 6.05(i),
plus (C) the outstanding amount of Guarantees issued pursuant to Section
6.01(o)(z), exceed the Dollar Equivalent of $60,000,000, (II) Credit Parties
may only make capital contributions to, and capitalize or forgive any
Indebtedness owed to them by, a Wholly-Owned Foreign Subsidiary pursuant to
this clause (j) to the extent (A) required to comply with any thin
capitalization rules applicable to such Wholly-Owned Foreign Subsidiary or (B)
that the making of Intercompany Loans to such Wholly-Owned Foreign Subsidiary
would have adverse tax consequences to the Credit Party making the same, and
(III) no such contributions, capitalizations or forgivenesses may be made by a
Credit Party to a External Subsidiary at any time that an Event of Default
exists and is continuing;


(k)           the Borrower and its
Subsidiaries may make transfers of assets to their respective Subsidiaries as
permitted by Sections 6.03(a)(ix), (x) and (xi);


(l)            so long as no
Default or Event of Default then exists or would result therefrom, the Borrower
and its Subsidiaries may make Investments not otherwise permitted by clauses
(a) through (k) above or clause (m) below of this Section 6.05 in an aggregate
amount not to exceed $50,000,000 (taking the fair market value (as determined
in good faith by the Borrower) of property other than cash) at any time
outstanding (determined without regard to any write-downs or write-offs
thereof);


 



 74















(m)          subject to the
provisions of this Section 6.05(m) and the requirements contained in the
definition of Permitted Acquisition, the Borrower and its Wholly-Owned
Subsidiaries may from time to time effect Permitted Acquisitions, so long as:
(i) no Default or Event of Default shall have occurred and be continuing at the
time of the consummation of the proposed Permitted Acquisition or immediately
after giving effect thereto; (ii) if the proposed Permitted Acquisition is for
aggregate consideration of $35,000,000 or more, the Borrower shall have given
to the Administrative Agent at least 10 Business Days’ prior written notice of
such proposed Permitted Acquisition (or such shorter period of time as may be
reasonably acceptable to the Administrative Agent), which notice shall be
executed by its chief financial officer or treasurer and shall describe in
reasonable detail the principal terms and conditions of such Permitted
Acquisition and shall be accompanied by calculations demonstrating that, giving
effect to such proposed Permitted Acquisition and any Indebtedness incurred in
connection therewith, on a Pro Forma Basis the Consolidated Senior Leverage
Ratio is less than 2.75 to 1.0 and (iii) at the time of any such Permitted
Acquisition involving the creation or acquisition of a Subsidiary, or the
acquisition of capital stock or other equity interest of any Person, the
capital stock or other equity interests thereof created or acquired in
connection with such Permitted Acquisition shall have been pledged for the benefit
of the Secured Creditors pursuant to (and to the extent required by) the Pledge
Agreement and such Person, if a Domestic Subsidiary which is a Material
Subsidiary, shall have executed and delivered to the Administrative Agent a
joinder to the Subsidiary Guaranty; and


(n)           the Borrower and its
Subsidiaries may consummate the Restructuring Transactions.


SECTION 6.06.      Transactions
with Affiliates.  The Borrower will
not, and will not permit any of its Subsidiaries to, enter into any transaction
or series of related transactions with any Affiliate of the Borrower or any of
its Subsidiaries, other than in the ordinary course of business and on terms
and conditions substantially as favorable to the Borrower or such Subsidiary as
would reasonably be obtained by the Borrower or such Subsidiary at that time in
a comparable arm’s-length transaction with a Person other than an Affiliate,
except that the following in any event shall be permitted:


(a)           Restricted Payments
may be made to the extent permitted by Section 6.04;


(b)           loans may be made
and other transactions may be entered into by the Borrower and its Subsidiaries
to the extent permitted by Sections 6.01, 6.03 and 6.05;


(c)           customary fees may
be paid to non-officer directors of the Borrower and its Subsidiaries;


(d)           the Borrower and its
Subsidiaries may enter into, and may make payments under, employment
agreements, employee benefits plans, stock option plans, indemnification
provisions, severance arrangements, and other similar compensatory arrangements
with officers, employees and directors of the Borrower and its Subsidiaries in
the ordinary course of business;



 75
 









(e)           Subsidiaries
of the Borrower may pay management fees, licensing fees and similar fees to (i)
the Borrower or any Subsidiary Guarantor or (ii) any other Subsidiary so long
as such fees are no greater than would result from an arm’s-length transaction;


(f)            the
Borrower and its Subsidiaries may consummate the Restructuring Transactions;
and


(g)           the
Borrower and its Wholly-Owned Subsidiaries may otherwise engage in transactions
exclusively between or among themselves so long as such transactions are
otherwise permitted under this Agreement.


SECTION 6.07.      Minimum
Consolidated Interest Coverage Ratio. 
The Borrower will not permit the Consolidated Interest Coverage Ratio
for any fiscal quarter of the Borrower set forth below to be less than or equal
to the ratio set forth opposite such fiscal quarter below:




	
  Fiscal Quarter Ending

  	
   

  	
  Ratio

  	
   

  
	
  June 30, 2005

  	
   

  	
  2.00:1.00

  	
   

  
	
  September 30,
  2005

  	
   

  	
  2.00:1.00

  	
   

  
	
  December 31,
  2005

  	
   

  	
  2.00:1.00

  	
   

  
	
  March 31, 2006

  	
   

  	
  2.00:1.00

  	
   

  
	
  June 30, 2006

  	
   

  	
  2.00:1.00

  	
   

  
	
  September 30,
  2006

  	
   

  	
  2.00:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  December 31,
  2006

  	
   

  	
  2.25:1.00

  	
   

  
	
  March 31, 2007

  	
   

  	
  2.25:1.00

  	
   

  
	
  June 30, 2007

  	
   

  	
  2.25:1.00

  	
   

  
	
  September 30,
  2007

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  December 31,
  2007

  	
   

  	
  2.50:1.00

  	
   

  
	
  March 31, 2008

  	
   

  	
  2.50:1.00

  	
   

  
	
  June 30, 2008

  	
   

  	
  2.50:1.00

  	
   

  
	
  September 30,
  2008

  	
   

  	
  2.50:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  December 31,
  2008

  	
   

  	
  2.75:1.00

  	
   

  
	
  March 31, 2009

  	
   

  	
  2.75:1.00

  	
   

  
	
  June 30, 2009

  	
   

  	
  2.75:1.00

  	
   

  
	
  September 30,
  2009

  	
   

  	
  2.75:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Thereafter

  	
   

  	
  3.00:1.00

  	
   

  






 


SECTION 6.08.      Maximum
Consolidated Senior Leverage Ratio. 
The Borrower will cause the Consolidated Senior Leverage Ratio to at all
times be less than 3.0 to 1.0.


SECTION 6.09.      Maximum
Consolidated Total Leverage Ratio. 
The Borrower will cause the Consolidated Total Leverage Ratio to be (a)
less than 4.00 to 1.00 at all times 



 76
 









during the period from the Effective Date to and including June 30,
2008 and (b) less than 3.75 to 1.00 at all times thereafter.


