exv10w3






EXHIBIT 10.3




EXECUTION VERSION




SENIOR SECURED REVOLVING CREDIT AND GUARANTY AGREEMENT




dated as of June 27, 2008




among




DURA OPERATING CORP.

as Borrower,




DURA AUTOMOTIVE SYSTEMS, INC. (F/K/A NEW DURA, INC.)

as Parent,




CERTAIN SUBSIDIARIES OF DURA AUTOMOTIVE SYSTEMS, INC. AND DURA

OPERATING CORP.

as Guarantors,




VARIOUS LENDERS AND ISSUING BANKS,




and




GENERAL ELECTRIC CAPITAL CORPORATION

as Administrative Agent and Collateral Agent,




 






$110,000,000

Senior Secured Revolving Credit Facilities




 






GE CAPITAL MARKETS, INC.

as Sole Lead Arranger and Bookrunner




and




WACHOVIA BANK, NATIONAL ASSOCIATION

as Syndication Agent,




and




BANK OF AMERICA, N.A.

as Issuing Bank and Documentation Agent



















 

\









TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	SECTION 1. DEFINITIONS AND INTERPRETATION
	 	 	2	 
	 
	 	 	 	 
	1.1. Definitions
	 	 	2	 
	1.2. Accounting Terms
	 	 	35	 
	1.3. Interpretation, etc
	 	 	36	 
	 
	 	 	 	 
	SECTION 2. LOANS AND LETTERS OF CREDIT
	 	 	36	 
	 
	 	 	 	 
	2.1. [Reserved]
	 	 	36	 
	2.2. Revolving Facility
	 	 	36	 
	2.3. Swing Line Loans
	 	 	38	 
	2.4. Issuance of Letters of Credit and Purchase of Participations Therein
	 	 	40	 
	2.5. Pro Rata Shares; Availability of Funds
	 	 	43	 
	2.6. Use of Proceeds
	 	 	44	 
	2.7. Evidence of Debt; Register; Lenders’ Books and Records; Notes
	 	 	44	 
	2.8. Interest on Loans
	 	 	45	 
	2.9. Conversion/Continuation
	 	 	46	 
	2.10. Default Interest
	 	 	47	 
	2.11. Fees
	 	 	47	 
	2.12. Scheduled Reduction of Revolving Commitments
	 	 	48	 
	2.13. Voluntary Prepayments and Commitment Reductions
	 	 	48	 
	2.14. Mandatory Prepayments/Commitment Reductions
	 	 	49	 
	2.15. Application of Prepayments/Reductions
	 	 	50	 
	2.16. General Provisions Regarding Payments
	 	 	51	 
	2.17. Ratable Sharing
	 	 	53	 
	2.18. Making or Maintaining LIBOR Loans
	 	 	54	 
	2.19. Increased Costs; Capital Adequacy
	 	 	55	 
	2.20. Taxes; Withholding, etc
	 	 	57	 
	2.21. Obligation to Mitigate
	 	 	59	 
	2.22. Defaulting Lenders
	 	 	60	 
	2.23. Removal or Replacement of a Lender
	 	 	60	 
	2.24. Payment of Obligations
	 	 	61	 
	 
	 	 	 	 
	SECTION 3. CONDITIONS PRECEDENT
	 	 	61	 
	 
	 	 	 	 
	3.1. Closing Date
	 	 	61	 
	3.2. Conditions to Each Credit Extension
	 	 	65	 
	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	66	 
	 
	4.1. Organization; Requisite Power and Authority; Qualification
	 	 	66	 
	4.2. Capital Stock and Ownership
	 	 	66	 
	4.3. Due Authorization
	 	 	66	 
	4.4. No Conflict
	 	 	66	 
	4.5. Governmental Consents
	 	 	67	 
	4.6. Binding Obligation
	 	 	67	 
	4.7. Historical Financial Statements
	 	 	67	 
	4.8. Projections
	 	 	67	 
	4.9. No Material Adverse Change
	 	 	67	 
	4.10. No Restricted Junior Payments
	 	 	67	 
	4.11. Adverse Proceedings, etc
	 	 	68	 
	4.12. Payment of Taxes
	 	 	68	 
	4.13. Properties
	 	 	68	 






i









 




TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page
	4.14. Environmental Matters
	 	 	68	 
	4.15. No Defaults
	 	 	69	 
	4.16. Material Contracts
	 	 	69	 
	4.17. Governmental Regulation
	 	 	69	 
	4.18. Margin Stock
	 	 	69	 
	4.19. Employee Matters
	 	 	70	 
	4.20. Employee Benefit Plans
	 	 	70	 
	4.21. Compliance with Statutes, etc
	 	 	70	 
	4.22. Disclosure
	 	 	71	 
	4.23. Patriot Act
	 	 	71	 
	4.24. Solvency
	 	 	71	 
	4.25. Senior Indebtedness
	 	 	71	 
	 
	 	 	 	 
	SECTION 5. AFFIRMATIVE COVENANTS
	 	 	71	 
	 
	 	 	 	 
	5.1. Financial Statements and Other Reports
	 	 	72	 
	5.2. Existence
	 	 	75	 
	5.3. Payment of Taxes and Claims
	 	 	75	 
	5.4. Maintenance of Properties
	 	 	76	 
	5.5. Insurance
	 	 	76	 
	5.6. Inspections; Collateral Appraisals
	 	 	76	 
	5.7. Lenders Meetings
	 	 	77	 
	5.8. Compliance with Laws
	 	 	77	 
	5.9. Environmental
	 	 	77	 
	5.10. Subsidiaries
	 	 	78	 
	5.11. Further Assurances
	 	 	80	 
	5.12. Control Accounts; Approved Deposit Accounts
	 	 	80	 
	5.13. Post Closing Covenants
	 	 	81	 
	 
	 	 	 	 
	SECTION 6. NEGATIVE COVENANTS
	 	 	81	 
	 
	 	 	 	 
	6.1. Indebtedness
	 	 	82	 
	6.2. Liens
	 	 	84	 
	6.3. [Reserved.]
	 	 	85	 
	6.4. No Further Negative Pledges
	 	 	85	 
	6.5. Restricted Junior Payments
	 	 	86	 
	6.6. Restrictions on Subsidiary Distributions
	 	 	86	 
	6.7. Investments
	 	 	87	 
	6.8. Financial Covenants
	 	 	88	 
	6.9. Fundamental Changes; Disposition of Assets; Acquisitions
	 	 	89	 
	6.10. Disposal of Subsidiary Interests
	 	 	91	 
	6.11. Sales and Lease-Backs
	 	 	92	 
	6.12. Transactions with Shareholders and Affiliates
	 	 	92	 
	6.13. Conduct of Business
	 	 	92	 
	6.14. Modifications of Material Indebtedness, Organizational Documents and
Certain Other Agreements; Etc
	 	 	92	 
	6.15. Fiscal Year
	 	 	93	 
	 
	 	 	 	 
	SECTION 7. GUARANTY
	 	 	93	 
	 
	7.1. Guaranty of the Obligations
	 	 	93	 
	7.2. Contribution by Guarantors
	 	 	93	 






ii









 




TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page
	7.3. Payment by Guarantors
	 	 	94	 
	7.4. Liability of Guarantors Absolute
	 	 	94	 
	7.5. Waivers by Guarantors
	 	 	96	 
	7.6. Guarantors’ Rights of Subrogation, Contribution, etc
	 	 	97	 
	7.7. Subordination of Other Obligations
	 	 	97	 
	7.8. Continuing Guaranty
	 	 	97	 
	7.9. Authority of Guarantors or Company
	 	 	97	 
	7.10. Financial Condition of Company
	 	 	98	 
	7.11. Bankruptcy, etc
	 	 	98	 
	7.12. Discharge of Guaranty Upon Sale of Guarantor
	 	 	98	 
	7.13. Indemnity
	 	 	98	 
	 
	 	 	 	 
	SECTION 8. EVENTS OF DEFAULT
	 	 	98	 
	 
	 	 	 	 
	8.1. Events of Default
	 	 	99	 
	8.2. Actions in Respect of Letters of Credit
	 	 	101	 
	 
	 	 	 	 
	SECTION 9. AGENTS
	 	 	102	 
	 
	 	 	 	 
	9.1. Appointment of Agents
	 	 	102	 
	9.2. Powers and Duties
	 	 	102	 
	9.3. General Immunity
	 	 	102	 
	9.4. Agents Entitled to Act as Lender
	 	 	104	 
	9.5. Lenders’ Representations, Warranties and Acknowledgment
	 	 	104	 
	9.6. Right to Indemnity
	 	 	104	 
	9.7. Successor Administrative Agent and Collateral Agent
	 	 	105	 
	9.8. Collateral Documents and Guaranty
	 	 	105	 
	 
	 	 	 	 
	SECTION 10. MISCELLANEOUS
	 	 	106	 
	 
	 	 	 	 
	10.1. Notices
	 	 	107	 
	10.2. Expenses
	 	 	107	 
	10.3. Indemnity
	 	 	108	 
	10.4. Set-Off
	 	 	108	 
	10.5. Amendments and Waivers
	 	 	109	 
	10.6. Successors and Assigns; Participations
	 	 	110	 
	10.7. [Reserved]
	 	 	113	 
	10.8. Independence of Covenants
	 	 	113	 
	10.9. Survival of Representations, Warranties and Agreements
	 	 	113	 
	10.10. No Waiver; Remedies Cumulative
	 	 	114	 
	10.11. Marshalling; Payments Set Aside
	 	 	114	 
	10.12. Severability
	 	 	114	 
	10.13. Obligations Several; Independent Nature of Lenders’ Rights
	 	 	114	 
	10.14. Headings
	 	 	114	 
	10.15. APPLICABLE LAW
	 	 	114	 
	10.16. CONSENT TO JURISDICTION; SERVICE OF PROCESS
	 	 	115	 
	10.17. WAIVER OF JURY TRIAL
	 	 	115	 
	10.18. Confidentiality
	 	 	116	 
	10.19. Usury Savings Clause
	 	 	116	 
	10.20. Counterparts
	 	 	117	 
	10.21. Effectiveness
	 	 	117	 
	10.22. Patriot Act
	 	 	117	 
	10.23. Electronic Execution of Assignments
	 	 	117	 






iii









 




TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	APPENDICES:
	 	A	 	Commitments
	 
	 	B	 	Notice Addresses; Principal Offices
	 
	SCHEDULES:
	 	1.1(a)	 	Eligible Real Estate Assets
	 
	 	1.1(b)	 	Existing Letters of Credit
	 
	 	1.1(c)	 	Existing Joint Venture
	 
	 	3.1(g)	 	Foreign Subsidiary Stock Pledges
	 
	 	4.1(a)	 	Jurisdictions of Organization and Qualification
	 
	 	4.1(b)	 	Organizational and Capital Structure
	 
	 	4.2	 	Capital Stock and Ownership
	 
	 	4.7	 	Contingent Obligations
	 
	 	4.10	 	Restricted Junior Payments
	 
	 	4.11	 	Adverse Proceedings
	 
	 	4.13	 	Real Estate Assets
	 
	 	4.14	 	Environmental Matters
	 
	 	4.16	 	Material Contracts
	 
	 	5.13	 	Post-Closing Items
	 
	 	6.1(h)	 	Certain Indebtedness
	 
	 	6.1(o)	 	Foreign Intercompany Notes
	 
	 	6.2	 	Certain Liens
	 
	 	6.7	 	Certain Investments
	 
	 	6.9	 	Certain Asset Sales
	 
	 	6.12	 	Certain Affiliated Transactions
	 
	 	 	 	 
	EXHIBITS:
	 	A-1	 	Funding Notice
	 
	 	A-2	 	Conversion/Continuation Notice
	 
	 	A-3	 	Issuance Notice
	 
	 	B-1	 	Revolving Note
	 
	 	B-2	 	Swing Line Note
	 
	 	C	 	Assignment Agreement
	 
	 	D	 	Borrowing Base Certificate
	 
	 	E	 	Certificate Re Non-bank Status
	 
	 	F	 	Closing Date Certificate
	 
	 	G	 	Compliance Certificate
	 
	 	H	 	Counterpart Agreement
	 
	 	I-1	 	Intercreditor Agreement
	 
	 	I-2	 	European Intercreditor Agreement
	 
	 	J	 	Pledge and Security Agreement
	 
	 	K	 	Landlord Waiver and Consent Agreement
	 
	 	L	 	Secretary’s Certificate
	 
	 	M	 	Aircraft Security Agreement
	 
	 	N	 	Solvency Certificate







v









 








SENIOR SECURED REVOLVING CREDIT AND GUARANTY AGREEMENT




     This SENIOR SECURED REVOLVING CREDIT AND GUARANTY AGREEMENT, dated as of June 27, 2008, is
entered into by and among DURA OPERATING CORP., a Delaware corporation (“Company”), DURA AUTOMOTIVE
SYSTEMS, INC. (F/K/A NEW DURA, INC.), a Delaware corporation (“Parent”), certain SUBSIDIARIES OF
PARENT AND COMPANY, as Guarantors, the Lenders party hereto from time to time, GENERAL ELECTRIC
CAPITAL CORPORATION (“GE Capital”), as Administrative Agent (together with its permitted successors
in such capacity, “Administrative Agent”), and as Collateral Agent (together with its permitted
successor in such capacity, “Collateral Agent”) WACHOVIA BANK, NATIONAL ASSOCIATION, as Syndication
Agent (in such capacity, “Syndication Agent”), and BANK OF AMERICA, N.A., as Issuing Bank and
Documentation Agent (in such capacity, “Documentation Agent”).