SECTION 6.10.      Limitations
on Prepayments of Certain Indebtedness; Modifications of Certain Indebtedness;
Modifications of Certificate of Incorporation, By-Laws and Certain Other
Agreements, etc.  The Borrower will
not, and will not permit any of its Subsidiaries to:


(a)           make
(or give any notice in respect of) any voluntary or optional payment or
prepayment on or redemption or acquisition for value of, or any prepayment or
redemption as a result of any asset sale, change of control or similar event of
(including in each case, without limitation, by way of depositing with the
trustee with respect thereto or any other Person money or securities before due
for the purpose of paying when due), (i) any Indebtedness (other than the
Obligations) unless no Default has occurred and is continuing or (ii) any
Senior Notes, Subordinated Notes or other Indebtedness which is subordinated to
the Obligations unless the Consolidated Senior Leverage Ratio immediately prior
to making such payment is less than 2.5 to 1.0;


(b)           amend
or modify, or permit the amendment or modification of, any provision of any
Subordinated Note Document or Senior Note Document; or


(c)           amend,
modify or change any Factoring Agreement, any Permitted Securitization
documentation, any Tax Sharing Agreement or its certificate or articles of incorporation,
certificate of formation, limited liability company agreement or by laws (or
the equivalent organizational documents), as applicable, or any agreement
entered into by it with respect to its capital stock or other equity interests
(including any shareholders’ agreement), or enter into any new Factoring
Agreement, Permitted Securitization documentation, Tax Sharing Agreement or
agreement with respect to its capital stock or other equity interests, unless
such new agreement or amendment, modification, change or other action
contemplated by this clause (c) could not reasonably be expected to be adverse
to the interests of the Lenders in any material respect.


SECTION 6.11.      Restrictive
Agreements.  The Borrower will not,
and will not permit any of its Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Subsidiary to create, incur or permit to exist any Lien upon
any of its property or assets, or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its capital
stock or to make or repay loans or advances to the Borrower or any other
Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by this Agreement or the other
Credit Documents, (ii) the foregoing shall not apply to restrictions and
conditions existing on the Original Effective Date identified on Schedule 6.11
(but shall apply to any extension or renewal of, or any amendment or
modification expanding the scope of, any such restriction or condition), (iii)
the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary pending such sale,
provided such restrictions and conditions apply only to the Subsidiary that is
to be sold and such sale is permitted hereunder, (iv) clause (a) of the
foregoing shall not apply to 



 77
 









restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (v) clause
(a) of the foregoing shall not apply to customary provisions in leases and
other contracts restricting the assignment thereof.


SECTION 6.12.      End
of Fiscal Years; Fiscal Quarters. 
The Borrower will cause (i) each of its fiscal years to end on December
31 of each year and (ii) its fiscal quarters to end on March 31, June 30,
September 30 and December 31, respectively, of each year.


SECTION 6.13.      Limitation
on Issuance of Capital Stock.


(a)           The
Borrower will not, and will not permit any of its Subsidiaries to, issue (i)
any preferred stock or other preferred equity interests other than Qualified
Preferred Stock of the Borrower or (ii) any redeemable common stock or other
redeemable common equity interests other than common stock or other redeemable
common equity interests that is redeemable at the sole option of the Borrower
or such Subsidiary, as the case may be.


(b)           The
Borrower will not permit any of its Subsidiaries to issue any capital stock or
other equity interests (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, capital stock
or other equity interests, except (i) for transfers and replacements of then
outstanding shares of capital stock or other equity interests, (ii) for stock
splits, stock dividends and issuances which do not decrease the percentage
ownership of the Borrower or any of its Subsidiaries in any class of the
capital stock or other equity interests of such Subsidiary, (iii) in the case
of Foreign Subsidiaries, to qualify directors to the extent required by
applicable law and for other nominal share issuances to Persons other than the
Borrower and its Subsidiaries to the extent required under applicable law, or
(iv) for issuances by newly created or acquired Subsidiaries in accordance with
the terms of this Agreement.


(c)           Notwithstanding
(a) and (b) above, the Borrower and its Subsidiaries may consummate the
Restructuring Transactions.


SECTION 6.14.      Limitation
on Creation of Subsidiaries.  The
Borrower will not, and will not permit any of its Subsidiaries to, establish,
create or acquire after the Effective Date any Subsidiary; provided that
the Borrower and its Wholly-Owned Subsidiaries shall be permitted to (A)
establish, create and, to the extent permitted by this Agreement, acquire
Wholly-Owned Subsidiaries so long as (i) the equity interests of each such new
Wholly-Owned Subsidiary is pledged pursuant to, and to the extent required by,
the Pledge Agreement, (ii) if required by Section 5.13, each such new
Wholly-Owned Domestic Subsidiary (and, to the extent required by Section 5.10,
each such new Wholly-Owned Foreign Subsidiary) executes a counterpart of the
Subsidiary Guaranty, the Pledge Agreement and the Security Agreement, and (iii)
each such new Wholly-Owned Domestic Subsidiary (and, to the extent required by
Section 5.10, each such new Wholly-Owned Foreign Subsidiary), to the extent
requested by the Administrative Agent or the Required Lenders, takes all
actions required pursuant to Section 5.10, and (B) establish, create and
acquire non-Wholly-Owned Subsidiaries in each case to the extent permitted by
Section 6.05(l) and the definition of Permitted Acquisition so long as the
equity interest of each such non-Wholly-Owned Subsidiary is pledged pursuant
to, and to the 



 78
 









extent required by, the Pledge Agreement.  In addition, each such new Wholly-Owned
Subsidiary which is required to become a Credit Party shall execute and
deliver, or cause to be executed and delivered, all other relevant documentation
of the type described in Article IV as such new Wholly-Owned Subsidiary would
have had to deliver if such new Wholly-Owned Subsidiary were a Credit Party on
the Original Effective Date.


SECTION 6.15.      Rental
Fleet.  The Borrower will not permit
the aggregate net book value of all crane products of the Borrower and its
Subsidiaries that are part of their Rental Fleet to exceed $100,000,000 at any
time.


SECTION 6.16.      Sale-Leaseback
Restriction.  The Borrower will not
permit the Sale-Leaseback Differential as of the end of any fiscal quarter of
the Borrower to exceed an amount equal to 10% of Consolidated EBITDA for the
four fiscal quarter period then ended.


SECTION 6.17.      Buy-Back
Limitation.  The Borrower (a) will
not permit the Dollar Equivalent amount of the Buy-Back Obligations at any time
to exceed an amount equal to 17.5% of Consolidated Tangible Net Assets,
determined as of the most recent fiscal quarter end of the Borrower and (b)
will not permit the Dollar Equivalent of the aggregate amount of Buy-Back
Obligations which may, under any circumstances, expire or amortize in any
fiscal year of the Borrower which ends or any portion of which occurs prior to
the Maturity Date to exceed an amount equal to 4% of Consolidated Tangible Net
Assets, determined as of the most recent fiscal quarter end of the Borrower.


SECTION 6.18.      BPGR.  The Borrower shall not permit BPGR to engage
in any activities other than those not materially different from those engaged
in on May 10, 2006 and acting as a holding company for shares of Manitowoc
Cranes, Inc. and other Subsidiaries of the Borrower and, in any event, shall
not permit BPGR to incur Indebtedness other than Indebtedness under the Credit
Documents and other Indebtedness subordinated on terms satisfactory to the Administrative
Agent to the obligations of BPGR under the Credit Documents.


ARTICLE
VII


Events
of Default


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


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


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


(c)           any representation
or warranty made or deemed made by or on behalf of the Borrower or any
Subsidiary in or in connection with any Credit Document or any 



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amendment or
modification thereof or waiver thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection
with any Credit Document or any amendment or modification thereof or waiver
thereunder, shall prove to have been incorrect in any material respect when
made or deemed made;


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


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


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


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


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


(i)            the Borrower or any
Material Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest in
a timely and appropriate manner, any proceeding or petition described in clause
(h) of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
the Borrower or any Material Subsidiary or for a substantial part of its assets,
(iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the 



 80
 









benefit of
creditors or (vi) take any action for the purpose of effecting any of the
foregoing;


(j)            the Borrower or any
Material Subsidiary shall become unable, admit in writing its inability or fail
generally to pay its debts as they become due;


(k)           one or more
judgments for the payment of money in an aggregate amount in excess of
$10,000,000 shall be rendered against the Borrower, any Material Subsidiary or
any combination thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed, or
any action shall be legally taken by a judgment creditor to attach or levy upon
any assets of the Borrower or any Material Subsidiary to enforce any such
judgment;


(l)            an ERISA Event
shall have occurred that, in the opinion of the Required Lenders, when taken
together with all other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in an
aggregate amount exceeding $10,000,000;


(m)          a Change in Control
shall occur;


(n)           any Security
Document shall cease to be in full force and effect, or shall cease to give the
Collateral Agent for the benefit of the Secured Creditors the Liens, rights,
powers and privileges purported to be created thereby, or any Credit Party
shall default in the due performance or observance of any term, covenant or agreement
on its part to be performed or observed pursuant to any such Security Document
and such default shall continue beyond the period of grace, if any,
specifically applicable thereto pursuant to the terms of such Security
Document; or


(o)           except as otherwise
provided in Section 6.03(a)(x) or (xi), the Subsidiary Guaranty or any
provision thereof shall cease to be in full force or effect as to any
Subsidiary Guarantor, or any Subsidiary Guarantor or any Person acting for or
on behalf of such Subsidiary Guarantor shall deny or disaffirm such Subsidiary
Guarantor’s obligations under the Subsidiary Guaranty or any Subsidiary
Guarantor shall default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed pursuant to the
Subsidiary Guaranty; or


(p)           the Parent Guaranty
or any provision thereof shall cease to be in full force or effect or the
Borrower or any Person acting for or on behalf of the Borrower shall deny or
disaffirm the Borrower’s obligations under the Parent Guaranty or the Borrower
shall default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to the Parent
Guaranty;


then, and in every such event (other than an event
with respect to any of the Borrowers described in clause (h) or (i) of this
Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by
notice to the Borrower, take either or both of the following actions, at the
same or different times:  (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case



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any principal not so declared to be due and payable
may thereafter be declared to be due and payable), and thereupon the principal
of the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrowers accrued hereunder,
shall become  due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrowers; and in case of any event with
respect to any of the Borrowers described in clause (h) or (i) of this Article,
the Commitments shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrowers.


ARTICLE
VIII


The
Administrative Agent


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


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


The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein.  Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary
or other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent
is required to exercise in writing as directed by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Subsidiaries that is communicated to or obtained by
the bank serving as Administrative Agent or any of its Affiliates in any
capacity.  The Administrative Agent shall
not be liable for any action taken or not taken by it with the consent or at
the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the



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covenants, agreements or
other terms or conditions set forth herein, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.


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


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


Subject to the appointment and acceptance of a
successor Administrative Agent as provided in this paragraph, the
Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrower.  Upon any
such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor. 
If no successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank,
appoint a successor Administrative Agent which shall be a bank with an office
in New York, New York, or an Affiliate of any such bank.  Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder.  The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.  After the Administrative Agent’s resignation
hereunder, the provisions of this Article and Section 9.03 shall continue in
effect for the benefit of such retiring Administrative Agent, its sub agents
and their respective Related Parties in respect of any actions taken or omitted
to be taken by any of them while it was acting as Administrative Agent.


Each Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Lender and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this 



 83
 









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


The Administrative Agent shall be permitted from time
to time to designate one of its Affiliates to perform the duties to be
performed by the Administrative Agent hereunder with respect to Loans and
Borrowings denominated in Foreign Currencies. 
The provisions of this Article VIII shall apply to any such Affiliate mutatis mutandis.  All provisions of this Article VIII relating
to the Administrative Agent shall be equally applicable to the Collateral Agent
mutatis mutandis.


Without limiting the foregoing, if any Collateral or
any Subsidiary is sold in a transaction permitted hereunder (excluding sales to
the Borrower or a Subsidiary thereof other than sales comprising part of a
Permitted Securitization made to a Subsidiary which is an SPC), (a) such
Collateral and the assets of such Subsidiary shall be sold free and clear of
the Liens created by the Security Documents and (b) in the case of such a sale
of a Subsidiary Guarantor, such Subsidiary Guarantor and its subsidiaries shall
be released from the Subsidiary Guaranty and, in each case, the Administrative
Agent and the Collateral Agent shall be authorized to take any actions deemed
appropriate in order to effect the foregoing. 
Each of the Administrative Agent and the Collateral Agent shall also be
authorized, on behalf of the Lenders, to enter into such amendments of the
Security Documents and to enter into such agreements (including intercreditor
agreements but excluding any releases of Collateral not otherwise authorized
hereby) as, in either case, it deems necessary or appropriate in connection
with a Permitted Securitization. 
Additionally, in connection with the granting of Liens of the type
described in clauses (i), (j), (m) or (s) of Section 6.02 by the Borrower or
any of its Subsidiaries, each of the Administrative Agent and the Collateral
Agent is authorized to take any actions deemed appropriate by it in connection
therewith (including, without limitation, the execution of appropriate lien
releases or lien subordination agreements in favor of the holder or holders of
such Liens, in either case solely with respect to the item or items of
equipment or other assets subject to such Liens.


ARTICLE
IX


Miscellaneous


SECTION 9.01.      Notices.


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


(i)            if to the Borrower
or any Subsidiary Borrower, to it at The Manitowoc Company, Inc., 2400 South
44th Street, Manitowoc, Wisconsin 54221, Attention of Carl Laurino, Chief
Financial Officer (Telecopy No. (920) 652-9775);


 



 84















(ii)           if to the Administrative Agent, to
JPMorgan Chase Bank, N.A., Loan Operations, 131 S. Dearborn St., Chicago,
Illinois, 60670, Attention of Yvonne E. Dixon (Telecopy No. (312) 385-7101;
e-mail: yvonne_e_dixon@bankone.com) and, in the case of any Loan denominated in
a Foreign Currency, to the J. P. Morgan Europe Limited, 125 London Wall,
London, EC2Y 5AJ, Attn:  Loans Agency
(Telecopy No.  44 207 777 2360/2085);


(iii)          if to the Issuing Bank, to it at
JPMorgan Chase Bank, N.A., Letter of Credit Group, 131 S. Dearborn St., Mail
Code:  IL1-0236, Chicago, Illinois,
60670, Attention of Evelyn D. Abbasi (Telecopy No. (312) 954-5986);


(iv)          if to the Swingline Lender, c/o the
Administrative Agent at the address set forth in clause (ii) above; and


(v)           if to the Alternate Currency Fronting
Lender, c/o the Administrative Agent at the address set forth in clause (ii)
above; and


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


(b)           Notices and other communications
to the Lenders hereunder may be delivered or furnished by electronic
communications pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender.  The Administrative Agent or the Borrower may,
in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or
communications.


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


SECTION 9.02.      Waivers;
Amendments.


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



 85
 









be construed
as a waiver of any Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at
the time.


(b)           Neither this
Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower
and the Required Lenders or by the Borrower and the Administrative Agent with
the consent of the Required Lenders; provided that no such agreement
shall (i) increase  the Commitment of any
Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon,
or reduce any fees payable hereunder, without the written consent of each
Lender affected thereby, (iii) postpone the scheduled date of payment of the
principal amount of any Loan or LC Disbursement, or any interest thereon, or
any fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, postpone the scheduled date of expiration of any Commitment or extend
the stated expiration date of any Letter of Credit beyond the Maturity Date,
without the written consent of each Lender affected thereby, (iv) change
Section 2.18(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender, or (vi) release all or substantially all of the Collateral or
release any Subsidiary Guarantor from its obligations under the Subsidiary
Guaranty, except in connection with the sale of a Subsidiary Guarantor
permitted under this Agreement, without the written consent of each Lender;
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent, the Issuing Bank, the
Alternate Currency Fronting Lender or the Swingline Lender hereunder without
the prior written consent of the Administrative Agent, the Issuing Bank, the
Alternate Currency Fronting Lender or the Swingline Lender, as the case may
be.  Notwithstanding the foregoing, upon
the execution and delivery of all documentation required by Section 2.09(d) to
be delivered in connection with an increase to the total Commitments, the Administrative
Agent, the Borrower and the new or existing Lenders whose Commitments have been
affected may and shall enter into an amendment hereof (which shall be binding
on all parties hereto and the new Lenders) solely for the purpose of reflecting
any new Lenders and their new Commitments and any increase in the Commitment of
any existing Lender.