RECITALS:




     WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth
for such terms in Section 1.1 hereof;



     WHEREAS, on October 30, 2006, Old Dura, Inc. (f/k/a Dura Automotive Systems, Inc.) (“Old
Dura”), Company and certain of its subsidiaries each filed a voluntary petition for relief under
Chapter 11 of the Bankruptcy Code with the United States Bankruptcy Court for the District of
Delaware (the “Bankruptcy Court”) which have been jointly administered under case number 06-11202
(KJC) (each a “Chapter 11 Case” and collectively, the “Chapter 11 Cases”);



     WHEREAS, on May 13, 2008, the Bankruptcy Court confirmed the Revised Joint Plan of
Reorganization under Chapter 11 of the Bankruptcy Code (with Further Technical Amendments), dated
May 12, 2008 (the “Plan”), submitted by the debtors in the Chapter 11 Cases;



     WHEREAS, Lenders have agreed to extend certain revolving credit facilities to Company, in an
aggregate principal amount not to exceed $110,000,000, the proceeds of which will be used, together
with the proceeds of the loans under the European AR Factoring Facilities, the European First Lien
Term Loan Agreement, the Second Lien Term Loan Agreement and additional cash to be repatriated from
the Company’s Foreign Subsidiaries (each as defined below), (i) to repay in full the amounts
outstanding under the Existing DIP Agreements, (ii) to otherwise enable Company to consummate the
Plan and to pay related transaction costs, fees and expenses, (iii) to provide financing for
working capital purposes, general corporate purposes and permitted Capital Expenditures from time
to time for Company and its Domestic Subsidiaries, and (iv) to pay interest, fees and expenses
owing to the Agents and the Lenders pursuant to this Agreement;



     WHEREAS, Company has agreed to secure all of its Obligations by granting to Collateral Agent,
for the benefit of Secured Parties, a Lien, subject to the priorities set forth in the Credit
Documents, on substantially all of its assets, including a pledge of all of the Capital Stock of
each of its directly-owned Domestic Subsidiaries and such percentage of the Capital Stock of its
first-tier Foreign Subsidiaries as is set forth on Schedule 3.1(g); and



     WHEREAS, Guarantors have agreed to guarantee the Obligations of Company and to secure such
Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a Lien, subject to
the priorities set forth in the Credit Documents, on substantially all of their respective assets,
including a













 







pledge of all of the Capital Stock of each of their directly-owned Domestic Subsidiaries and
such percentage of the Capital Stock of their first-tier Foreign Subsidiaries as is set forth on
Schedule 3.1(g);



     NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:



SECTION 1. DEFINITIONS AND INTERPRETATION




     1.1. Definitions. The following terms used herein, including in the preamble, recitals,
exhibits and schedules hereto, shall have the following meanings:



          “Access Agreement” as defined in the definition of JCI Agreements.




          “Account” has the meaning given such term in the UCC.




          “Account Debtor” means any Person obligated on an Account.




          “Acquisition Consideration” shall mean the purchase consideration for any Permitted
Acquisition and all other payments by any Credit Party in exchange for, or as part of, or in
connection with, any Permitted Acquisition, whether paid in cash or by exchange of Capital Stock or
of properties or otherwise and whether payable at or prior to the consummation of such Permitted
Acquisition or deferred for payment at any future time, whether or not any such future payment is
subject to the occurrence of any contingency, and includes any and all payments representing the
purchase price and any assumptions of Indebtedness, “earn-outs” and other agreements to make any
payment the amount of which is, or the terms of payment of which are, in any respect subject to or
contingent upon the revenues, income, cash flow or profits (or the like) of any person or business.




          “Adjusted Eligible Receivables” shall mean the Eligible Receivables, minus the
Dilution Reserve.




          “Administrative Agent” as defined in the preamble hereto.




          “Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration (including any purportedly on behalf of
Company, Parent or any of their Subsidiaries) at law or in equity, or before or by any Governmental
Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the
knowledge of Company, Parent or any of their Subsidiaries, threatened in writing against or
affecting Company, Parent or any of their Subsidiaries or any property of Company, Parent or any of
their Subsidiaries.




          “Affected Lender” as defined in Section 2.18(b).




          “Affected Loans” as defined in Section 2.18(b).




          “Affiliate” means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled
by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 10% or more of the Securities having ordinary voting power for
the election of directors



2









 






of such Person or (ii) to direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities or by contract or otherwise.




          “Agents” means each of Administrative Agent and Collateral Agent.




          “Aggregate Amounts Due” as defined in Section 2.17.




          “Aggregate Payments” as defined in Section 7.2.




          “Agreement” means this Senior Secured Revolving Credit and Guaranty Agreement, as it may be
amended, restated, supplemented or otherwise modified from time to time.




          “Aircraft Security Agreement” means the Aircraft Security Agreement to be executed by each
Credit Party that owns any aircraft substantially in the form of Exhibit M, as it may be amended,
restated, supplemented or otherwise modified from time to time




          “Applicable Margin” means a percentage equal to (a) during the period from the
Closing Date until the first date when any adjustment would be made pursuant to clause (b) of this
definition, 1.50% for Base Rate Loans, 2.75% for LIBOR Loans and 1.00% for the Unused Commitment
Fee, and (b) on the first day of the first month following delivery of the Borrowing Base
Certificate for the month ending December 31, 2008, and thereafter, on the first day of the first
month following delivery of the Borrowing Base Certificate for each of the months ending March 31,
June 30, September 30 and December 31 in any year until, in each case, the first day when any
adjustment would be made pursuant to this clause (b), a percentage equal to the percentage set
forth below in the applicable column opposite the level corresponding to the average daily amount
of Excess Availability for the most recently ended Fiscal Quarter:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	LEVEL	 	AVERAGE DAILY EXCESS AVAILABILITY	 	BASE RATE LOANS	 	LIBOR LOANS	 	UNUSED COMMITMENT FEE
	I

	 	Greater than $60 million

	 	 	1.25	%	 	 	2.50	%	 	 	1.00	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	II

	 	Greater than $40 million, less than or equal to $60 million
	 	 	1.50	%	 	 	2.75	%	 	 	0.75	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	III

	 	Less than or equal to $40 million
	 	 	1.75	%	 	 	3.00	%	 	 	0.50	%





Notwithstanding anything to the contrary set forth in this Agreement, the Applicable Margins shall
equal the highest percentages set forth in the table above, effective immediately upon (x) the
occurrence of any Event of Default under Section 8.1(f) or (g) or (y) the delivery of a
notice by the Administrative Agent to Company after the occurrence of any other Event of Default
and, in each case, for as long as such Event of Default shall be continuing.




          “Applicable Reserve Requirement” means, at any time, for any LIBOR Loan, the maximum rate,
expressed as a decimal, at which reserves (including, without limitation, any basic marginal,
special, supplemental, emergency or other reserves) are required to be maintained with respect
thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under
regulations issued from time to time by the Board of Governors of the Federal Reserve System or
other applicable



3









 






banking regulator. Without limiting the effect of the foregoing, the Applicable
Reserve Requirement
shall reflect any other reserves required to be maintained by such member banks with respect
to (i) any category of liabilities which includes deposits by reference to which the applicable
LIBOR Rate or any other interest rate of a Loan is to be determined, or (ii) any category of
extensions of credit or other assets which include LIBOR Loans. A LIBOR Loan shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements
without benefits of credit for proration, exceptions or offsets that may be available from time to
time to the applicable Lender. The rate of interest on LIBOR Loans shall be adjusted automatically
on and as of the effective date of any change in the Applicable Reserve Requirement.




          “Appraised Value” means (i) with respect to any Eligible Real Estate Asset, the fair market
value thereof, (ii) with respect to Eligible Equipment, the net orderly liquidation value thereof,
and (iii) with respect to Eligible Aircraft, the orderly liquidation value thereof, in each case,
as determined by reference to the most recent applicable appraisal thereof approved by
Administrative Agent (in its discretion exercised reasonably) and conducted by an independent
appraiser satisfactory to Administrative Agent.




          “Approved Deposit Account” means a Deposit Account that is the subject of an effective Deposit
Account Control Agreement and that is maintained by any Credit Party with a Deposit Account Bank.
“Approved Deposit Account” includes all monies on deposit in a Deposit Account and all certificates
and instruments, if any, representing or evidencing such Deposit Account.




          “Approved Securities Intermediary” means a “securities intermediary” or “commodity
intermediary” (as such terms are defined in the UCC) selected or approved by Administrative Agent;
it being understood and agreed that the “securities intermediaries” and “commodities
intermediaries” of the Credit Parties on the Closing Date are Approved Securities Intermediaries.




          “Asset Sale” means a sale, lease or sub-lease (as lessor or sublessor), sale and leaseback,
assignment, conveyance, exclusive license (as licensor or sublicensor) transfer or other
disposition to, or any exchange of property with, any Person (other than Company or any Guarantor),
in one transaction or a series of transactions, of all or any part of Parent’s or any of its
Subsidiaries’ businesses, assets or properties of any kind, whether real, personal, or mixed and
whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed,
including, without limitation, the Capital Stock of any of Parent’s Subsidiaries, other than
inventory sold, leased or licensed out in the ordinary course of business.




          “Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form
of Exhibit C, with such amendments or modifications as may be approved by Administrative Agent.




          “Available Credit” means, at any time, (a) the lesser of (i) the then effective Revolving
Commitments and (ii) the Borrowing Base at such time, minus (b) the aggregate amount of the
Total Utilization of Revolving Commitments at such time.




          “Authorized Officer” means, as applied to any Person, any individual holding the position of
chairman of the board (if an officer), chief executive officer, president or one of its vice
presidents (or the equivalent thereof), and such Person’s chief financial officer, treasurer,
assistant treasurer, secretary or assistant secretary.




          “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and
hereafter in effect, or any successor statute.




4









 








          “Bankruptcy Court” means the United States Bankruptcy Court for the District of Delaware.




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




          “Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base
Rate.




          “Beneficiary” means each Agent, Issuing Bank, Lender and Lender Counterparty.




          “Board of Governors” means the Board of Governors of the United States Federal Reserve System,
or any successor thereto.




          “Borrowing Base” means, at any time, the sum of (a) 85% of Adjusted Eligible
Receivables at such time, plus (b) the least of (i) 85% of the Net Orderly Liquidation
Value Percentage of Eligible Inventory, (ii) 65% of Eligible Inventory (valued at the lower of cost
and market on a first in, first out basis), and (iii) the Inventory Cap, plus (c) the
lesser of (i) the sum of (x) 50% of the Appraised Value of Eligible Real Estate Assets, (y) 85% of
the Appraised Value of Eligible Equipment and (z) 75% of the Appraised Value of Eligible Aircraft,
and (ii) the Fixed Asset Cap, in each case less such Eligibility Reserves as Administrative Agent
determines in its commercially reasonable credit judgment exercised in good faith.




          “Borrowing Base Certificate” means a certificate of Company substantially in the form of
Exhibit D.




          “Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York or is a day on which banking institutions located
in such state are authorized or required by law or other governmental action to close, and (ii)
with respect to all notices, determinations, fundings and payments in connection with the LIBOR
Rate or any LIBOR Loans, the term “Business Day” shall mean any day which is a Business Day
described in clause (i) and which is also a day for trading by and between banks in Dollar deposits
in the London interbank market.




          “Capital Expenditures” means, for any period, the aggregate of all expenditures of the Credit
Parties during such period for any fixed assets or improvements or for replacements, substitutions
or additions thereto are required to be capitalized under GAAP. Notwithstanding the foregoing,
Capital Expenditures shall not include, without duplication: (a) the consideration for any
Permitted Acquisition or Investments; (b) capital expenditures financed with the net cash proceeds
of any issuance of Capital Stock by the Company after the Closing Date; (c) capital expenditures in
respect of the purchase price of equipment to the extent the consideration therefor consists of
any combination of (i) equipment or other assets traded in at the time of such purchase pursuant to
an Asset Sale permitted hereunder and (ii) the proceeds of a concurrent Asset Sale of equipment or
other assets permitted hereunder; (d) capital expenditures funded with net cash proceeds which
represent reinvestments; (e) interest capitalized in respect of capital expenditures; and (f)
expenditures that are accounted for as capital expenditures of such Person and that actually are
paid for by a third party (excluding any Credit Party) and for which no Credit Party has provided
or is required to provide or incur, directly or indirectly, any consideration or obligation to such
third party or any other Person (whether before, during or after such period).




5









 








          “Capital Lease” means, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be
accounted for as a capital lease on the balance sheet of that Person and the amount of such
obligations shall be the capitalized amount thereof determined in accordance with GAAP.




          “Capital Stock” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including, without limitation, partnership interests and
membership interests, and any and all warrants, rights or options to purchase or other arrangements
or rights to acquire any of the foregoing.




          “Cash” means money, currency or a credit balance in any Deposit Account.




          “Cash Collateral Account” means any Deposit Account or Securities Account that is (a)
established by Collateral Agent from time to time in its sole discretion to receive Cash and Cash
Equivalents (or purchase Cash or Cash Equivalents with funds received) from the Credit Parties or
Persons acting on their behalf pursuant to the Credit Documents, (b) with such depositaries and
securities intermediaries as Collateral Agent may determine in its sole discretion, (c) in the name
of Collateral Agent (although such account may also have words referring to any Credit Party and
the account’s purpose), (d) under the control of Collateral Agent and (e) in the case of a
Securities Account, with respect to which Collateral Agent shall be the Entitlement Holder and the
only Person authorized to give Entitlement Orders with respect thereto.




          “Cash Equivalents” means, as at any date of determination:




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




          (b) investments in commercial paper maturing within one year 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, banker’s acceptances, time deposits, Eurodollar
time deposits and overnight bank deposits maturing within twelve (12) months from the date of
acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by any Lender, any domestic office of any commercial bank organized under the
laws of the United States of America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000;




          (d) repurchase obligations with a term of not more than 90 days for securities described in
clause (a) above and entered into with a financial institution satisfying the criteria described in
clause (c) above;




          (e) money market funds that (i) comply with the criteria set forth in Securities and Exchange
Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by
Moody’s and (iii) have portfolio assets of at least $5,000,000,000;




6









 








          (f) securities with maturities of one year or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at least A by S&P or A2 by Moody’s;




          (g) securities with maturities of six months or less from the date of acquisition backed by
standby letters of credit issued by a Lender or any commercial bank satisfying the requirements of
clause (c) of this definition;




          (h) money market mutual or similar funds that invest exclusively in assets satisfying the
requirements of clauses (a) through (g) of this definition; and




          (i) investments with foreign governmental entities which are members of the OECD or foreign
banks organized under the laws of countries which are members of the OECD similar to the
investments set forth in clauses (a), (b), (c) and (d) above, so long as such foreign bank has
combined capital and surplus of a Dollar Equivalent or no less than $500,000,000.




          “Cash Management Document” means any certificate, agreement or other document executed by any
Credit Party in respect of the Cash Management Obligations of any Credit Party.




          “Cash Management Obligation” means, as applied to any Person, any direct or indirect
liability, contingent or otherwise, of such Person in respect of cash management services
(including treasury, depository, overdraft, credit or debit card, electronic funds transfer and
other cash management arrangements) provided after the date hereof (regardless of whether these or
similar services were provided prior to the date hereof by any Agent, any Lender or any Affiliate
of any of them) by any Agent, any Lender or any Affiliate of any of them in connection with this
Agreement or any Credit Document (other than Cash Management Documents), including obligations for
the payment of fees, interest, charges, expenses, attorneys’ fees and disbursements in connection
therewith.




          “Certificate Re Non-Bank Status” means a certificate substantially in the form of Exhibit E.