SECTION 9.03.      Expenses;
Indemnity; Damage Waiver.


(a)           The Borrower shall
pay (i) all reasonable out of pocket expenses incurred by the Administrative
Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of this Agreement or any amendments, modifications or waivers of
the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by the Administrative
Agent, the Issuing Bank or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent, the Issuing Bank or
any Lender, in connection with the enforcement or protection of its rights in



 86
 









connection
with this Agreement, including its rights under this Section, or in connection
with the Loans made or Letters of Credit issued hereunder, including all such
out-of pocket expenses incurred during 
any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.


(b)           The Borrower shall
indemnify the Administrative Agent, the Issuing Bank and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee, incurred by
or asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or Letter of Credit or
the use of the proceeds therefrom (including any refusal by the Issuing Bank to
honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee.


(c)           To the extent that
the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, the Issuing Bank, the Alternate Currency Fronting Lender
or the Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, the Issuing Bank, the
Alternate Currency Fronting Lender or the Swingline Lender, as the case may be,
such Lender’s Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent, the Issuing Bank, the
Alternate Currency Fronting Lender or the Swingline Lender in its capacity as
such.


(d)           To the extent
permitted by applicable law, the Borrowers shall not assert, and hereby waive,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any agreement or instrument contemplated hereby, the Transactions, any Loan
or Letter of Credit or the use of the proceeds thereof.


(e)           All amounts due
under this Section shall be payable not later than ten Business Days after
written demand therefor.



 87
 









SECTION 9.04.      Successors
and Assigns.


(a)           The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby (including
J. P. Morgan Europe Limited and any Affiliate of the Issuing Bank that issues
any Letter of Credit), except that (i) the Borrowers may not assign or
otherwise transfer any of their respective rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrowers without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations
hereunder except in accordance with this Section.  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including J.
P. Morgan Europe Limited and any Affiliate of the Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of
this Section) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.


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


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


(B)           the Administrative Agent and the Alternate
Currency Fronting Lender, provided that no consent of the Administrative
Agent and the Alternate Currency Fronting Lender shall be required for an
assignment of any Commitment to an assignee that is a Lender with a Commitment
immediately prior to giving effect to such assignment; and


(C)           the Issuing Bank.


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


(A)          except in the case of an assignment to
a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount
of the assigning Lender’s Commitment or Loans of any Class, the amount of the
Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 unless each of the Borrower and the Administrative Agent otherwise
consent, provided that no such consent of the Borrower shall be required
if an Event of Default has occurred and is continuing;


(B)           each partial assignment shall be made
as an assignment of a proportionate part of all the assigning Lender’s rights
and obligations under this Agreement, provided that this clause shall
not be construed to prohibit the assignment of



 88
 









a proportionate part of all the assigning
Lender’s rights and obligations in respect of one Class of Commitments or Loans
and provided further that assignments of Alternate Currency Loans to the
Alternate Currency Fronting Lender as described in clause (ii) of Section
2.04(m) or by the Alternate Currency Fronting Lender to a Lender which becomes
an Alternate Currency Lender shall not be required to be made as a
proportionate part of the assigning Lender’s Commitment;


(C)           the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500, except that no fee
shall be required in the event of an assignment by a Lender to an Affiliate of
such Lender; and


(D)          the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire in which the assignee designates one or more credit contacts to
whom all syndicate-level information (which may contain material non-public
information about the Borrower and its affiliates, the Credit Parties and their
related parties or their respective securities) will be made available and who
may receive such information in accordance with the assignee’s compliance
procedures and applicable laws, including Federal and state securities laws.


For the purposes of this Section 9.04(b), the term “Approved
Fund” has the following meaning:


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


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


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



 89
 









Disbursements owing to, each Lender pursuant
to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent, the Issuing Bank and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.


(v)           Upon its receipt of a duly completed
Assignment and Assumption executed by an assigning Lender and an assignee, the
assignee’s completed Administrative Questionnaire (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Assumption and record the information contained
therein in the Register; provided that if either the assigning Lender or
the assignee shall have failed to make any payment required to be made by it
pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), the
Administrative Agent shall have no obligation to accept such Assignment and
Assumption and record the information therein in the Register unless and until
such payment shall have been made in full, together with all accrued interest
thereon.  No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.


(c)           (i) Any Lender may,
without the consent of the Borrowers, the Administrative Agent, the Issuing
Bank, the Alternate Currency Fronting Lender or the Swingline Lender, sell
participations to one or more banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to
it); provided that (A) such Lender’s obligations under this Agreement
shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (C) the
Borrowers, the Administrative Agent, the Issuing Bank and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such
Participant.  Subject to paragraph
(c)(ii) of this Section, the Borrowers agree that each Participant shall be
entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section.  To the
extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.18(c) as though it were a Lender.


(ii)           A Participant shall not be entitled
to receive any greater payment under Section 2.15 or 2.17 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to



 90
 









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


(d)           Any Lender may at
any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such Lender, including
without limitation any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.


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


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


SECTION 9.07.      Severability.  Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality



 91
 









and
enforceability of the remaining provisions hereof; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.


SECTION 9.08.      Right of
Set-off.  If an Event of Default
shall have occurred and be continuing, each Lender and each of its Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
obligations at any time owing by such Lender or Affiliate to or for the credit
or the account of any of the Borrowers against any of and all the obligations
of such Person now or hereafter existing under this Agreement held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement and although such obligations may be unmatured.  The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of
set-off) which such Lender may have.


SECTION 9.09.      Governing
Law; Jurisdiction; Consent to Service of Process.


(a)           This Agreement shall
be construed in accordance with and governed by the law (without regard to
conflict of law provisions) of the State of New York.


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


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


(d)           Each party to this
Agreement irrevocably consents to service of process in the manner provided for
notices in Section 9.01; provided that service of process may not be
made by telecopy.  Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.


SECTION 9.10.      WAIVER OF
JURY TRIAL.  EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,



 92
 









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


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


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


EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED
ABOVE IN SECTION 9.12., FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE
MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES
OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS



 93
 









THAT IT HAS DEVELOPED
COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND
THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH
THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES
LAWS.


ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND
AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO,
OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL
INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE
BORROWER AND ITS AFFILIATES, THE PARTIES AND THEIR RELATED PARTIES OR THEIR
RESPECTIVE SECURITIES) AND ITS SECURITIES. 
ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE
ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE
A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND
APPLICABLE LAW.


SECTION 9.13.      Interest
Rate Limitation.  Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated
as interest on such Loan under applicable law (collectively the “Charges”),
shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest
and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.


SECTION 9.14.      USA PATRIOT
Act.  Each Lender that is subject to
the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the “Act”) hereby notifies the Borrowers that
pursuant to the requirements of the Act, it is required to obtain, verify and
record information that identifies such Person, which information includes the
names and addresses of the Borrowers and other information that will allow such
Lender to identify the Borrowers in accordance with the Act.


SECTION 9.15.      Conversion
of Currencies.


(a)           If, for the purpose
of obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.



 94















(b)           The obligations of
each Borrower in respect of any sum due to any party hereto or any holder of
the obligations owing hereunder (the “Applicable Creditor”) shall,
notwithstanding any judgment in a currency (the “Judgment Currency”)
other than the currency in which such sum is stated to be due hereunder (the “Agreement
Currency”), be discharged only to the extent that, on the Business Day
following receipt by the Applicable Creditor of any sum adjudged to be so due
in the Judgment Currency, the Applicable Creditor may in accordance with normal
banking procedures in the relevant jurisdiction purchase the Agreement Currency
with the Judgment Currency; if the amount of the Agreement Currency so
purchased is less than the sum originally due to the Applicable Creditor in the
Agreement Currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Applicable Creditor against
such loss. The obligations of the Borrower contained in this Section 9.15 shall
survive the termination of this Agreement and the payment of all other amounts
owing hereunder.