          “Change of Control” means, at any time, any of the following events: (a) any Person or group
(within the meaning of Rule 13-d-5 the Exchange Act), shall become after the Closing Date (other
than a Permitted Holder) the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
issued and outstanding capital stock of Parent representing 35% or more of the voting power in
elections for directors of Parent on a fully diluted basis; (b) a majority of the members of the
board of directors of Parent or the board of directors of Company shall cease to be Continuing
Members; (c) Parent shall cease to own, directly or indirectly, 100% of the issued and outstanding
Capital Stock of Company; or (d) a change of control (or similar concept) under the European First
Lien Term Loan Agreement, the Second Lien Term Loan Agreement or any agreement evidencing
Indebtedness described in Section 8.1(b), shall occur.




          “Chapter 11 Case” and “Chapter 11 Cases” shall have the meaning ascribed to it in the recitals
to the Agreement.




          “Closing Date” means June 27, 2008.




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          “Closing Date Certificate” means a Closing Date Certificate substantially in the form of
Exhibit F.




          “Collateral” means, collectively, all of the real, personal and mixed property (including
Capital Stock) in which Liens are purported to be granted pursuant to the Collateral Documents as
security for all or part of the Obligations.




          “Collateral Agent” as defined in the preamble hereto.




          “Collateral Documents” means the Pledge and Security Agreement, the Aircraft Security
Agreement, the Mortgages, intellectual property security agreements, the Intercreditor Agreement,
the European Intercreditor Agreement, Foreign Collateral Agreements, the Landlord Personal Property
Collateral Access Agreements, if any, and all other instruments, documents and agreements
(including, but not limited to, any abstract acknowledgement of indebtedness created for the
purpose of creating security interests under German law) delivered by any Credit Party pursuant to
this Agreement or any of the other Credit Documents in order to grant to Collateral Agent, for the
benefit of the Secured Parties, a Lien on any real, personal or mixed property of that Credit Party
as security for all or part of the Obligations.




          “Commitment” means any Lender’s Revolving Commitment or Swing Line Commitment.




          “Company” as defined in the preamble hereto.




          “Compliance Certificate” means a Compliance Certificate substantially in the form of
Exhibit G.




          “Consolidated Adjusted EBITDA” means, for any period, an amount determined for Parent and its
Subsidiaries on a consolidated basis equal to (i) the sum, without duplication, of the amounts for
such period of (a) Consolidated Net Income, (b) Consolidated Interest Expense, (c) consolidated
income withholding, franchise and similar tax expense, (d) total depreciation expense, (e) total
amortization expense (including amortization of intangibles), (f) fees, costs and expenses incurred
in connection with the credit facilities hereunder, the European AR Factoring Facilities, the
European First Lien Term Loan Agreement, the Second Lien Term Loan Agreement, the issuance by
Parent of its Series A Redeemable Voting Mandatorily Convertible Preferred Stock on the Closing
Date, restructuring and reorganization, (g) fees, costs, expense and charges in connection with
the Company’s emergence from the Chapter 11 Cases so long as such fees, costs, expenses are
incurred on or prior to the Closing Date or, if incurred within one year after the Closing Date, do
not exceed $9,000,000 in cash (and all non-cash charges whenever incurred with respect to the
foregoing fees, costs, expenses and charges), (h) Cash and non-Cash non-recurring (or recurring
with respect to non-cash) items reducing Consolidated Net Income, in each case, without duplication
and including charges related to the ongoing operational restructuring and other non-recurring
items, (i) losses from extraordinary items, (j) foreign exchange losses, (k) fees, costs and
expenses of the Company and its Subsidiaries incurred as a result of Permitted Acquisitions,
Investments, Asset Sales, issuance of Capital Stock or Indebtedness permitted hereunder, (l)
non-cash compensation charges, including any such charges arising from stock options, restricted
stock grants or other equity-incentive programs, (m) expenses to the extent actually reimbursed in
cash under any indemnification, and (n) non-recurring losses as a result of fresh-start accounting
procedures in connection with the emergence from the Chapter 11 Cases, minus (ii) to the extent
included in Consolidated Net Income, the sum of the amounts for such period of (a) Cash and
non-Cash non-recurring items increasing Consolidated Net Income for such period, (b) gains from
extraordinary items,




8









 







(c) foreign exchange gains and (d) non-recurring gains as a result of fresh-start accounting
in connection with the emergence from the Chapter 11 Cases.




          “Consolidated Interest Expense” means, for any period, total interest expense (including that
portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of Parent
and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of Parent
and its Subsidiaries, including all commissions, discounts and other fees and charges owed with
respect to letters of credit and net costs under Interest Rate Agreements, but excluding, however,
any amounts referred to in Section 2.11(d) payable on or before the Closing Date.




          “Consolidated Net Income” means, for any period, (i) the net income (or loss) of Parent and
its Subsidiaries on a consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP, minus (ii) (a) the income (or loss) of any Person
(other than a Subsidiary of Parent) in which any other Person (other than Parent or any of its
Subsidiaries) has a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to Parent or any of its Subsidiaries by such Person during such period,
(b) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of Parent
or is merged into or consolidated with Parent or any of its Subsidiaries or that Person’s assets
are acquired by Parent or any of its Subsidiaries, (c) the income of any Subsidiary of Parent to
the extent that the declaration or payment of dividends or similar distributions by that Subsidiary
of that income is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable
to that Subsidiary, (d) any after-tax gains or losses attributable to Asset Sales or returned
surplus assets of any Pension Plan, and (e) (to the extent not included in clauses (a) through (d)
above) any net extraordinary gains or net extraordinary losses.




          “Consolidating” means, in connection with any financial statements of Parent, consolidating
between Credit Parties and Subsidiaries of Parent which are not Credit Parties.




          “Continuing Member” means a member of the board of directors of Parent or Company who either
(a) was a member of such board of directors on the Closing Date and has been such continuously
thereafter or (b) became a member of such board of directors after the Closing Date and whose
election or nomination for election was approved by a vote of the majority of the Continuing
Members then members of such board of directors.




          “Contractual Obligation” means, as applied to any Person, any provision of any Security issued
by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or
other similar instrument to which that Person is a party or by which it or any of its properties is
bound or to which it or any of its properties is subject.




          “Contributing Guarantors” as defined in Section 7.2.




          “Control Account” means a Securities Account that is the subject of a Securities Account
Control Agreement and that is maintained by any Credit Party with an Approved Securities
Intermediary. “Control Account” includes all Financial Assets held in a Securities Account and all
certificates and instruments, if any, representing or evidencing the Financial Assets contained
therein.




          “Control Agreements” means any deposit, securities or other account control agreement
including any Deposit Account Control Agreement and Securities Account Control Agreement.




9









 








          “Conversion/Continuation Date” means the effective date of a continuation or conversion, as
the case may be, as set forth in the applicable Conversion/Continuation Notice.




          “Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the
form of Exhibit A-2.




          “Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit H
delivered by a Credit Party pursuant to Section 5.10.




          “Credit Date” means the date of a Credit Extension.




          “Credit Document” means any of this Agreement, the Notes, if any, the Collateral Documents,
any documents or certificates executed by any Credit Party in favor of Issuing Bank relating to
Letters of Credit, and all other documents, instruments or agreements executed and delivered by a
Credit Party for the benefit of any Agent, Issuing Bank or any Lender in connection herewith on or
after the date hereof.




          “Credit Extension” means the making of a Loan or the issuing of a Letter of Credit.




          “Credit Party” means Parent, Company and the Guarantors from time to time party to this
Agreement or any Collateral Document.




          “Currency Agreement” means any foreign exchange contract, currency swap agreement, futures
contract, option contract, synthetic cap or other similar agreement or arrangement, each of which
is for the purpose of hedging the foreign currency risk associated with Company’s and its
Subsidiaries’ operations and not for speculative purposes.




          “Default” means a condition or event that, after notice or lapse of time or both, would
constitute an Event of Default.




          “Defaulted Loan” as defined in Section 2.22.




          “Defaulting Lender” as defined in Section 2.22.




          “Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account evidenced by a
negotiable certificate of deposit.




          “Deposit Account Bank” means a financial institution selected by the Company and reasonably
approved by Administrative Agent.




          “Deposit Account Control Agreement” means an agreement, in form and substance reasonably
satisfactory to Collateral Agent, entered into by Company and/or a Guarantor, Collateral Agent and
a Deposit Account Bank which maintains one or more Deposit Accounts for Company or such Guarantor
pursuant to which Deposit Account Bank, among other things, to the extent requested by Collateral
Agent, waives its rights of setoff, consolidation or recoupment and any other claim against such
Deposit Accounts and covenants to initiate and maintain a cash management system in favor of
Collateral Agent.




10









 








          “Dilution Factors” shall mean, without duplication, with respect to any period, the aggregate
amount of all deductions, credit memos, returns, adjustments, allowances, bad debt write-offs and
other non-cash credits which are recorded to reduce Company’s and the Guarantors’ Accounts in a
manner consistent with current and historical accounting practices of Parent, Company and the
Guarantors, as applicable.




          “Dilution Ratio” shall mean, at any date, the amount (expressed as a percentage) equal to (a)
the aggregate amount of the applicable Dilution Factors for the twelve (12) fiscal month period
most recently ended divided by (b) total gross sales by Company and the Guarantors for the
twelve (12) fiscal month period most recently ended or such other amount as may be determined by
Administrative Agent in its reasonable discretion in the event Company is unable to calculate
dilution effectively in the manner contemplated.




          “Dilution Reserve” shall mean, at any date, (a) the amount (if any) by which the Dilution
Ratio exceeds 5.00% multiplied by (b) the Eligible Accounts on such date. If the Dilution
Ratio does not exceed 5.00%, the Dilution Reserve shall be zero.




          “Documentation Agent” as defined in the preamble hereto.




          “Dollars” and the sign “$” mean the lawful money of the United States of America.




          “Domestic Subsidiary” means any existing or subsequently acquired or organized Subsidiary of
Parent organized under the laws of the United States of America, any State thereof or the District
of Columbia (other than any Existing Joint Venture and the Proposed Joint Venture if it is so
organized).




          “Eligibility Reserves” means such eligibility reserves as Administrative Agent may from time
to time establish with respect to any component of the Borrowing Base or with respect to
Obligations that are or may become due and payable under Hedge Agreements up to $2,000,000, in
Administrative Agent’s discretion exercised in its commercially reasonable judgment and to the
extent not already reflected in the calculation of Borrowing Base.




          “Eligible Aircraft” means, at any time, any aircraft of Company and each Guarantor which is
included in the Borrowing Base at the request of the Company, but excluding any aircraft:




          (a) which is not subject to a perfected Lien in favor of Collateral Agent;




          (b) which is subject to any Lien other than (i) a Lien in favor of Collateral Agent and (ii) a
Permitted Lien which does not have priority over the Lien in favor of Collateral Agent;




          (c) which is obsolete, unmerchantable or unfit for sale;




          (d) with respect to which any covenant, representation, or warranty contained in this
Agreement or the Pledge and Security Agreement or the Aircraft Security Agreement has been breached
or is not true and which does not conform to all standards imposed by any Governmental Authority;




          (e) in which any Person other than Company or a Guarantor shall have any ownership, interest
or title thereto;




11









 








          (f) which is not covered by casualty and liability insurance reasonably acceptable to
Collateral Agent;




          (g) which is not registered with the U.S. Federal Aviation Administration;




          (h) which Administrative Agent otherwise determines in its commercially reasonable credit
judgment exercised in good faith is unacceptable; or




          (i) with respect to which Administrative Agent has not received a satisfactory appraisal from
a third party appraiser reasonably acceptable to Administrative Agent.




In the event that aircraft which was previously Eligible Aircraft ceases to be Eligible Aircraft
hereunder, Company shall exclude such aircraft from Eligible Aircraft on, and at the time of
submission to Administrative Agent of, the next Borrowing Base Certificate.




          “Eligible Assignee” means (i) any Lender, any Affiliate of any Lender and any Related Fund
(any two or more Related Funds being treated as a single Eligible Assignee for all purposes
hereof), and (ii) any commercial bank, insurance company, investment or mutual fund or other entity
that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which
extends credit or buys loans as one of its businesses.




          “Eligible Equipment” means, at any time, the Equipment of Company (other than tooling and
molds) and each Guarantor (other than aircraft), but excluding any Equipment:




          (a) which is not subject to a perfected Lien in favor of Collateral Agent;




          (b) which is subject to any Lien other than (i) a Lien in favor of Collateral Agent and (ii) a
Permitted Lien which does not have priority over the Lien in favor of Collateral Agent;




          (c) which is obsolete, unmerchantable or unfit for sale;




          (d) with respect to which any covenant, representation, or warranty contained in this
Agreement or the Pledge and Security Agreement has been breached or is not true and which does not
conform to all standards imposed by any Governmental Authority;




          (e) in which any Person other than Company or a Guarantor shall have any ownership, interest
or title thereto;




          (f) which is not covered by casualty and liability insurance acceptable to Collateral Agent;




          (g) which is not located in the U.S.;




          (h) which is located in any location leased by any Credit Party unless the lessor has
delivered to the Collateral Agent a Landlord Personal Property Collateral Access Agreement or a
reserve for charges and other amounts due or to become due with respect to such facility has been
established by Administrative Agent in its commercially reasonable credit judgment exercised in
good faith;




          (i) which is in the possession of a bailee and is not evidenced by a negotiable document of
title, unless (i) such warehouseman or bailee has delivered to Administrative Agent a


12









 







Landlord Personal Property Collateral Access Agreement and such other documentation as
Administrative Agent may require or (ii) an appropriate reserve for charges and other amounts due
or to become due to such bailee has been established by Administrative Agent in its commercially
reasonable credit judgment exercised in good faith;




          (j) which is located in any location that is subject to a mortgage in favor of any person
other than Administrative Agent or Collateral Agent, unless (i) the mortgagee for such location has
delivered to Collateral Agent a mortgagee waiver in form and substance satisfactory to
Administrative Agent or (ii) the Intercreditor Agreement provides that Collateral Agent shall have
a right of access to such locations;




          (k) which consists of automobiles or other Equipment subject to a certificate of title
statute;




          (l) which Administrative Agent otherwise determines in its commercially reasonable credit
judgment exercised in good faith is unacceptable; or




          (m) with respect to which Administrative Agent has not received a satisfactory appraisal from
a third party appraiser reasonably acceptable to Administrative Agent.




          In the event that Equipment which was previously Eligible Equipment ceases to be Eligible Equipment
hereunder, Company shall exclude such Equipment from Eligible Equipment on, and at the time of
submission to Administrative Agent of, the next Borrowing Base Certificate.