SECTION 9.16.      Syndication
Agent and Documentation Agents. 
Neither the Syndication Agent nor the Documentation Agents shall, in
their capacities as such, have any duties or responsibilities under this
Agreement or any other Credit Document. 
Neither the Syndication Agent nor the Documentation Agents shall have or
be deemed to have any fiduciary relationship with any Lender.  Each Lender acknowledges that it has not
relied, and will not rely, on the Syndication Agent or any Documentation Agent
in deciding to enter into this Agreement or any other Credit Document or in
taking or not taking any action hereunder.


SECTION 9.17.      Amendment
and Restatement.


(a)           Subject to Section 9.17(b),
on the Effective Date the Existing Credit Agreement shall be amended, restated
and superseded in its entirety hereby. 
The parties hereto acknowledge and agree that (a) this Agreement, any
Notes delivered pursuant to Section 2.10 and the other Credit Documents
executed and delivered in connection herewith do not constitute a novation,
payment and reborrowing, or termination of the “Obligations” (as defined in the
Existing Credit Agreement) under the Existing Credit Agreement as in effect
prior to the Effective Date and (b) such “Obligations” are in all respects
continuing with only the terms thereof being modified as provided in this
Agreement.


(b)           Notwithstanding
anything herein to the contrary, in the event that this Agreement is executed
by the Required Lenders but not by all the Lenders, then this Agreement shall
not restate and supersede the Existing Credit Agreement in its entirety but
shall instead be deemed an amendment of the Existing Credit Agreement effecting
the modifications reflected herein to Articles I through III thereof, Section
4.02 thereof, Articles and V through IX thereof and the Schedules thereto.


(c)           Notwithstanding the
modifications effected by this Agreement of the representations, warranties and
covenants of the Borrower contained in the Existing Credit Agreement, the
Borrower acknowledges and agrees that any causes of action or other rights
created in favor of any Lender and its successors arising out of the
representations and warranties of the Borrower contained in or delivered
(including representations and warranties delivered in connection with the
making of the loans or other extensions of credit thereunder) in connection
with the Existing Credit Agreement shall survive the execution and delivery of
this Agreement; 



 95
 









provided,
however, that it is understood and agreed that the Borrower’s monetary
obligations under the Existing Credit Agreement in respect of the loans and
letters of credit thereunder are continued and evidenced by this Agreement and
that all indemnification obligations of the Borrower pursuant to the Existing
Credit Agreement are continued hereunder.



 96















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


	
  

  	
  THE MANITOWOC
  COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[Signature
Page to Credit Agreement]













 


 


	
  

  	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE
  BANK, N.A., individually and as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[Signature
Page to Credit Agreement]













 


 


	
  

  	
   

  	
   

  
	
   

  	
  [OTHER BANKS]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[Signature Page to Credit
Agreement]


















Schedule
1.01


PRICING
SCHEDULE


	
  Applicable Rate

  	
   

  	
  Level I 

  Status

  	
   

  	
  Level II

   Status

  	
   

  	
  Level III

   Status

  	
   

  	
  Level IV

   Status

  	
   

  	
  Level V

   Status

  	
   

  
	
  Eurocurrency Spread

  	
   

  	
  0.75

  	
  %

  	
  1.00

  	
  %

  	
  1.25

  	
  %

  	
  1.50

  	
  %

  	
  1.75

  	
  %

  
	
  ABR Spread

  	
   

  	
  0

  	
  %

  	
  0

  	
  %

  	
  0

  	
  %

  	
  0.25

  	
  %

  	
  0.50

  	
  %

  
	
  Commitment Fee Rate

  	
   

  	
  0.15

  	
  %

  	
  0.20

  	
  %

  	
  0.25

  	
  %

  	
  0.30

  	
  %

  	
  0.375

  	
  %

  



 


For the purposes of this Schedule, the following terms
have the following meanings, subject to the final paragraph of this Schedule:


“Financials” means the annual or
quarterly financial statements of the Borrower delivered pursuant to Section
5.01 of this Agreement.


“Level I Status” exists at any
date if, as of the last day of the fiscal quarter of the Borrower referred to
in the most recent Financials, the Consolidated Total Leverage Ratio is less
than 2.0 to 1.00.


“Level II Status” exists at any
date if, as of the last day of the fiscal quarter of the Borrower referred to
in the most recent Financials, (i) the Borrower has not qualified for Level I
Status and (ii) the Consolidated Total Leverage Ratio is less than 2.50 to
1.00.


“Level III Status” exists at any
date if, as of the last day of the fiscal quarter of the Borrower referred to
in the most recent Financials, (i) the Borrower has not qualified for Level I
Status or Level II Status and (ii) the Consolidated Total Leverage Ratio is
less than 3.0 to 1.00.


“Level IV Status” exists at any
date if, as of the last day of the fiscal quarter of the Borrower referred to
in the most recent Financials, (i) the Borrower has not qualified for Level I
Status, Level II Status or Level III Status and (ii) the Consolidated Total
Leverage Ratio is less than 3.50 to 1.00.


“Level V Status” exists at any
date if the Borrower has not qualified for Level I Status, Level II Status,
Level III Status or Level IV Status.


“Status” means Level I Status,
Level II Status, Level III Status, Level IV Status, or Level V Status.


The Applicable Rate shall be
determined in accordance with the foregoing table based on the Borrower’s
Status as reflected in the then most recent Financials.  Adjustments, if any, to the Applicable Rate
shall be effective five Business Days after the Administrative Agent













has
received the applicable Financials. If the Borrower fails to deliver the
Financials to the Administrative Agent at the time required pursuant to the
Credit Agreement, then the Applicable Rate shall be the highest Applicable Rate
set forth in the foregoing table until five days after such Financials are so
delivered. Until adjusted after the Effective Date, Level I Status shall be
deemed to exist.


[Signature Page to Credit
Agreement]

















Schedule
1.02


EXISTING
INTERCOMPANY NOTES


See Attached.
















Schedule
2.01


COMMITMENTS


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  
	
  JPMorgan Chase Bank,
  N.A.

  	
   

  	
  $

  	
  32,500,000

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  28,500,000

  	
   

  
	
  Deutsche Bank AG New
  York Branch

  	
   

  	
  $

  	
  28,500,000

  	
   

  
	
  BNP Paribas

  	
   

  	
  $

  	
  28,500,000

  	
   

  
	
  U.S. Bank, National
  Association

  	
   

  	
  $

  	
  28,500,000

  	
   

  
	
  Associated Bank, N.A.

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  Natexis Banques
  Populaires

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  LaSalle Bank National
  Association

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  M&I Marshall &
  Ilsley Bank

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  The Bank of New York

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  UBS Loan Finance LLC

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  The Northern Trust
  Company

  	
   

  	
  $

  	
  13,500,000

  	
   

  
	
  Lehman Commercial Paper
  Inc.

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  Total

  	
   

  	
  $

  	
  300,000,000

  	
   

  



 


















Schedule
2.21


MANDATORY
COST RATE


1.            Definitions.


In this Schedule
2.21:


“Act” means the
Bank of England Act of 1998.


The
terms “Eligible Liabilities” and “Special Deposits” have the meanings ascribed
to the them under or pursuant to the Act or by the Bank of England (as may be
appropriate), on the day of the application of the formula set forth in this
Schedule 2.21.


“Fee
Base” has the meaning ascribed to it for the purposes of, and shall be
calculated in accordance with, the Fees Regulations.


“Fees
Regulations” means, as appropriate, either: (i) the Banking Supervision (Fees)
Regulations 1998, or (ii) such regulations as from time to time may be in
force, relating to the payment of fees for banking supervision in the United
Kingdom.


“FSA”
means the Financial Services Authority.