          “Eligible Inventory” means, at any time, the Inventory of Company and each Guarantor, but
excluding any Inventory:




          (a) which is not subject to a perfected Lien in favor of Collateral Agent;




          (b) which is subject to any Lien other than (i) a Lien in favor of Collateral Agent and (ii) a
Permitted Lien which does not have priority over the Lien in favor of Collateral Agent;




          (c) which is excess, slow moving, obsolete, unmerchantable, unfit for sale or not salable at
prices approximating at least the cost of such Inventory in the ordinary course of business;




          (d) with respect to which any covenant, representation, or warranty contained in this
Agreement or the Pledge and Security Agreement has been breached or is not true and which does not
conform to all standards imposed by any Governmental Authority;




          (e) in which any Person other than Company or applicable Guarantor shall (i) have any direct
or indirect ownership, interest or title to such Inventory or (ii) be indicated on any purchase
order or invoice with respect to such Inventory as having or purporting to have an interest
therein;




          (f) which is not finished goods (unless it is work in process or raw materials inventory),
manufacturing maintenance or repair parts, packaging and shipping materials, manufacturing
supplies, samples, prototypes, displays or display items, bill-and-hold goods, goods that are
returned or marked for return, repossessed goods, defective or damaged goods, goods held on
consignment, or goods which are not of a type held for sale in the ordinary course of business;




13









 








          (g) which is not located in the U.S. or is in transit with a common carrier from vendors and
suppliers;




          (h) which is located in any location leased by any Credit Party unless the lessor has
delivered to the Collateral Agent a Landlord Personal Property Collateral Access Agreement or a
reserve for charges and other amounts due or to become due with respect to such facility has been
established by Administrative Agent in its commercially reasonable credit judgment exercised in
good faith;




          (i) which is located in any third party warehouse or is in the possession of a bailee (other
than a third party processor) and is not evidenced by a negotiable document of title, unless (i)
such warehouseman or bailee has delivered to Administrative Agent a Landlord Personal Property
Collateral Access Agreement and such other documentation as Administrative Agent may require or
(ii) an appropriate reserve for charges and other amounts due or to become due to such warehouseman
or bailee has been established by Administrative Agent in its commercially reasonable credit
judgment exercised in good faith;




          (j) which is located in any location that is subject to a mortgage in favor of any person
other than Administrative Agent or Collateral Agent, unless (i) the mortgagee for such location has
delivered to Collateral Agent a mortgagee waiver in form and substance satisfactory to
Administrative Agent or (ii) the Intercreditor Agreement provides that Collateral Agent shall have
a right of access to such locations;




          (k) which is being processed offsite at a third party location or outside processor, or is
in-transit to or from said third party location or outside processor;




          (l) which is a discontinued product or component thereof in excess of quantities required
under customer purchase agreements;




          (m) which is the subject of a consignment by Company or the applicable Guarantor as consignor;




          (n) which is perishable;




          (o) which contains or bears any intellectual property rights licensed to Company or the
applicable Guarantor unless Collateral Agent may sell or otherwise dispose of such Inventory
without (i) infringing the rights of such licensor, (ii) violating any contract with such licensor,
or (iii) incurring any liability with respect to payment of royalties other than royalties incurred
pursuant to sale of such Inventory under the current licensing agreement;




          (p) which is not reflected in a current perpetual inventory report of Company or the
applicable Guarantor (unless such Inventory is reflected in a report to Administrative Agent as “in
transit” Inventory);




          (q) to the extent of that portion of the cost of such Inventory which is attributable to
intercompany profit among Company or the applicable Guarantor and their Affiliates;




          (r) which is covered by a negotiable document of title, unless such document has been
delivered to Collateral Agent with all necessary endorsements, free and clear of all Liens except
those in favor of Collateral Agent and other junior Liens to the extent permitted hereunder;




14









 








          (s) which Administrative Agent otherwise determines in its commercially reasonable credit
judgment exercised in good faith is unacceptable; or




          (t) with respect to which Administrative Agent has not received a satisfactory appraisal from
a third party appraiser reasonably acceptable to Administrative Agent.




In the event that Inventory which was previously Eligible Inventory ceases to be Eligible Inventory
hereunder, Company shall exclude such Inventory from Eligible Inventory on, and at the time of
submission to Administrative Agent of, the next Borrowing Base Certificate.




          “Eligible Real Estate Assets” means, at any time, the Real Estate Assets listed on Schedule
1.1(a) (as amended from time to time by mutual agreement of the Company and the Administrative
Agent) of Company and each Guarantor, but excluding any Real Estate Asset:




          (a) which is not subject to a perfected Lien in favor of Collateral Agent;




          (b) which is subject to any Lien other than (i) a Lien in favor of Collateral Agent and (ii) a
Permitted Lien which does not have priority over the Lien in favor of Collateral Agent;




          (c) with respect to which any covenant, representation, or warranty contained in this
Agreement or the applicable Mortgage has been breached or is not true and which does not conform to
all standards imposed by any Governmental Authority;




          (d) in which any Person other than Company or a Guarantor shall have any direct or indirect
ownership interest or title thereto;




          (e) which is not covered by title, casualty and liability insurance reasonably acceptable to
Collateral Agent;




          (f) which Administrative Agent otherwise determines in its commercially reasonable credit
judgment exercised in good faith is unacceptable; or




          (g) with respect to which Administrative Agent has not received a satisfactory appraisal from
a third party appraiser reasonably acceptable to Administrative Agent.




In the event that any Real Estate Asset which was previously an Eligible Real Estate Asset ceases
to be Eligible Real Estate Asset hereunder, Company shall exclude such Real Estate Asset from
Eligible Real Estate Assets on, and at the time of submission to Administrative Agent of, the next
Borrowing Base Certificate.




          “Eligible Receivables” means, at any time, the aggregate Accounts of Company and each
Guarantor, but excluding any Account:




          (a) which is not subject to a perfected security interest in favor of Collateral Agent;




          (b) which is subject to any Lien other than (i) a Lien in favor of Collateral Agent and (ii) a
Permitted Lien which does not have priority over the Lien in favor of Collateral Agent other than
to the extent Eligibility Reserves have been established with respect to any such priority;




15









 








          (c) which (i) is unpaid more than 90 days (105 days in the case of any Account with an
original due date more than 30 days after the date of the original invoice therefor) after the date
of the original invoice therefor or more than 60 days after the original due date, or (ii) which
has been written off the books of Company or Guarantor Subsidiaries or otherwise designated as
uncollectible;




          (d) which is owing by an Account Debtor for which more than 50% of the Accounts owing from
such Account Debtor and its Affiliates are ineligible pursuant to clause (c) above;




          (e) which is owing by an Account Debtor to the extent the aggregate amount of Accounts owing
from such Account Debtor and its Affiliates to the Credit Parties exceeds 20% (or 30% in respect of
Ford Motor Company (including any of its affiliates and subsidiaries) and 25% in respect of
Chrysler LLC (including any of its affiliates and subsidiaries)) of the sum of the aggregate
Eligible Receivables;




          (f) with respect to which any covenant, representation, or warranty contained in this
Agreement or in the Pledge and Security Agreement has been breached or is not true;




          (g) which (i) does not arise from the sale of goods or performance of services in the ordinary
course of business, (ii) is not evidenced by an invoice or other documentation reasonably
satisfactory to Administrative Agent which has been sent to the Account Debtor, (iii) represents a
progress billing, (iv) is contingent upon Company’s or applicable Guarantor’s completion of any
further performance, (v) represents a sale on a bill-and-hold, guaranteed sale, sale-and-return,
sale on approval, consignment, cash-on-delivery or any other repurchase or return basis or (vi)
relates to payments of interest;




          (h) with respect to which any check or other instrument of payment has been returned
uncollected for any reason;




          (i) which is owed by an Account Debtor which currently (i) has applied for, suffered, or
consented to the appointment of any receiver, custodian, trustee, or liquidator of its assets, (ii)
has had possession of all or a material part of its property taken by any receiver, custodian,
trustee or liquidator, (iii) filed, or had filed against it, any request or petition for
liquidation, reorganization, arrangement, adjustment of debts, adjudication as bankrupt,
winding-up, or voluntary or involuntary case under any state or federal bankruptcy laws (other than
post-petition Accounts of (i) Delphi Corporation in an aggregate amount not to exceed $3,500,000
and (ii) any other Account Debtor that is a debtor-in-possession under the Bankruptcy Code and
reasonably acceptable to Administrative Agent), (iv) has admitted in writing its inability, or is
generally unable to, pay its debts as they become due, (v) become insolvent, or (vi) ceased
operation of its business;




          (j) which is owed by an Account Debtor which (i) does not maintain its chief executive office
or principal office in the U.S., Canada (excluding the provinces of Quebec, Newfoundland, Nunavut
and the Northwest Territories) or (ii) is not organized under applicable law of the U.S., or any
state of the U.S., Canada (excluding the provinces of Quebec, Newfoundland, Nunavut and the
Northwest Territories), unless, in either case, such Account is backed by a letter of credit
reasonably acceptable to Administrative Agent which is in the possession of, has been assigned to
and is directly drawable by Collateral Agent;




          (k) which is owed in any currency other than Dollars, Canadian Dollars or Mexican Pesos
(provided, that, for the avoidance of doubt, the Account Debtor shall be required to be organized
under applicable law of the U.S. or any state of the U.S.;




16









 








          (l) which is owed by (i) the government (or any department, agency, public corporation, or
instrumentality thereof) of any country, state, province or municipality other than the U.S.
federal government unless such Account is backed by a letter of credit acceptable to Administrative
Agent which is in the possession of Collateral Agent, or (ii) the federal government of the U.S.,
or any department, agency, public corporation, or instrumentality thereof, unless the Federal
Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727 et seq. and 41
U.S.C. § 15 et seq.), and any other steps necessary to perfect the Lien of
Collateral Agent in such Account have been complied with to Administrative Agent’s reasonable
satisfaction;




          (m) which is owed by any Affiliate, Subsidiary, employee, officer, director, agent or
stockholder of any Credit Party;




          (n) which, for any Account Debtor, exceeds a credit limit determined by Company, to the extent
of such excess;




          (o) where the Account Debtor (i) is a creditor of Company or any Guarantor, (ii) has or has
asserted a right of set-off against Company or any Guarantor (unless such Account Debtor has
entered into a written agreement reasonably acceptable to Administrative Agent to waive such
set-off rights) or (iii) has disputed its liability (whether by chargeback or otherwise) or made
any asserted or unasserted claim with respect to the Account or any other Account of Company or any
Guarantor which has not been resolved, in each case, without duplication, to the extent of the
amount owed by such Company or applicable Guarantor to the Account Debtor, but only to the extent
of the amount of such actual or asserted right of set-off, or the amount of such dispute claim, or
the amount of such security, deposit, progress payment, retainage or other similar advance made by
or for the benefit of an Account Debtor, as the case may be;




          (p) which is evidenced by any promissory note, chattel paper, or instrument;




          (q) which is owed by an Account Debtor located in any jurisdiction which requires filing of a
“Notice of Business Activities Report” or other similar report in order to permit Company or
applicable Guarantor to seek judicial enforcement in such jurisdiction of payment of such Account,
unless Company or such Guarantor has filed such report or qualified to do business in such
jurisdiction;




          (r) with respect to which Company or applicable Guarantor has made any agreement with the
Account Debtor for any reduction thereof, other than discounts and adjustments given in the
ordinary course of business, or any Account which was partially paid and Company or applicable
Guarantor created a new receivable for the unpaid portion of such Account;




          (s) which does not comply in all material respects with the requirements of all applicable
laws and regulations, whether Federal, state or local, including without limitation the Federal
Consumer Credit Protection Act, the Federal Truth in Lending Act and Regulation Z of the Board;




          (t) which is for goods that have been sold under a purchase order or pursuant to the terms of
a contract or other agreement or understanding (written or oral) that indicates or purports that
any Person other than Company or applicable Guarantor (or, upon consummation of such sale, the
Account Debtor to whom such goods were sold) has or has had an ownership interest in such goods, or
which indicates any party other than Company or applicable Guarantor as payee or remittance party;




          (u) which was created on cash on delivery terms;




17









 








          (v) which is a non-trade Account (except for an Account which represents a sale of tooling or
prototypes that have been approved in writing and accepted by the applicable Account Debtor);




          (w) which is an extended terms account, which is due and payable more than 90 days from the
original date of invoice;




          (x) which Administrative Agent determines in its commercially reasonable credit judgment
exercised in good faith may not be paid by reason of the Account Debtor’s inability to pay or which
Administrative Agent otherwise determines in its commercially reasonable credit judgment exercised
in good faith is unacceptable; or




          (y) with respect to which Administrative Agent has not completed, and is reasonably satisfied
with the results of, a field examination.




          In the event that an Account which was previously an Eligible Receivable ceases to be an
Eligible Receivable hereunder, Company shall exclude such Account from Eligible Receivables on, and
at the time of submission to Administrative Agent of, the next Borrowing Base Certificate. In
determining the amount of the Eligible Receivable, the face amount of an Account shall be reduced
by, without duplication and to the extent such reduction is not reflected in such face amount, (i)
the amount of all accrued and actual discounts, claims, credits or credits pending, promotional
program allowances, price adjustments, finance charges or other allowances (including any amount
that Company or applicable Guarantor is obligated to rebate to an Account Debtor pursuant to the
terms of any agreement or understanding (written or oral) and (ii) the aggregate amount of all cash
received in respect of such Account but not yet applied by Company or a Guarantor to reduce the
amount of such Account. In determining the aggregate amount from the same Account Debtor that is
unpaid more than 90 days (or 105 days, if applicable) from the date of invoice or more than 60 days
from the due date pursuant to clause (c) above, there shall be excluded the amount of any net
credit balances relating to Accounts due from an Account Debtor with invoice dates more than 90
days (or 105 days, if applicable) from the date of invoice or more than 60 days from the due date.




          “Employee Benefit Plan” means, in respect of any Credit Party, any “employee benefit plan” as
defined in Section 3(3) of ERISA which is, in the case of any plan subject to Title IV of ERISA,
sponsored, maintained or contributed to by, or required to be contributed by, Parent, any of its
Subsidiaries or any of their respective ERISA Affiliates.




          “Entitlement Holder” has the meaning given such term in the UCC.




          “Entitlement Order” has the meaning given such term in the UCC.




          “Environmental Claim” means any investigation, notice, notice of violation, claim, action,
suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise),
by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with
any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous
Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any
actual or alleged damage, injury, threat or harm to health, safety, natural resources or the
environment.




          “Environmental Laws” means any and all current or future foreign or domestic, federal or state
(or any subdivision of either of them), statutes, ordinances, orders, rules, regulations,
judgments, standards, orders-in-council, directives, consents, decrees, Governmental
Authorizations, or any other applicable requirements of Governmental Authorities relating to
(i) environmental matters, including


18









 







those relating to any Hazardous Materials Activity; (ii) the generation, use, storage,
transportation or disposal of Hazardous Materials; or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or animal health or welfare, or of
the environment or natural resources (including ambient air, surface water, ground water, wetlands,
land surface or subsurface strata) in any manner applicable to Parent or any of its Subsidiaries or
any Facility.




          “Equipment” has the meaning assigned to such term in the Pledge and Security Agreement.




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




          “ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a
controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is
a member of a group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an
affiliated service group within the meaning of Sections 414(m) or 414(o) of the Internal Revenue
Code of which that Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member. Any former ERISA Affiliate of Parent or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of Parent or any such Subsidiary
within the meaning of this definition with respect to the period such entity was an ERISA Affiliate
of Parent or such Subsidiary and with respect to liabilities arising after such period for which
Parent or such Subsidiary could be liable under the Internal Revenue Code or ERISA.




          “ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan (excluding those for which the
provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet
the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code)
or the failure to make by its due date a required installment under Section 430(j) of the Internal
Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by Parent, any of its Subsidiaries or
any of their respective ERISA Affiliates from any Pension Plan with two or more contributing
sponsors or the termination of any such Pension Plan resulting in liability to Parent, any of its
Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v)
the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any
event or condition which could reasonably be expected to constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the
imposition of liability on Parent, any of its Subsidiaries or any of their respective ERISA
Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section
4212(c) of ERISA; (vii) the withdrawal of Parent, any of its Subsidiaries or any of their
respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections
4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor,
or the receipt by Parent, any of its Subsidiaries or any of their respective ERISA Affiliates of
notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section
4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or
4042 of ERISA; (viii) the occurrence of an act or omission which could reasonably be expected to
give rise to the imposition on Parent, any of its Subsidiaries or any of their respective ERISA
Affiliates of material fines, material penalties, material taxes or related material


19









 







charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c),
(i) or (l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of
a material claim (other than routine claims for benefits) against any Employee Benefit Plan other
than a Multiemployer Plan or the assets thereof, or against Parent, any of its Subsidiaries or any
of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (x) receipt from
the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee
Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify
under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any
Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue
Code; or (xi) the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan.




          “European AR Factoring Facilities” means (i) that certain Multi Countries Factoring Solution
Framework Agreement, dated June 27, 2008 by and among Dura Holding Germany GmbH, Dura Automotive
Body & Glass Systems GmbH, Dura Automotive CZ, k.s., Dura Automotive Body & Glass Systems
Components s.r.o. and other Foreign Subsidiaries party thereto and Coface Finanz GmbH, (ii) that
certain Factoring Agreement, dated June 20, 2008, by and between Dura Automotive Systems SAS and GE
Factofrance, and (iii) (A) that certain Framework Agreement on Assignment of Receivables for
Consideration by and between Dura Automotive Systems CZ, s.r.o. and ABN AMRO Bank N.V., and (B)
that certain Framework Agreement on Assignment of Receivables by and between Dura Automotive
Romania SRL and ABN AMRO Bank Romania SA, with respect to this clause (iii), each of which may be
entered into after the Closing Date pursuant to documentation reasonably acceptable to the
Administrative Agent, and in the case of each of (i), (ii) and (iii), together with any agreements,
covenants and undertakings related thereto by the parties thereof.




          “European First Lien Term Loan Agreement” means that certain Credit Agreement, dated as of
June 25, 2008, among German Parent, DURA Holding Germany GmbH, certain other Foreign Subsidiaries
that are not Credit Parties, the lenders party thereto and Deutsche Bank Trust Company Americas, as
administrative agent and collateral agent.




          “European Intercreditor Agreement” means an Intercreditor Agreement substantially in the form
of Exhibit I-2, as it may be amended, supplemented, or otherwise modified from time to time.




          “Event of Default” means each of the conditions or events set forth in Section 8.1.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and
any successor statute.




          “Excess Availability” means, at any time, an amount equal to the sum of (a) the Available
Credit at such time plus (b) unrestricted Cash and Cash Equivalents of each Credit Party
which is subject to a Lien of Collateral Agent.




          “Existing DIP Agreements” means the Existing DIP Revolving Credit Agreement and the Existing
DIP Term Loan Agreement.




          “Existing DIP Revolving Credit Agreement” means the Senior Secured Super-Priority Debtor In
Possession Revolving Credit and Guaranty Agreement, dated as of November 30, 2006, by and among
Company, Old Dura, the Subsidiaries of Old Dura and Company party thereto, as guarantors, the
lenders party thereto, and General Electric Capital Corporation, as administrative agent and
collateral agent, as such agreement has been amended, modified or supplemented.




20









 







          “Existing DIP Term Loan Agreement” means the Senior Secured Super-Priority Debtor In
Possession Term Loan and Guaranty Agreement, dated as of January 30, 2008, among Company, the
guarantors party thereto, Ableco Finance LLC, as administrative agent, collateral agent,
syndication agent and documentation agent and the lenders party thereto, as such agreement has been
amended, modified or supplemented.




          “Existing Joint Venture” means each Joint Venture listed on Schedule 1.1(c) hereto.




          “Existing Letters of Credit” means those Letters of Credit listed on Schedule 1.1(b) hereto.




          “Facility” means any real property (including all buildings, fixtures or other improvements
located thereon) now, hereafter or heretofore owned, leased, operated or used by Parent or any of
its Subsidiaries or any of their respective predecessors or Affiliates.




          “Fair Share Contribution Amount” as defined in Section 7.2.




          “Fair Share” as defined in Section 7.2.




          “Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal,
rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day; provided, (i) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to Administrative Agent, in its capacity as a Lender, on such day on such
transactions as determined by Administrative Agent.




          “Financial Asset” has the meaning given to such term in the UCC.




          “Financial Officer Certification” means, with respect to the financial statements for which
such certification is required, the certification of the chief executive officer, the chief
financial officer or treasurer or assistant treasurer of Parent that such financial statements
fairly present, in all material respects, the financial condition of Parent and its Subsidiaries as
at the dates indicated and the results of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end adjustments and the absence
of footnote disclosure.




          “Fixed Asset Cap” means $15,000,000; provided, that, beginning January 1, 2009 and on the
first day of each month thereafter, such amount shall be reduced by $125,000 each month.




          “Fiscal Quarter” means a fiscal quarter of any Fiscal Year.




          “Fiscal Year” means the fiscal year of Company and its Subsidiaries ending on December 31 of
each calendar year.




          “Flood Hazard Property” means any Real Estate Asset subject to a Mortgage in favor of
Collateral Agent, for the benefit of the Secured Parties, and located in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide hazards.




21









 








          “Foreign Collateral Agreement” means each pledge agreement or similar instrument, in form and
substance reasonably satisfactory to the Administrative Agent and Collateral Agent, executed by any
Credit Party on the Closing Date or from time to time thereafter in accordance with Section 5.10
with respect to the Capital Stock of any Foreign Subsidiary, as such Foreign Collateral Agreement
may be amended, restated, supplemented or otherwise modified from time to time.




          “Foreign Subsidiary” means any Subsidiary of Company that is not a Domestic Subsidiary (other
than any Existing Joint Venture).




          “Funding Default” as defined in Section 2.22.




          “Funding Guarantors” as defined in Section 7.2.




          “Funding Notice” means a notice substantially in the form of Exhibit A-1.




          “GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2,
generally accepted accounting principles in the United States in effect as of the date of
determination thereof.




          “GE Capital” as defined in the preamble hereto.




          “General Intangible” as defined in the UCC.




          “German Parent” means Dura European Holding LLC & Co. KG, a limited liability company
organized under the laws of the Federal Republic of Germany.




          “Governmental Authority” means any federal, state, municipal, national or other government,
governmental department, commission, board, bureau, court, agency, tribunal or instrumentality or
political subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory, governmental or administrative functions of or pertaining to any government or any
court or central bank, in each case whether associated with a State of the United States, the
United States, or a foreign entity or government.




          “Governmental Authorization” means any permit, license, authorization, plan, directive,
consent order or consent decree of or from any Governmental Authority.




          “Grantor” means a “Grantor” as defined in the Pledge and Security Agreement.




          “Guaranteed Obligations” as defined in Section 7.1.




          “Guarantor” means, on the date of this Agreement, Parent, each other Holding Company and each
Domestic Subsidiary (other than Company) listed on the signature pages of this Agreement and
thereafter each Domestic Subsidiary that executes a Counterpart Agreement or such other accession
agreement to this Agreement as a Guarantor accepted and agreed by, and in form and substance
reasonably satisfactory to, Administrative Agent.




          “Guaranty” means the guaranty of each Guarantor set forth in Section 7.




          “Hazardous Materials” means any chemical, material, substance, or exposure to, which is
prohibited, limited or regulated by any Governmental Authority because of its hazardous, dangerous
or


22









 







deleterious properties or which may or could pose a hazard to the health and safety of the
owners, occupants or any Persons in the vicinity of any Facility or to the indoor or outdoor
environment.




          “Hazardous Materials Activity” means any activity, event or occurrence involving any Hazardous
Materials, including the use, manufacture, possession, storage, holding, presence, existence,
location, Release, threatened Release, discharge, placement, generation, transportation,
processing, construction, treatment, abatement, removal, remediation, disposal, disposition or
handling of any Hazardous Materials, and any corrective action or response action with respect to
any of the foregoing.




          “Hedge Agreement” means an Interest Rate Agreement, a Currency Agreement or an option
contract, commodities future or option contract for materials used in the ordinary course of
business, entered into with a Lender Counterparty in order to satisfy the requirements of this
Agreement or otherwise in the ordinary course of Company’s or any of its Subsidiaries’ businesses.




          “Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from
time to time may be contracted for, charged, or received under the laws applicable to any Lender
which are presently in effect or, to the extent allowed by law, under such applicable laws which
may hereafter be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.




          “Historical Financial Statements” means as of the Closing Date, (i) (A) the audited financial
statements of Old Dura and its Subsidiaries for the Fiscal Year ended December 31, 2006, and (B)
the unaudited financial statements of Old Dura and its Subsidiaries for the Fiscal Year ended
December 31, 2007, in each case, consisting of balance sheets and the related consolidated
statements of income, stockholders’ equity and cash flows for such Fiscal Years, and (ii) the
unaudited financial statements of Old Dura and its Subsidiaries as at the most recently ended
month, consisting of a balance sheet and the related consolidated statements of income,
stockholders’ equity and cash flows for the applicable period ending on such date, and, in the case
of clauses (i) and (ii), certified by the chief financial officer of Company that they fairly
present, in all material respects, the financial condition of Old Dura and its Subsidiaries as at
the dates indicated and the results of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end adjustments.




          “Holding Companies” means, collectively, each of Parent, New Dura Holdco, Inc., a Delaware
corporation, and New Dura Opco, Inc., a Delaware corporation.




          “Immaterial Subsidiary” means any Subsidiary of Parent that is not a Credit Party which owns
assets having a market value, and having gross revenues for its most recently ended fiscal year, in
each case not in excess of (i) $2,000,000 individually and (ii) $5,000,000 in the aggregate for all
such Subsidiaries.




          “Increased-Cost Lenders” as defined in Section 2.23.




          “Indebtedness” as applied to any Person, means, without duplication, (i) all indebtedness for
borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly
classified as a liability on a balance sheet in conformity with GAAP; (iii) notes payable and
drafts accepted representing extensions of credit whether or not representing obligations for
borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of
property or services (excluding any such obligations incurred under ERISA and other than trade
payables and accrued expenses, in each case in the ordinary course of business), which purchase
price is  due more than six months from the date of incurrence of the obligation in respect
thereof; (v) all indebtedness secured by


23









 







any Lien on any property or asset owned by that Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that
Person (provided, the amount of Indebtedness hereunder shall be limited to the lesser of the
aggregate unpaid amount of such Indebtedness and the fair market value of the property (or assets
subject to such Lien); (vi) the face amount of any letter of credit issued for the account of that
Person or as to which that Person is otherwise liable for reimbursement of drawings; (vii) the
direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with recourse by such Person of
the Indebtedness of another; (viii) any obligation of such Person the primary purpose or intent of
which is to provide assurance to an obligee that the obligation of the obligor thereof will be paid
or discharged, or any agreement relating thereto will be complied with, or the holders thereof will
be protected (in whole or in part) against loss in respect thereof; (ix) any liability of such
Person for an obligation of another through any agreement (contingent or otherwise) (a) to
purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide
funds for the payment or discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise) or (b) to maintain the solvency or any balance
sheet item, level of income or financial condition of another if, in the case of any agreement
described under subclauses (a) or (b) of this clause (ix), the primary purpose or intent thereof is
as described in clause (viii) above; and (x) all net obligations of such Person (which shall be
determined on a net basis to the extent such obligations are subject to an effective netting
arrangement) in respect of any exchange traded or over the counter derivative transaction,
including, without limitation, any Interest Rate Agreement and Currency Agreement, whether entered
into for hedging or speculative purposes.




          “Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses,
damages (including natural resource damages), penalties, claims (including Environmental Claims),
actions, judgments, suits, costs (including the reasonable costs of any investigation, study,
sampling, testing, abatement, cleanup, removal, remediation or other response action necessary to
remove, remediate, clean up or abate any Hazardous Materials Activity), reasonable, out-of-pocket
expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and
disbursements of counsel for Indemnitees in connection with any investigative, administrative or
judicial proceeding commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any reasonable fees or expenses incurred
by Indemnitees in enforcing this indemnity), whether direct, indirect or consequential and whether
based on any federal, state or foreign laws, statutes, rules or regulations (including securities
and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted
against any such Indemnitee, in any manner relating to or arising out of (i) this Agreement or the
other Credit Documents or the transactions contemplated hereby or thereby (including the Lenders’
agreement to make Credit Extensions or the use or intended use of the proceeds thereof, or any
enforcement of any of the Credit Documents (including any sale of, collection from, or other
realization upon any of the Collateral or the enforcement of the Guaranty)); (ii) the statements
contained in the commitment letter delivered by any Lender to Company with respect to the
transactions contemplated by this Agreement; or (iii) any Environmental Claim or any Hazardous
Materials Activity relating to or arising from, directly or indirectly, any past or present
activity, operation, land ownership, or practice of Parent or any of its Subsidiaries.




          “Indemnitee” as defined in Section 10.3.




          “Intercreditor Agreement” means an Intercreditor Agreement substantially in the form of
Exhibit I-1, as it may be amended, supplemented, or otherwise modified from time to time.




24









 








          “Interest Payment Date” means with respect to (i) any Base Rate Loan, the last day of each
calendar month, commencing on the first such date to occur after the Closing Date, if such date is
a Business Day, otherwise the immediately preceding Business Day, and the final maturity date of
such Loan; and (ii) any LIBOR Loan, the last day of each LIBOR Period applicable to such Loan.




          “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedging agreement or other similar agreement or
arrangement, each of which is for the purpose of hedging the interest rate exposure associated with
Company’s and its Subsidiaries’ operations and not for speculative purposes.