2.            Calculation of the Mandatory Cost Rate.


The
Mandatory Cost Rate is an incremental per annum addition to the interest rate
charged with respect to each Eurocurrency Loan to compensate the Lenders for
the cost attributable to such Eurocurrency Loan resulting from the imposition
from time to time under or pursuant to the Act and/or by the Bank of England
and/or the FSA (or other United Kingdom governmental authorities or agencies)
of a requirement to place non-interest bearing or Special Deposits (whether
interest bearing or not) with the Bank of England and/or pay fees to the FSA
calculated by reference to the liabilities used to fund the relevant
Eurocurrency Loan.


The “Mandatory
Cost Rate” is the rate determined by the Administrative Agent to be equal to
the rate (rounded upward, if necessary, to the next higher 1/100 of 1%)
resulting from the application of the following formula:


For Sterling:


AB +C(B-D) + E x
0.01


100 -
(A+C)













 


For other Foreign
Currencies:


E x 0.01


    300


where on the day
of application of the formula,


A                                      is
the percentage of Eligible Liabilities (in excess of any stated minimum) which
the Administrative Agent is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England.


B                                        is
the Adjusted LIBO Rate applicable to the related Eurocurrency Loan.


C                                        is
the level of interest-bearing Special Deposits, expressed as a percentage of
Eligible Liabilities, which the Administrative Agent is required from time to
time to maintain by the Bank of England (or other United Kingdom governmental
authority or agency).


D                                       is
the percentage rate per annum payable by the Bank of England to the
Administrative Agent on Special Deposits.


E                                         is
the rate payable by the Administrative Agent to the FSA pursuant to the Fees
Regulations and expressed in pounds per 1,000,000 Sterling of the Fee Base of
the Administrative Agent.


(A, B, C and D are
to be expressed in the formula as numbers and not as percentages.  A negative result obtained from subtracting D
from B shall be counted as zero.)


The Mandatory Cost
Rate attributable to a Eurocurrency Loan for any period shall be calculated at
or about 11:00 a.m. (London time) on the first day of such period for the
duration of such period.


The determination
of the Mandatory Cost Rate by the Administrative Agent in relation to any
period shall, in the absence of manifest error, be conclusive and binding on
all parties hereto.



 2















EXHIBIT
A


FORM
OF ASSIGNMENT AND ASSUMPTION


This Assignment and Assumption (the “Assignment and
Assumption”) is dated as of the Effective Date set forth below and is
entered into by and between [Insert name of
Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified
below  (as amended, the “Credit
Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.


For an agreed consideration, the Assignor hereby
irrevocably sells and assigns to the Assignee, and the Assignee hereby
irrevocably purchases and assumes from the Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as
of the Effective Date inserted by the Administrative Agent as contemplated
below (i) all of the Assignor’s rights and obligations in its capacity as a
Lender under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of
the Assignor under the respective facilities identified below (including any
letters of credit, guarantees, and swingline loans included in such facilities)
and (ii) to the extent permitted to be assigned under applicable law, all
claims, suits, causes of action and any other right of the Assignor (in its
capacity as a Lender) against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed
thereby or in any way based on or related to any of the foregoing, including
contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as the “Assigned Interest”).  Such sale and assignment is without recourse
to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.


	
  1.

  	
  Assignor:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Assignee:

  	
   

  	
   

  
	
   

  	
   

  	
  [and is an
  Affiliate/Approved Fund of [identify Lender](2)]

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Borrower:

  	
  The Manitowoc
  Company, Inc.

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Administrative
  Agent: 

  	
  JPMorgan Chase
  Bank, N.A., as the administrative agent under the Credit Agreement

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Credit Agreement:

  	
  The $300,000,000
  Amended and Restated Credit Agreement dated as of December    
  , 2006 among The Manitowoc Company, Inc., the Lenders parties

  







(2)    Select as applicable



















 


	
   

  	
   

  	
  thereto,
  JPMorgan Chase Bank, N.A., as Administrative Agent, and the other agents
  parties thereto]

  



 


	
  6.

  	
  Assigned
  Interest:  

  	
  The Manitowoc
  Company, Inc.

  



 




	
  Aggregate Amount of 

  Commitment/Loans for all 

  Lenders

  	
   

  	
  Amount of 

  Commitment/Loans

  Assigned

  	
   

  	
  Percentage of 

  Commitment/Loans

  Assigned(3)

  	
   

  
	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  
	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  
	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  






 


Effective Date:                   
, 20      [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]


The terms set forth in this Assignment and Assumption
are hereby agreed to:


	
   

  	
  ASSIGNOR

  
	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
  
   

  

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By:

  	
  
   

  

  
	
   

  	
  Title:

  
	
  [Consented to and](4) Accepted:

  	
   

  
	
   

  	
   

  
	
  JPMORGAN CHASE BANK, N.A., as

  	
   

  
	
  Administrative Agent

  	
   

  
	
   

  	
   

  







(3)    Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.


(4)    To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.



 2
 









 


	
  By

  	
  
   

  

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  [Consented to:](5)

  	
   

  
	
   

  	
   

  
	
  [NAME OF RELEVANT PARTY]

  	
   

  
	
   

  	
   

  
	
  By

  	
  
   

  

  	
   

  
	
  Title:

  	
   

  







(5)    To be added only if the
consent of the Borrower and/or other parties (e.g., Swingline Lender, Issuing
Bank) is required by the terms of the Credit Agreement.



 3















ANNEX 1


STANDARD TERMS AND
CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION


1.             Representations
and Warranties.


1.1           Assignor.  The Assignor (a) represents and warrants that
(i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Credit Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any
Credit Document or (iv) the performance or observance by the Borrower, any of
its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Credit Document.


1.2.          Assignee.  The Assignee (a) represents and warrants that
(i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it satisfies the requirements, if any, specified in the Credit
Agreement that are required to be satisfied by it in order to acquire the
Assigned Interest and become a Lender, (iii) from and after the Effective Date,
it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.01 thereof, as applicable, 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 Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on the Administrative Agent or
any other Lender, and (v) if it is a Foreign Lender, attached to the Assignment
and Assumption is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement, duly completed and executed by the Assignee;
and (b) agrees that (i) it will, independently and without reliance on the
Administrative 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
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Documents are required to be
performed by it as a Lender.


2.             Payments.  From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignor for amounts which have accrued to but excluding the Effective Date
and to the Assignee for amounts which have accrued from and after the Effective
Date.













3.             General
Provisions.  This Assignment and
Assumption shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns.  This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument.  Delivery of an executed
counterpart of a signature page of this Assignment and Assumption by telecopy
shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption.  This
Assignment and Assumption shall be governed by, and construed in accordance
with, the laws (without regard to conflict of law provisions) of the State of
New York.



 2















EXHIBIT
B


FORM
OF DESIGNATION LETTER


                 ,
        


JPMorgan Chase Bank,
N.A., as Administrative Agent for the Lenders


to the Credit Agreement
referred to below,


and the Lenders


[                         ]


[                                            ]


Attention:  [                         ]


Ladies and Gentlemen:


We refer to the
Amended and Restated Credit Agreement (as amended, restated, supplemented or
otherwise modified and in effect from time to time, the “Credit Agreement”)
dated as of December     , 2006 among The Manitowoc
Company, Inc. (the “Borrower”), the Lenders party thereto and JPMorgan Chase
Bank, N.A., as Administrative Agent. 
Unless otherwise defined herein, capitalized terms used in this
Designation Letter have the meanings ascribed thereto in the Credit Agreement.


The Borrower
hereby designates [              ]
(the “Designated Subsidiary”), a Wholly-Owned Subsidiary of the Company and a
[corporation duly incorporated under the laws of [          ]],
as a “Subsidiary Borrower” in accordance with Section 2.20 of the Credit
Agreement until such designation is terminated in accordance with Section 2.20
of the Credit Agreement and sets forth on Schedule 1 hereto the contact
information about such Designated Subsidiary specified on such schedule.