          “Interest Rate Determination Date” means, with respect to any LIBOR Period, the date that is
two Business Days prior to the first day of such LIBOR Period.




          “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof
and from time to time hereafter, and any successor statute.




          “Inventory” has the meaning assigned to such term in the Pledge and Security Agreement.




          “Inventory Cap” means $27,500,000.




          “Investment” means (i) any direct or indirect purchase or other acquisition by Parent or any
of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person
(other than a Guarantor); (ii) any direct or indirect redemption, retirement, purchase or other
acquisition for value, by any Subsidiary of Parent from any Person (other than any Guarantor), of
any Capital Stock of such Person; and (iii) any direct or indirect loan, advance (other than
advances to employees for moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contributions by Parent or any of its
Subsidiaries to any other Person (other than Parent or any Guarantor). The amount of any
Investment shall be the original cost of such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment.




          “Issuing Bank” means any financial institution party hereto as Issuing Bank, together with its
permitted successors and assigns in such capacity, including any financial institution which agrees
to become an Issuing Bank after the date hereof with the agreement of Administrative Agent and
Company.




          “JCI” means, collectively, Johnson Controls Systems, Inc., its affiliates and subsidiaries,
and Bridgewater Interiors.




          “JCI Agreements” means collectively, (i) that certain Modification Agreement by and among the
Debtors and JCI, executed on September 21, 2007 and October 3, 2007 (as modified by that certain
Order Approving JCI Agreements entered by the Bankruptcy Court on November 9, 2007 (the “JCI
Order”), the “Modification Agreement”) and (ii) that certain Access Agreement by and among the
Debtors and JCI, executed on September 21, 2007 and October 3, 2007 (as modified by the JCI Order,
the “Access Agreement”).




          “Joint Venture” means a joint venture, partnership or other similar arrangement, whether in
corporate, partnership or other legal form; provided, in no event shall any corporate
Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.




25









 








          “Landlord Personal Property Collateral Access Agreement” means a Landlord Waiver and Consent
Agreement substantially in the form of Exhibit K with such amendments or modifications as may be
reasonably approved by Collateral Agent and the other parties thereto.




          “Lender” means each financial institution listed on the signature pages hereto as a Lender,
and any other Person that becomes a party hereto pursuant to an Assignment Agreement.




          “Lender Counterparty” means each Lender or any Affiliate of a Lender counterparty to a Hedge
Agreement (including any Person who is a Lender (and any Affiliate thereof) as of the Closing Date
but subsequently, whether before or after entering into a Hedge Agreement, ceases to be a Lender)
including, without limitation, each such Affiliate that enters into a joinder agreement with
Collateral Agent.




          “Letter of Credit” means a commercial or standby letter of credit issued or to be issued by
Issuing Bank pursuant to this Agreement and shall include the Existing Letters of Credit.




          “Letter of Credit Sublimit” means the lesser of (i) $25,000,000 and (ii) the aggregate unused
amount of the Revolving Commitments then in effect.




          “Letter of Credit Usage” means, as at any date of determination, the sum of (i) the
maximum aggregate amount which is, or at any time thereafter may become, available for drawing
under all Letters of Credit then outstanding (except to the extent cash collateralized, or
backstopped by a back to back letter of credit in form and substance and issued by an issuing bank
acceptable to Administrative Agent, in each case, at 105% of the face amount of such Letter of
Credit), and (ii) the aggregate amount of all drawings under Letters of Credit honored by Issuing
Bank and not theretofore reimbursed by or on behalf of Company.




          “LIBOR Loans” means a Loan or any portion thereof bearing interest by reference to the LIBOR
Rate.




          “LIBOR Period” means, in connection with a LIBOR Loan, an interest period of one, two or
three months as selected by Company in the applicable Funding Notice or Conversion/Continuation
Notice, (i) initially, commencing on the Credit Date or Conversion/Continuation Date thereof, as
the case may be; and (ii) thereafter, commencing on the day on which the immediately preceding
LIBOR Period expires; provided, (a) if a LIBOR Period would otherwise expire on a day that
is not a Business Day, such LIBOR Period shall expire on the next succeeding Business Day unless no
further Business Day occurs in such month, in which case such LIBOR Period shall expire on the
immediately preceding Business Day; (b) any LIBOR Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day in the calendar
month at the end of such LIBOR Period) shall, subject to clause (c) of this definition, end on the
last Business Day of a calendar month; and (c) no LIBOR Period with respect to any portion of the
Loans shall extend beyond the Maturity Date.




          “LIBOR Rate” means, for any Interest Rate Determination Date with respect to a LIBOR Period
for a LIBOR Loan, the rate per annum obtained by dividing (and rounding upward to the next whole
multiple of 1/16 of 1%) (i) (a) the rate per annum (rounded to the nearest 1/100 of 1%) equal to
the rate determined by Administrative Agent to be the offered rate which appears on Reuters Screen
LIBOR01 Page for deposits (for delivery on the first day of such period) with a term equivalent to
such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such
Interest Rate Determination Date, or (b) in the event the rate referenced in the preceding clause
(a) is not


26









 







available, the rate per annum (rounded to the nearest 1/100 of 1%) equal to the offered
quotation rate to first class banks in the London interbank market by major financial institutions
reasonably satisfactory to the Administrative Agent for deposits (for delivery on the first day of
the relevant period) in Dollars of amounts in same day funds comparable to the principal amount of
the applicable Loan of Administrative Agent, in its capacity as a Lender, for which the LIBOR Rate
is then being determined with maturities comparable to such period as of approximately 11:00 a.m.
(London, England time) on such Interest Rate Determination Date, by (ii) an amount equal to (a) one
minus (b) the Applicable Reserve Requirement.




          “Lien” means (i) any lien, mortgage, pledge, assignment, security interest, hypothecation,
deemed trust, charge or encumbrance of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, and any lease in the nature
thereof) and any option, trust or other preferential arrangement having the practical effect of any
of the foregoing and (ii) in the case of Securities, any purchase option, call or similar right of
a third party with respect to such Securities.




          “Loan” means any Revolving Loan or Swing Line Loan.




          “Margin Stock” as defined in Regulation U of the Board of Governors of the Federal Reserve
System as in effect from time to time.




          “Material Adverse Effect” means a material adverse effect on and/or material adverse
developments with respect to (i) the business, operations, properties, assets or financial
condition of (A) the Credit Parties taken as a whole and (B) Parent and its Subsidiaries taken as a
whole; (ii) the ability of the Credit Parties to fully and timely perform their Obligations; (iii)
the legality, validity, binding effect or enforceability against the Credit Party of the Credit
Documents to which they are a party; or (iv) the rights, remedies and benefits available to, or
conferred upon, the Agents, the Lenders and the other Secured Parties under the Credit Documents.




          “Material Contract” means any contract, agreement with respect to provision of parts for an
automobile model or other arrangement to which Parent or any of its Subsidiaries is a party (other
than the Credit Documents) for which breach, nonperformance, cancellation or failure to renew could
reasonably be expected to have a Material Adverse Effect.




          “Maturity Date” means the earliest to occur of (i) June 25, 2012, (ii) the date the Revolving
Commitments are permanently reduced to zero pursuant to Section 2.13 or Section 2.14, and (iii) the
date of the termination of the Revolving Commitments or acceleration of the Obligations pursuant to
Section 8.1.




          “Maximum Credit” means, at any time, the lesser of (i) the Revolving Commitments in effect at
such time and (ii) the Borrowing Base at such time.




          “Modification Agreement” as defined in the definition of JCI Agreements.




          “Mortgage” means any mortgage, deed of trust or other document, in form and substance
reasonably satisfactory to Collateral Agent, executed or required herein to be executed by any
Credit Party and granting a security interest over any Real Estate Asset owned in fee simple by the
Credit Parties in favor of the Collateral Agent as security for the Obligations.




          “Moody’s” means Moody’s Investor Services, Inc.




27









 








          “Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as
defined in Section 3(37) of ERISA and subject to ERISA.




          “NAIC” means The National Association of Insurance Commissioners, and any successor thereto.




          “Narrative Report” means, with respect to the financial statements for which such narrative
report is required, a narrative report describing the operations of Parent and its Subsidiaries in
the form prepared for presentation to senior management thereof for the applicable month, Fiscal
Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the
end of such period to which such financial statements relate.




          “Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) Cash
payments (including any Cash received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received) received by Parent or any of
its Subsidiaries from such Asset Sale, minus (ii) any bona fide costs, commissions, fees
and expenses incurred in connection with such Asset Sale, including (a) income, sale, use,
transaction, gains or other taxes paid or payable in connection with such Asset Sale, (b) payment
of the outstanding principal amount of, premium or penalty, if any, and interest on any
Indebtedness (other than the Loans) that is secured by a Lien on the stock or assets in question
and that is required to be repaid under the terms thereof as a result of such Asset Sale, (c)
pension, other post-employment benefit liabilities payable or reserved and any other reserves
established in accordance with GAAP for liabilities associated with such Asset Sale and (d) a
reasonable reserve for any indemnification payments (fixed or contingent) and normal course
post-closing adjustments attributable to seller’s indemnities and representations and warranties to
purchaser in respect of such Asset Sale undertaken by Parent or any of its Subsidiaries in
connection with such Asset Sale.




          “Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or
proceeds received by Parent or any of its Subsidiaries (a) under any casualty insurance policy in
respect of a covered loss thereunder or (b) as a result of the taking of any assets of Parent or
any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or
otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of
such a taking, minus (ii) the sum of (a) any actual costs incurred by Parent or any
of its Subsidiaries in connection with the adjustment or settlement of any claims of Parent or such
Subsidiary in respect thereof, and (b) any bona fide costs incurred in connection with any sale of
such assets as referred to in clause (i)(b) of this definition, including taxes paid or payable in
connection therewith.




          “Net Orderly Liquidation Value Percentage” means, the orderly liquidation value (net of costs
and expenses incurred in connection with liquidation) of inventory as a percentage of the cost of
such inventory, which percentage shall be determined by reference to the most recent inventory
appraisal approved by Administrative Agent (in its commercially reasonable credit judgment
exercised in good faith) and conducted by an independent appraiser reasonably satisfactory to
Administrative Agent.




          “Non-Consenting Lender” as defined in Section 2.23.




          “Nonpublic Information” means information which has not been disseminated in a manner making
it available to investors generally, within the meaning of Regulation FD.




          “Non-U.S. Lender” as defined in Section 2.20(c).




28









 








          “Note” means a promissory note in the form of either Exhibit B-1 or B-2, as applicable, as it
may be amended, supplemented or otherwise modified from time to time.




          “Notice” means a Funding Notice or a Conversion/Continuation Notice.




          “Obligations” means all obligations of every nature of each Credit Party under the Credit
Documents, including Letter of Credit Usage and obligations from time to time owed to the Agents
(including former Agents), the Lenders or any of them and Lender Counterparties, under any Credit
Document (including any Control Agreement), Hedge Agreement or Cash Management Document, whether
for principal, interest (including interest which, but for the filing of a petition in bankruptcy
with respect to such Credit Party, would have accrued on any Obligation, whether or not a claim is
allowed against such Credit Party for such interest in the related bankruptcy proceeding),
reimbursement of amounts drawn under Letters of Credit, payments for early termination of Hedge
Agreements, Cash Management Obligations, fees, expenses, indemnification or otherwise, including
all obligations to provide cash collateral for any Letter of Credit Usage.




          “Obligee Guarantor” as defined in Section 7.7.




          “Old Dura” shall have the meaning ascribed to it in the recitals hereto.




          “Organizational Documents” means (i) with respect to any corporation, its certificate or
articles of incorporation or organization, as amended, and its by-laws or memorandum and articles
of association (or equivalent), as amended, (ii) with respect to any limited partnership, its
certificate or declaration of limited partnership, as amended, and its partnership agreement, as
amended, (iii) with respect to any general partnership, its partnership agreement, as amended, and
(iv) with respect to any Domestic Subsidiary that is a limited liability company, its articles of
organization, as amended, and its operating agreement, as amended. In the event any term or
condition of this Agreement or any other Credit Document requires any Organizational Document to be
certified by a secretary of state or similar governmental official including an official of a
non-U.S. government, the reference to any such “Organizational Document” shall only be to a
document of a type customarily certified by such governmental official in such official’s relevant
jurisdiction.




          “Participant Register” shall have the meaning assigned to it in Section 10.6(h).




          “Patriot Act” shall have the meaning assigned to it in Section 4.23.




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




          “Pension Plan” means, in respect of any Credit Party, any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 of
ERISA.




          “Permitted Acquisition” means any acquisition by Company or any of its wholly-owned
Subsidiaries, whether by purchase, merger or otherwise, of all or substantially all of the assets
of, all of the Capital Stock of, or a business line or unit or a division of, any Person; provided,




          (a) immediately prior to, and after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing or would result therefrom;




29









 








          (b) all transactions in connection therewith shall be consummated, in all material respects,
in accordance with all applicable laws and in conformity with all material applicable Governmental
Authorizations;




          (c) in the case of the acquisition of Capital Stock, all of the Capital Stock (except for any
such Securities in the nature of directors’ qualifying shares required pursuant to applicable law
or other nominal shares required to be issued pursuant to applicable law) acquired or otherwise
issued by such Person or any newly formed Subsidiary of Company in connection with such acquisition
shall be owned 100% by Company or a Subsidiary Guarantor thereof, and Company shall have taken, or
caused to be taken, as of the date such Person becomes a Subsidiary of Company, each of the actions
set forth in Sections 5.10 and/or 5.11, as applicable;




          (d) with respect to any Permitted Acquisition by Company or any of its Domestic Subsidiaries,
the Credit Parties shall be in compliance with the financial covenants set forth in Section 6.8 on
a pro forma basis after giving effect to such acquisition as of the last day of the Fiscal Quarter
most recently ended;




          (e) with respect to any Permitted Acquisition by Company or any of its Domestic Subsidiaries,
Company shall have delivered to Administrative Agent, at least thirty (30) days prior to such
proposed acquisition, (i) a Compliance Certificate evidencing compliance with Section 6.8 as
required under clause (d) above and (ii) all other relevant financial information with respect to
such acquired assets, including the aggregate Acquisition Consideration for such acquisition and
any other information required to demonstrate compliance with Section 6.8, (iii) a copy of the
purchase agreement related to the proposed Permitted Acquisition (and any related documents
reasonably requested by Administrative Agent) and (iv) quarterly and annual financial statements of
the Person whose Capital Stock or assets are being acquired for the twelve month (12) month period
immediately prior to such proposed Permitted Acquisition, including any audited financial
statements that are available;




          (f) any Person or assets or division as acquired in accordance herewith shall be in same
business or lines of business in which Company and/or its Subsidiaries are engaged as of the
Closing Date (or reasonably related, ancillary, corollary or complementary businesses thereto);




          (g) such acquisition shall be consensual and shall have been approved by the target’s board of
directors; and




          (h) with respect to any Permitted Acquisition by Company or any of its Domestic Subsidiaries,
(A) the average of daily Excess Availability for the 90 days prior to the closing of any such
acquisition giving pro forma effect to the Acquisition Consideration shall be not less than $50
million and (B) the projected average of daily Excess Availability for the 90 days after the
closing of any such acquisition giving pro forma effect to the Acquisition Consideration shall be
not less than $50 million based on projections presented by Company to the Administrative Agent and
reasonably satisfactory to the Administrative Agent.