The Designated
Subsidiary hereby accepts the above designation and hereby expressly and
unconditionally accepts the obligations of a Subsidiary Borrower under the
Credit Agreement and agrees and confirms that, upon your execution and return to
the Borrower of the enclosed copy of this letter, the Designated Subsidiary
shall be a Subsidiary Borrower for purposes of the Credit Agreement and agrees
to be bound by and perform and comply with the terms and provisions of the
Credit Agreement applicable to it as if it had originally executed the Credit
Agreement as a Subsidiary Borrower.  The
Designated Subsidiary hereby authorizes and empowers the Borrower to act as its
representative and attorney-in-fact for the purposes of signing documents and
giving and receiving notices (including borrowing requests and interest
elections under the Credit Agreement) and other communications in connection
with the Credit Agreement and the transactions contemplated thereby and for the
purposes of modifying or amending any provision of the Credit Agreement and
further agrees that the Administrative Agent and each Lender may conclusively
rely on the foregoing authorization.


The Borrower
hereby represents and warrants to the Administrative Agent and each Lender
that, before and after giving effect to this Designation Letter, (i) the
representations and warranties set forth in Article III of the Credit Agreement
are true and correct on the date hereof as if made on













and as of the date
hereof, and (ii) no Default has occurred and is continuing.  The Designated Subsidiary represents and
warrants that, in so far as they relate to such Designated Subsidiary, each of
the representations and warranties set forth in Article III of the  Credit Agreement is true and correct on the
date hereof as if made on and as of the date hereof.  This Designation Letter shall be governed by,
and construed in accordance with, the internal laws (without regard to the
conflict of laws provisions) of the State of New York.  Without limiting any other provisions hereof,
the Designated Subsidiary hereby submits to jurisdiction and makes the waivers
and otherwise in all aspects agrees to the terms of Sections 9.09(b), (c) and
(d) of the Credit Agreement as if fully set forth herein.


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


	
  

  	
  Very truly
  yours,

  
	
   

  	
   

  	
   

  
	
  

  	
  THE MANITOWOC
  COMPANY, INC.

  
	
   

  	
   

  	
   

  
	
  

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [NAME OF
  DESIGNATED SUBSIDIARY]

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  




 2
 









 


 


Schedule 1


	
  1.

  	
  Registered address:

  
	
   

  	
   

  
	
  2.

  	
  Contact Person:

  
	
   

  	
  Telephone number

  
	
   

  	
  Facsimile number

  
	
   

  	
  Email address of
  contact person

  
	
   

  	
   

  
	
  3.

  	
  Internet address, if any

  
	
   

  	
   

  
	
  4.

  	
  Federal employer identification number, if any

  



 



 3















EXHIBIT
C


FORM
OF INTERCOMPANY NOTE


[Date]


FOR VALUE RECEIVED, [NAME OF PAYOR] (the “Payor”)
hereby promises to pay on demand to the order of                            
or its assigns (the “Payee”), in lawful money of the United States of America
in immediately available funds, at such location in the United States of
America as the Payee shall from time to time designate, the unpaid principal
amount of all loans and advances made by the Payee to the Payor.


The Payor promises also to pay interest on the unpaid
principal amount hereof in like money at said office from the date hereof until
paid at such rate per annum as shall be agreed upon from time to time by the
Payor and Payee.


Upon the commencement of any bankruptcy,
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar proceeding of any
jurisdiction relating to the Payor, the unpaid principal amount hereof shall
become immediately due and payable without presentment, demand, protest or notice
of any kind in connection with this Note.


This Note evidences certain permitted intercompany
indebtedness referred to in the Amended and Restated Credit Agreement, dated as
of December      , 2006 (as amended, modified,
restated and/or supplemented from time to time, the “Credit Agreement”), among
The Manitowoc Company, Inc., the lenders from time to time party thereto, and
JPMorgan Chase Bank, N.A., as Administrative Agent, and is subject to the terms
thereof[, and shall be pledged by the Payee pursuant to the Pledge Agreement
(as defined in the Credit Agreement). 
The Payor hereby acknowledges and agrees that the Pledgee pursuant to
and as defined in the Pledge Agreement, as in effect from time to time, may
exercise all rights provided therein with respect to this Note].


[This Note, and all of the Payor’s obligations
hereunder, shall be subordinate and junior to all Senior Indebtedness (as
defined in Section 1.07 of Annex A hereto) on the terms and conditions set
forth in Annex A hereto, which Annex A is incorporated herein by reference and
made a part hereof as if set forth herein in its entirety.](6)






(6)                                  Insert
in all Intercompany Notes in which the Payor is either the Borrower or a
Subsidiary Guarantor and the Payee is neither the Borrower nor a Subsidiary
Guarantor.


The Payee is hereby authorized to record all loans and
advances made by it to the Payor (all of which shall be evidenced by this
Note), and all repayments or prepayments thereof, in its books and records,
such books and records constituting prima facie evidence of the accuracy of the
information contained therein.













All payments under this Note shall be made without
offset, counterclaim or deduction of any kind.


THIS NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.


	
  

  	
   

  	
  [NAME OF PAYOR]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
  Pay to the order
  of

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  [NAME OF PAYEE]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
					



 


















Annex A


SUBORDINATION PROVISIONS


Section 1.01.  Subordination of Liabilities.  [Name of Payor] (the “Company”), for itself,
and its successors and assigns, covenants and agrees, and each holder of the
Note to which this Annex A is attached (the ‘‘Note’’) by its acceptance thereof
likewise covenants and agrees, that the payment of the principal of, interest
on, and all other amounts owing in respect of, the Note (the “Subordinated
Indebtedness”) is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, to the prior payment in full in cash of all Senior
Indebtedness (as defined in Section 1.07 of this Annex A).  The provisions of this Annex A shall
constitute a continuing offer to all persons or other entities who, in reliance
upon such provisions, become holders of, or continue to hold, Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Senior Indebtedness, and such holders are hereby made obligees hereunder the
same as if their names were written herein as such, and they and/or each of
them may proceed to enforce such provisions.


Section 1.02.  Company Not to Make Payments with Respect
to Subordinated Indebtedness in Certain Circumstances.  (a) Upon the maturity of any Senior
Indebtedness (including interest thereon or fees or any other amounts owing in
respect thereof), whether at stated maturity, by acceleration or otherwise, all
Obligations (as defined in Section 1.07 of this Annex A) owing in respect
thereof shall first be paid in full in cash, before any payment or distribution
(whether in cash, property, securities or otherwise) is made on account of the
Subordinated Indebtedness.


(b)           The Company may not, directly or
indirectly, make any payment of any Subordinated Indebtedness and may not acquire
any Subordinated Indebtedness for cash or property until all Senior
Indebtedness has been paid in full in cash if any default or event of default
under the Credit Agreement referred to below or any other issue of Senior
Indebtedness is then in existence or would result therefrom.  Each holder of the Note hereby agrees that,
so long as any such default or event of default exists, it will not ask,
demand, sue for, or otherwise take, accept or receive, any amounts owing in
respect of the Subordinated Indebtedness.


(c)           In the event that, notwithstanding
the provisions of the preceding subsections (a) and (b) of this Section 1.02,
the Company shall make any payment on account of the Subordinated Indebtedness
at a time when payment is not permitted by said subsection (a) or (b), such
payment shall be held by the holder of the Note, in trust for the benefit of,
and shall be paid forthwith over and delivered to, the holders of Senior
Indebtedness or their representative or the trustee under the indenture or other
agreement pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, for application
pro rata to the payment of all Senior Indebtedness (after giving effect to the
relative priorities of such Senior Indebtedness) remaining unpaid to the extent
necessary to pay all Senior Indebtedness in full in cash in accordance with the
terms of such Senior Indebtedness, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness.  Without in any way modifying the provisions
of this Annex A or affecting the subordination effected hereby if the hereafter
referenced notice is not given, the Company shall give the holder of the Note
prompt written notice of any event which would prevent payments under Section
1.02(a) or (b) hereof.