          “Permitted Holders” means each of Pacificor, LLC, Bennett Management Corporation, Wilfrid
Aubrey LLC, DuPont Capital Management, Frontier Ridge Investments, GSO Capital Partners LP, GSO
Domestic Capital Funding (Luxembourg) Sarl, Blackstone Distressed Securities Fund (Luxembourg) Sarl
and their respective Affiliates.




          “Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.




30









 








          “Permitted Refinancing” means Indebtedness constituting a refinancing, renewal, replacement or
extension of other Indebtedness that (a) has an aggregate outstanding principal amount not greater
than the aggregate principal amount of such other Indebtedness outstanding at the time of such
refinancing or extension plus any fees, expenses and premiums incurred in connection with such
refinancing, renewal, replacement or extension, (b) has a weighted average maturity (measured as of
the date of such refinancing or extension) and maturity no shorter than that of such other
Indebtedness, (c) is not secured by any property or any Lien other than those securing such other
Indebtedness, (d) has the same obligors thereunder as under such other Indebtedness, (e) is
otherwise on terms (other than interest rate (which shall be consistent with then applicable market
interest rates)) no less favorable, taken as a whole, to the Credit Parties than those of such
other Indebtedness and (f) if such other Indebtedness to be refinanced, renewed, replaced or
extended (or any Lien securing such other Indebtedness) is subordinated to the Obligations, such
refinanced, renewed, replaced or extended Indebtedness (and any Lien securing such refinanced,
renewed, replaced or extended Indebtedness) is subordinated to the Obligations to at least the same
extent.




          “Permitted Restructuring Transactions” means an investment or loan by the Credit Parties to
one or more Subsidiaries of Parent organized in the United Kingdom in an amount not exceeding
15,000,000 British Pounds which amount shall be repatriated in full to the Credit Parties on the
same day such investment or loan is made.




          “Person” means and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships, unlimited companies,
joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies,
land trusts, business trusts or other organizations, whether or not legal entities, and
Governmental Authorities.




          “Plan” shall have the meaning ascribed to it in the recitals to the Agreement.




          “Platform” shall have the meaning assigned to it in Section 5.1(l).




          “Pledge and Security Agreement” means the Pledge and Security Agreement to be executed by
Company and each Guarantor substantially in the form of Exhibit J, as it may be amended, restated,
supplemented or otherwise modified from time to time.




          “Prime Rate” means the rate of interest quoted in The Wall Street Journal, Money Rates Section
as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 75% of
the nation’s thirty (30) largest banks), as in effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate actually charged to any
customer. An Agent or any other Lender may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.




          “Principal Office” means, for each Agent, Swing Line Lender and Issuing Bank, the “Principal
Office” as set forth on Appendix B, or such other office as such Person may from time to time
designate in writing to Company, Administrative Agent and each Lender. With respect to any
payments or transfers to be made at Administrative Agent’s Principal Office such payments or
transfers shall be made to the account specified for Administrative Agent on Appendix B.




          “Proposed Joint Venture” means a Domestic Subsidiary or Foreign Subsidiary organized as a
Joint Venture of which the Credit Parties own less than 75% of the Capital Stock.




31









 








          “Pro Rata Share” means with respect to each Lender, the percentage obtained by dividing (A) an
amount equal to the sum of the Revolving Exposure of that Lender by (B) an amount equal to the sum
of the aggregate Revolving Exposure of all Lenders.




          “Protective Advances” means all advances, made at any time that any of conditions precedent in
Section 3.2(a) is not satisfied, that Administrative Agent, in its sole discretion, deems necessary
or desirable to preserve or protect the Collateral or any portion thereof or to enhance the
likelihood, or maximize the amount, of repayment of the Obligations.




          “Real Estate Asset” means, at any time of determination, any (i) real property owned in fee
simple by any Credit Party and (ii) any leasehold interest in real property held by any Credit
Party.




          “Refunded Swing Line Loans” as defined in Section 2.3(b)(iv).




          “Register” as defined in Section 2.7(b).




          “Regulation D” means Regulation D of the Board of Governors, as in effect from time to time.




          “Regulation FD” means Regulation FD as promulgated by the US Securities and Exchange
Commission under the Securities Act and Exchange Act as in effect from time to time.




          “Reimbursement Date” as defined in Section 2.4(d).




          “Related Fund” means, with respect to any Lender that is an investment fund, any other
investment fund that originates or invests in commercial loans and that is managed or advised by
the same investment advisor as such Lender or by an Affiliate of such investment advisor.




          “Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material
into the indoor or outdoor environment (including the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Material), including the movement
of any Hazardous Material through the air, soil, surface water or groundwater.




          “Replacement Lender” as defined in Section 2.23.




          “Requisite Lenders” means one or more Lenders (other than Defaulting Lenders) having or
holding Revolving Exposure and representing more than 50% of the aggregate Revolving Exposure of
all Lenders; provided, that, Requisite Lenders shall, in any event, consist of at least two (2)
Lenders.




          “Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of stock of any Holding Company or Company now or hereafter
outstanding, except a dividend payable solely in shares of Capital Stock to the holders of that
class; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of stock of any Holding
Company or Company now or hereafter outstanding; (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire shares of any class of
stock of any Holding Company or Company now or hereafter outstanding; and (iv) any payment or
prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement,
defeasance (including in substance or legal


32









 







defeasance), sinking fund or similar payment with respect to, any Subordinated Indebtedness or
Indebtedness outstanding under the Second Lien Term Loan Agreement.




          “Revolving Commitment” means the commitment of a Lender to make or otherwise fund any
Revolving Loan and to acquire participations in Letters of Credit and Swing Line Loans hereunder,
and “Revolving Commitments” means such commitments of all Lenders in the aggregate. The amount of
each Lender’s Revolving Commitment, if any, is set forth on Appendix A or in the applicable
Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions
hereof. The aggregate amount of the Revolving Commitments as of the Closing Date is $110,000,000.




          “Revolving Commitment Period” means the period from the Closing Date to but excluding the
Maturity Date.




          “Revolving Exposure” means, with respect to any Lender as of any date of determination,
(i) prior to the termination of the Commitments, that Lender’s Commitment; and (ii) after the
termination of the Commitments, the sum of (a) the aggregate outstanding principal amount of the
Loans of that Lender, (b) in the case of Issuing Bank, the aggregate Letter of Credit Usage in
respect of all Letters of Credit issued by that Lender (net of any participations by Lenders in
such Letters of Credit), (c) the aggregate amount of all participations by that Lender in any
outstanding Letters of Credit or any unreimbursed drawing under any Letter of Credit, (d) in the
case of Swing Line Lender, the aggregate outstanding principal amount of all Swing Line Loans (net
of any participations therein by other Lenders), and (e) the aggregate amount of all participations
therein by that Lender in any outstanding Swing Line Loans.




          “Revolving Loan” means a Loan made by the Lenders to Company pursuant to Section 2.2 or a
Protective Advance made by Administrative Agent, on behalf of the Lenders, pursuant to Section 9.8.




          “Revolving Note” means a promissory note in the form of Exhibit B-1, as it may be amended,
supplemented or otherwise modified from time to time.




          “S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation.




          “Sale and Lease-Back Transaction” as defined in Section 6.11.




          “Second Lien Term Loan Agreement” means that certain Second Lien Term Loan Agreement, dated as
of June 27, 2008, among Company, Parent, the Guarantors, the lenders party thereto and Wilmington
Trust Company, as administrative agent and collateral agent.




          “Secured Parties” means the Agents, Lenders, the Swing Line Lender, the Issuing Banks and the
Lender Counterparties and shall include, without limitation, all former Agents, Lenders, Swing Line
Lenders, Issuing Banks and Lender Counterparties to the extent that any Obligations owing to such
Persons were incurred while such Persons were Agents, Lenders, Swing Line Lenders, Issuing Banks or
Lender Counterparties and such Obligations have not been paid or satisfied in full.




          “Securities” means any stock, shares, partnership interests, voting trust certificates, units,
certificates of interest or participation in any profit-sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible,


33









 







subordinated or otherwise, or in general any instruments commonly known as “securities” or any
certificates of interest, shares or participations in temporary or interim certificates for the
purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.




          “Securities Account” has the meaning given to such term in the UCC.




          “Securities Account Control Agreement” has the meaning specified in the Pledge and Security
Agreement.




          “Securities Act” means the Securities Act of 1933, as amended from time to time, and any
successor statute.




          “Solvent” means, with respect to any Person as of any date of determination, that, as of such
date, (a) the value of the assets (on a going concern basis) of such Person (both at fair value and
present fair saleable value) is greater than the total amount of liabilities (including contingent
liabilities) of such Person, (b) such Person is able to pay all liabilities of such Person as such
liabilities mature in the ordinary course of business and (c) such Person and its Subsidiaries on a
consolidated basis does not have unreasonably small capital in respect of the business or
transaction such Person is engaged. In computing the amount of contingent liabilities at any time,
such liabilities shall be computed at the amount that, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an actual or
matured liability.




          “Subordinated Indebtedness” means any Indebtedness that is subordinated to the payment in full
of the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent.




          “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof; provided, in determining the percentage of ownership
interests of any Person controlled by another Person, no ownership interest in the nature of a
“qualifying share” of the former Person shall be deemed to be outstanding.




          “Swing Line Commitment” means the commitment of Swing Line Lender to make Swing Line Loans
pursuant to Section 2.3.




          “Swing Line Lender” means GE Capital, in its capacity as Swing Line Lender hereunder, together
with its permitted successors and assigns in such capacity.




          “Swing Line Loan” means a Loan made by Swing Line Lender to Company pursuant to Section 2.3.




          “Swing Line Note” means a promissory note in the form of Exhibit B-2, as it may be amended,
supplemented or otherwise modified from time to time.




          “Swing Line Sublimit” means the lesser of (i) $15,000,000, and (ii) the Available Credit then
in effect.




34









 








          “Syndication Agent” as defined in the preamble hereto.




          “Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction
or withholding of any nature and whatever called, by whomsoever, on whomsoever and wherever
imposed, levied, collected, withheld or assessed; provided, “Tax on the overall net income”
of a Person shall be construed as a reference to a tax imposed by the jurisdiction in which that
Person is organized or in which that Person’s applicable principal office (and/or, in the case of a
Lender, its lending office) is located or in which that Person (and/or, in the case of a Lender,
its lending office) is deemed to be doing business on all or part of the net income, profits or
gains (whether worldwide, or only insofar as such income, profits or gains are considered to arise
in or to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in the case of
a Lender, its applicable lending office).




          “Terminated Lender” as defined in Section 2.23.




          “Total Utilization of Revolving Commitments” means, as at any date of determination, the sum
of (i) the aggregate principal amount of all outstanding Revolving Loans (other than Revolving
Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing Issuing Banks
for any amount drawn under any Letter of Credit, but not yet so applied), (ii) the aggregate
principal amount of all outstanding Swing Line Loans, and (iii) the Letter of Credit Usage.




          “Type of Loan” means a Base Rate Loan or a LIBOR Loan.




          “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation as in effect
in any applicable jurisdiction).




          “Unused Commitment Fee” as defined in Section 2.11.




          1.2. Accounting Terms. Except as otherwise expressly provided herein, all accounting terms
not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP.
Financial statements and other information required to be delivered by Company to Lenders pursuant
to Section 5.1(a) or 5.1(b) shall be prepared in accordance with GAAP as in effect at the time of
such preparation (and delivered together with the reconciliation statements provided for in Section
5.1(d), if applicable). Subject to the foregoing, calculations in connection with the definitions,
covenants and other provisions hereof shall utilize accounting principles and policies (other than
with regard to fresh start accounting changes relating to the emergence from the Chapter 11 Cases)
in conformity with those used to prepare the Historical Financial Statements. If any change in
GAAP results in a change in the calculation of the financial covenants or interpretation of related
provisions of this Agreement or any other Credit Document, then Company, Administrative Agent and
the Lenders agree to amend such provisions of this Agreement so as to equitably reflect such
changes in GAAP with the desired result that the criteria for evaluating Company’s financial
condition shall be the same after such change in GAAP as if such change had not been made;
provided that, notwithstanding any other provision of this Agreement, the Requisite
Lenders’ agreement to any amendment of such provisions shall be sufficient to bind all Lenders, and
provided further that, until such time as the financial covenants and related
provisions of this Agreement have been amended in accordance with the terms of this Section 1.2,
the calculations of financial covenants and the interpretation of any related provisions shall be
calculated and interpreted in accordance with GAAP as in effect immediately prior to such change in
GAAP. Notwithstanding anything to the contrary in the foregoing, the definitions set forth in the
Credit Documents and any financial calculations required by the Credit Documents shall be computed
to exclude (a) the effect of purchase accounting adjustments, including the effect of non-Cash
items resulting from any amortization, write-up, write-down or write-off of any assets or deferred
charges (including, without limitation,


35









 







intangible assets, goodwill and deferred financing costs in connection with any Permitted
Acquisition or any merger, consolidation or other similar transaction permitted by this Agreement),
(b) the application of FAS 133, FAS 150 or FAS 123r (to the extent that the pronouncements in FAS
123r result in recording an equity award as a liability on the consolidated balance sheet of
Company and its Subsidiaries in the circumstance where, but for the application of the
pronouncements, such award would have been classified as equity), (c) any mark-to-market
adjustments to any derivatives (including embedded derivatives contained in other debt or equity
instruments under FAS 133), and (d) any non-Cash compensation charges resulting from the
application of FAS 123r.




     1.3. Interpretation, etc. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference. References herein to
any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an
Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the
word “include” or “including”, when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not non-limiting
language (such as “without limitation” or “but not limited to” or words of similar import) is used
with reference thereto, but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter. The terms lease and
license shall include sub-lease and sub-license, as applicable. 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).



SECTION 2. LOANS AND LETTERS OF CREDIT




     2.1. [Reserved].