 


Section 1.03.  Subordination to Prior Payment of All
Senior Indebtedness on Dissolution, Liquidation or Reorganization of Company.  Upon any distribution of assets of the Company
upon dissolution, winding up, liquidation or reorganization of the Company
(whether in bankruptcy, insolvency or receivership proceedings or upon an
assignment for the benefit of creditors or otherwise):


(a) the holders of
all Senior Indebtedness shall first be entitled to receive payment in full in
cash of all Senior Indebtedness (including, without limitation, post-petition
interest at the rate provided in the documentation with respect to the Senior
Indebtedness, whether or not such post-petition interest is an allowed claim
against the debtor in any bankruptcy or similar pro­ceeding) before the holder
of the Note is entitled to receive any payment of any kind or character on
account of the Subordinated Indebtedness;


(b) any payment or
distributions of assets of the Company of any kind or character, whether in
cash, property or securities to which the holder of the Note would be entitled
except for the provisions of this Annex A, shall be paid by the liquidating
trustee or agent or other person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or other trustee or
agent, directly to the holders of Senior Indebtedness or their representative
or representatives, or to the trustee or trustees under any indenture under
which any instruments evidencing any such Senior Indebtedness may have been
issued, to the extent necessary to make payment in full in cash of all Senior
Indebtedness remaining unpaid (after giving effect to the relative priorities
of such Senior Indebtedness), after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness; and


(c) in the event
that, notwithstanding the foregoing provisions of this Section 1.03, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, shall be received by the holder of the
Note on account of Subordinated Indebtedness before all Senior Indebtedness is
paid in full in cash, such payment or distribution shall be received and held
in trust for and shall be paid over to the holders of the Senior Indebtedness
(after giving effect to the relative priorities of such Senior Indebtedness)
remaining unpaid or unprovided for or their representative or representatives,
or to the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, for
application to the payment of such Senior Indebtedness until all such Senior
Indebtedness shall have been paid in full in cash, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness.


Without in any way
modifying the provisions of this Annex A or affecting the subordination
effected hereby if the hereafter referenced notice is not given, the Company
shall give prompt written notice to the holder of the Note of any dissolution,
winding up, liquidation or reorganization of the Company (whether in
bankruptcy, insolvency or receivership proceedings or upon assignment for the
benefit of creditors or otherwise).


Section 1.04.  Subrogation.  Subject to the prior payment in full in cash
of all Senior Indebtedness, the holder of the Note shall be subrogated to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Senior Indebtedness
until all amounts owing an the Note shall be paid in full, and for the



 2
 









 


purpose of such
subrogation no payments or distributions to the holders of the Senior
Indebtedness by or on behalf of the Company or by or on behalf of the holder of
the Note by virtue of this Annex A which otherwise would have been made to the
holder of the Note shall, as between the Company, its creditors other than the
holders of Senior Indebtedness, and the holder of the Note, be deemed to be
payment by the Company to or on account of the Senior Indebtedness, it being
understood that the provisions of this Annex A are and are intended solely or
the purpose of defining the relative rights of the holder of the Note, on the
one hand, and the holders of the Senior Indebtedness, an the other hand.


Section 1.05.  Obligation of the Company Unconditional.  Nothing contained in this Annex A or in the
Note is intended to or shall impair, as between the Company and the holder of
the Note, the obligation of the Company, which is absolute and unconditional,
to pay to the holder of the Note the principal of and interest on the Note as
and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the holder of the Note
and other creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the holder of the
Note from exercising all remedies otherwise permitted by applicable law upon an
event of default under the Note, subject to all of the restrictions set forth
in this Annex A and the rights, if any, under this Annex A of the holders of
Senior Indebtedness in respect of cash, property, or securities of the Company
received upon the exercise of any such remedy.


Section 1.06.  Subordination Rights Not Impaired by Acts
or Omissions of Company or Holders of Senior Indebtedness.  No right of any present or future holders of
any Senior Indebtedness to enforce subordination as herein provided shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any act or failure to act in good faith by any
such holder, or by any noncompliance by the Company with the terms and
provisions of the Note, regardless of any knowledge thereof which any such
holder may have or be otherwise charged with. 
The holders of the Senior Indebtedness may, without in any way affecting
the obligations of the holder of the Note with respect hereto, at any time or
from time to time and in their absolute discretion, change the manner, place or
terms of payment of, change or extend the time of payment of, or renew,
increase or otherwise alter, any Senior Indebtedness or amend, modify or
supplement any agreement or instrument governing or evidencing such Senior
Indebtedness or any other document referred to therein, or exercise or refrain
from exercising any other of their rights under the Senior Indebtedness
including, without limitation, the waiver of default thereunder and the release
of any collateral securing such Senior Indebtedness, all without notice to or
assent from the holder of the Note.


Section 1.07.  Senior Indebtedness.  The term “Senior Indebtedness” shall mean all
Obligations (i) of the Company under, or in respect of, the Credit Agreement
(as amended, modified, supplemented, extended, restated, refinanced, replaced
or refunded from time to time, the “Credit Agreement”), dated as of June 10,
2005, among The Manitowoc Company, Inc., the lenders from time to time party
thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent, and each other
Credit Document (as defined in the Credit Agreement) to which the Company is a
party [, including the Subsidiary Guaranty (as defined in the Credit
Agreement)], and any renewal, extension, restatement, refinancing or refunding
of any thereof, (ii) of the Company under, or in respect of, any Swap Agreement
(as defined in the Credit Agreement) [, including any guaranty thereof under
the Subsidiary Guaranty], and (iii) of the Company under



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the Senior Notes and the
Subordinated Notes (each as defined in the Credit Agreement) or any other
Senior Note Document or Subordinated Note Document (each as defined in the
Credit Agreement).  As used herein, the
term “Obligation” shall mean all principal, interest, premium, reimbursement
obligations, penalties, fees, expenses, indemnities and other liabilities and
obligations (including any guaranties of the foregoing liabilities and obligations)
payable under the documentation governing any indebtedness (including interest
accruing after the commencement of any bankruptcy, insolvency, receivership or
similar proceeding at the rate provided in the documentation with respect
thereto, whether or not such interest is an allowed claim against the debtor in
any such proceeding).



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EXHIBIT
D


FORM
OF TERMINATION LETTER


                                       ,
            


JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders


to the Credit Agreement referred to below


[                                                  ]


[                                                  ]


Attention:  [                             ]


Ladies and Gentlemen:


We refer to the
Amended and Restated Credit Agreement (as amended, restated, supplemented or
otherwise modified and in effect from time to time, the “Credit Agreement”)
dated as of December      , 2006 among The Manitowoc
Company, Inc. (the “Borrower”), the Lenders party thereto and JPMorgan Chase
Bank, N.A., as Administrative Agent. 
Unless otherwise defined herein, capitalized terms used in this
Termination Letter have the meanings ascribed thereto in the Credit Agreement.


The Borrower
hereby terminates the status as a Subsidiary Borrower of                                   ,
a corporation incorporated under the laws of                                   
(the “Designated Subsidiary”), in accordance with Section 2.20 of the Credit
Agreement, effective as of the date of receipt of this notice by the
Administrative Agent.  The undersigned
hereby represent and warrant that all Loans made to the Designated Subsidiary
and all related interest have been paid in full on or prior to the date
hereof.  Notwithstanding the foregoing,
this Termination Letter shall not terminate (a) any Obligation of such
Designated Subsidiary that remains unpaid on the date hereof (including,
without limitation, any Obligation arising hereafter in respect of the
Designated Subsidiary under Sections 2.15, 2.16 or 2.17 of the Credit
Agreement) or (b) the obligations of the Borrower under the Parent Guaranty
with respect to any such unpaid Obligations.


	
  

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  THE MANITOWOC COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  



 


 













 


	
  

  	
  [SUBSIDIARY BORROWER]

  
	
  

  	
   

  
	
  

  	
  By:

  	
   

  
	
  

  	
   

  	
  Name:

  	
   

  
	
  

  	
   

  	
  Title:

  	
   

  



 



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