     2.2. Revolving Facility.



          (a) Revolving Commitments. During the Revolving Commitment Period, subject to the
terms and conditions hereof, each Lender severally agrees to make Revolving Loans to Company in
Dollars in an aggregate amount up to but not exceeding such Lender’s Revolving Commitment;
provided, however, that, except for Protective Advances, at no time shall any
Lender be obligated to make a Revolving Loan in excess of such Lender’s Pro Rata Share of the
Available Credit. Amounts borrowed pursuant to this Section 2.2(a) may be repaid and reborrowed
during the Revolving Commitment Period. Each Lender’s Revolving Commitment shall expire on the
Maturity Date and all Revolving Loans and all other amounts owed hereunder with respect to the
Revolving Loans and the Revolving Commitments shall be paid in full no later than such date.




          (b) Borrowing Mechanics for Revolving Loans.





     (i) Except pursuant to Sections 2.3(b)(iv), Section 2.4(d) or, with respect to
Protective Advances, Section 9.8, Revolving Loans shall be made in an aggregate minimum
amount of $1,000,000 and integral multiples of $100,000 in excess of that amount.




     (ii) Whenever Company desires that Lenders make Revolving Loans, Company shall deliver
to Administrative Agent a fully executed Funding Notice no later than (a) 12:00 p.m. (noon)
(New York City time) at least three Business Days in advance of the proposed Credit Date in
the case of a LIBOR Loan and (b) no later than 11:00 a.m. (New York City time) on the day of
the proposed Credit Date in the case of a Revolving Loan that is a Base Rate Loan.



36









 







Except as otherwise provided herein, a Funding Notice for a Revolving Loan that is a
LIBOR Loan shall be irrevocable on and after the related Interest Rate Determination Date,
and Company shall be bound to make a borrowing in accordance therewith.




     (iii) Notice of receipt of each Funding Notice in respect of Revolving Loans, together
with the amount of each Lender’s Pro Rata Share thereof, if any, together with the
applicable LIBOR Period in the case of a LIBOR Loan, shall be provided by Administrative
Agent to each applicable Lender by telefacsimile with reasonable promptness, but (provided
Administrative Agent shall have received such Funding Notice by 12:00 p.m. (noon) (New York
City time)) not later than 3:00 p.m. (New York City time) on the same day as Administrative
Agent’s receipt of such Funding Notice from Company.




     (iv) Each Lender shall make the amount of its Revolving Loan available to
Administrative Agent not later than 2:00 p.m. (New York City time) on the applicable Credit
Date in the case of a Base Rate Loan and 11:00 a.m. (New York City time) on the applicable
Credit Date in the case of a LIBOR Loan, by wire transfer of same day funds in Dollars at
Administrative Agent’s Principal Office. Except as provided herein, upon satisfaction or
waiver of the conditions precedent specified herein, Administrative Agent shall make the
proceeds of such Revolving Loans available to Company on the applicable Credit Date by
causing an amount of same day funds in Dollars equal to the proceeds of all such Revolving
Loans received by Administrative Agent from Lenders to be credited to the account of Company
at Administrative Agent’s Principal Office or such other account as may be designated in
writing to Administrative Agent by Company in the applicable Funding Notice.




     (v) Notwithstanding the foregoing or Section 2.5(b), in order to minimize the frequency
of transfers of funds between Administrative Agent, Company and Lenders holding Revolving
Commitments, Administrative Agent may elect, at its sole option, to fund the entire amount
of any Revolving Loan provided for hereunder and, if such election is made, Administrative
Agent shall settle with the Lenders who hold Revolving Commitments on a weekly basis. In
the event Administrative Agent makes such election and funds any Revolving Loans under this
clause (v), for purposes of calculating interest payable to any Lender having Revolving
Commitments, (i) Administrative Agent shall be deemed a Lender that holds Revolving
Commitments with respect to any outstanding Revolving Loans funded by Administrative Agent,
and (ii) the amount of Revolving Loans of any Lender holding Revolving Commitments that are
outstanding on any day shall be equal to the amount of such Lender’s Revolving Loans
outstanding on such day (x) excluding any Revolving Loans that have been funded by
Administrative Agent with respect to which such Lender has not funded its Pro Rata Share and
(y) including Revolving Loans of such Lender which have been repaid by Company to
Administrative Agent but not yet received by such Lender from Administrative Agent. With
respect to Revolving Loans made by Administrative Agent under this clause (v), each Lender
having Revolving Commitments shall settle with Administrative Agent, upon Administrative
Agent’s request, on the third Business Day of each calendar week (or on such other day of
the week as may be designated from time to time by Administrative Agent) in each successive
calendar week (the “Settlement Date”), on any such Revolving Loans and payments since the
date of the last settlement. On each Settlement Date, prior to 11:00 a.m. (New York City
time), Administrative Agent shall notify each Lender by telephone or facsimile of such
Lender’s Pro Rata Share of the outstanding Revolving Loans and the amount of the payment
necessary to adjust such Lender’s outstanding Revolving Loans to such Lender’s Pro Rata
Share of such Revolving Loans as of such Settlement Date. Any such payment shall be made by
the party from



37









 







which such payment is due to the other party, in same day funds, not later than 2:00
p.m. (New York City time) on the next Business Day following such Settlement Date. If any
amount that is payable by a Lender to Administrative Agent on such Settlement Date is not in
fact made available to Administrative Agent by such Lender, Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Lender together with
interest thereon, for each day from such Settlement Date until the date such amount is paid
to Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the Base Rate.
If such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s
demand therefor, Administrative Agent shall promptly notify Company in writing, and Company
shall immediately pay such corresponding amount to Administrative Agent; provided
that Administrative Agent shall be entitled to withhold and retain (for its own account)
from the interest paid by Company, which would otherwise be paid by Administrative Agent to
such Lender, an amount equal to such corresponding amount such Lender failed to pay to
Administrative Agent until Administrative Agent has been fully reimbursed, including with
interest thereon, at the rate payable hereunder for Revolving Loans that are Base Rate
Loans, for each day from such Settlement Date until the date such amount is paid to
Administrative Agent. Nothing in this Section 2.2(b)(v) shall be deemed to relieve any
Lender from its obligation to fulfill its Revolving Commitments or to prejudice any rights
that Company may have against any Lender as a result of any default by such Lender
hereunder.



     2.3. Swing Line Loans.



          (a) Swing Line Loans.





     (i) During the Revolving Commitment Period, subject to the terms and conditions hereof,
the Swing Line Lender hereby agrees to make Swing Line Loans to Company in Dollars in the
aggregate amount up to but not exceeding the Swing Line Sublimit; provided,
however, that at no time shall the Swing Line Lender make a Swing Line Loan in
excess of the lesser of (a) the Available Credit and (b) the Swing Line Sublimit.




     (ii) Amounts borrowed pursuant to this Section 2.3 may be repaid and reborrowed during
the Revolving Commitment Period.




     (iii) The Swing Line Lender’s Swing Line Commitment shall expire on the Maturity Date,
and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line
Loans and the Swing Line Commitments shall be paid in full no later than such date.



          (b) Borrowing Mechanics for Swing Line Loans.





     (i) Swing Line Loans shall be made in an aggregate minimum amount of $50,000 and
integral multiples of $50,000 in excess of that amount.




     (ii) Whenever Company desires that Swing Line Lender make a Swing Line Loan, Company
shall deliver to Administrative Agent and the Swing Line Lender a fully executed Funding
Notice no later than 1:00 p.m. (New York City time) on the proposed Credit Date.



38









 






     (iii) The Swing Line Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 4:00 p.m. (New York City time) on the applicable Credit
Date, by wire transfer of same day funds in Dollars at Administrative Agent’s Principal
Office. Except as provided herein, upon satisfaction or waiver of the conditions precedent
specified herein, Administrative Agent shall make the proceeds of such Swing Line Loans
available to Company on the applicable Credit Date by causing an amount of same day funds in
Dollars equal to the proceeds of all such Swing Line Loans received by Administrative Agent
from Swing Line Lender to be credited to the account of Company at Administrative Agent’s
Principal Office, or to such other account as may be designated in writing to Administrative
Agent by Company.




     (iv) With respect to any Swing Line Loans which have not been voluntarily prepaid by
Company pursuant to Section 2.13, the Swing Line Lender may at any time (and, in any event,
at least weekly) in its sole and absolute discretion, deliver to Administrative Agent (with
a copy to Company), no later than 11:00 a.m. (New York City time) at least one Business Day
in advance of the proposed Credit Date, a notice requesting that each Lender holding a
Revolving Commitment make Revolving Loans that are Base Rate Loans to Company on such Credit
Date in an amount equal to the amount of such Swing Line Loans (the “Refunded Swing Line
Loan”) outstanding on the date such notice is given which the Swing Lender requests the
Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding,
(1) the proceeds of such Revolving Loans made by such Lenders other than the Swing Line
Lender shall be immediately delivered by Administrative Agent to the Swing Line Lender (and
not to Company) and applied to repay a corresponding portion of the Refunded Swing Line
Loans and (2) on the day such Revolving Loans are made, the Swing Line Lender’s Pro Rata
Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a
Revolving Loan made by the Swing Line Lender to Company with respect to such Refunded Swing
Line Loan, and such portion of the Swing Line Loans deemed to be so paid shall no longer be
outstanding as Swing Line Loans and shall no longer be due under the relevant Swing Line
Note of the Swing Line Lender but shall instead constitute part of the Swing Line Lender’s
outstanding relevant Revolving Loan to Company and shall be due under the Revolving Note
issued by Company to the Swing Line Lender. Company hereby authorizes Administrative Agent
and the Swing Line Lender to charge Company’s accounts (other than payroll, tax and trust
accounts) with either Administrative Agent or the Swing Line Lender (up to the amount
available in each such account) in order to immediately pay the Swing Line Lender the amount
of the Refunded Swing Line Loans to the extent of the proceeds of such Revolving Loans made
by Lenders, including any Revolving Loan deemed to be made by the Swing Line Lender, are not
sufficient to repay in full the Refunded Swing Line Loans. If any portion of any such
amount paid (or deemed to be paid) to the Swing Line Lender should be recovered by or on
behalf of Company from the Swing Line Lender in bankruptcy, by assignment for the benefit of
creditors or otherwise, the loss of the amount so recovered shall be ratably shared among
all Lenders in the manner contemplated by Section 2.17.




     (v) If for any reason Revolving Loans are not made pursuant to Section 2.3(b)(iv) in an
amount sufficient to repay any amounts owed to the Swing Line Lender in respect of any
outstanding Swing Line Loans on or before the third Business Day after demand for payment
thereof by Swing Line Lender, each Lender holding a Revolving Commitment shall be deemed to,
and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans,
in an amount equal to its Pro Rata Share of the applicable unpaid amount together with
accrued interest thereon. Upon one Business Day’s notice from the Swing Line Lender, each



39









 







Lender holding a Revolving Commitment shall deliver to the Swing Line Lender an amount
equal to its respective participation in the applicable unpaid amount in same day funds at
the Principal Office of the Swing Line Lender. In the event any Lender holding a Revolving
Commitment fails to make available to the Swing Line Lender the amount of such Lender’s
participation as provided in this paragraph, the Swing Line Lender shall be entitled to
recover such amount on demand from such Lender together with interest thereon for three
Business Days at the rate customarily used by Swing Line Lender for the correction of errors
among banks and thereafter at the Base Rate, as applicable.




               (vi) Notwithstanding anything contained herein to the contrary, (1) each Lender’s
obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans
pursuant to the second preceding paragraph and each Lender’s obligation to purchase a
participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph
shall be absolute and unconditional and shall not be affected by any circumstance, including
without limitation (A) any set-off, counterclaim, recoupment, defense or other right which
such Lender may have against Swing Line Lender, any Credit Party or any other Person for any
reason whatsoever; (B) the occurrence or continuation of a Default or Event of Default; (C)
any adverse change in the business, operations, properties, assets, condition (financial or
otherwise) or prospects of any Credit Party; (D) any breach of this Agreement or any other
Credit Document by any party thereto; or (E) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; and (2) Swing Line Lender shall
not be obligated to make any Swing Line Loans (A) if it has elected not to do so after the
occurrence and during the continuation of a Default or Event of Default or (B) at a time
when a Funding Default exists with respect to a Lender with a Revolving Commitment, unless
Swing Line Lender has entered into arrangements satisfactory to it and Company to eliminate
the Swing Line Lender’s risk with respect to the Defaulting Lender’s participation in such
Swing Line Loan, including by cash collateralizing (at not more than 100%) such Defaulting
Lender’s Pro Rata Share of the applicable outstanding Swing Line Loans.



     2.4. Issuance of Letters of Credit and Purchase of Participations Therein.



          (a) Letters of Credit. During the Revolving Commitment Period, subject to the terms
and conditions hereof, Issuing Bank agrees to issue Letters of Credit for the account of Company
(or, in the case of the Existing Letters of Credit, for the account of the entities named therein)
in the aggregate amount up to but not exceeding the Letter of Credit Sublimit; provided,
(i) each Letter of Credit shall be denominated in Dollars; (ii) the stated amount of each Letter of
Credit shall not be less than $20,000 or such lesser amount as is acceptable to Issuing Bank; (iii)
after giving effect to such issuance, in no event shall the Total Utilization of Revolving
Commitments exceed the lesser of the Borrowing Base and the Revolving Commitments then in effect;
(iv) after giving effect to such issuance, in no event shall the Letter of Credit Usage exceed the
Letter of Credit Sublimit then in effect; (v) in no event shall any standby Letter of Credit have
an expiration date later than the earlier of (1) the Maturity Date and (2) the date which is one
year from the date of issuance of such standby Letter of Credit; provided, such Letter of Credit
may provide for automatic renewal of such Letter of Credit for periods not exceeding one year per
renewal; and (vi) in no event shall any commercial Letter of Credit (x) have an expiration date
later than the earlier of (1) the Maturity Date and (2) the date one year after the date of the
issuance of such commercial Letter of Credit; provided, such Letter of Credit may provide for
automatic renewal of such Letter of Credit for periods not exceeding one year per renewal or (y) be
issued if such commercial Letter of Credit is otherwise unacceptable to Issuing Bank in its
reasonable discretion. In the event a Funding Default exists, Issuing Bank shall not be required
to issue any Letter of Credit unless Issuing



40









 






Bank has entered into arrangements satisfactory to it and Company to eliminate Issuing Bank’s
risk with respect to the participation in Letters of Credit of the Defaulting Lender, including by
cash collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage.




          (b) Notice of Issuance. Whenever Company desires the issuance of a Letter of Credit,
it shall deliver to Administrative Agent an Issuance Notice no later than 12:00 p.m. (New York City
time) at least three Business Days (in the case of standby letters of credit) or five Business Days
(in the case of commercial letters of credit), or in each case such shorter period as may be agreed
to by Issuing Bank in any particular instance, in advance of the proposed date of issuance. Upon
satisfaction or waiver of the conditions set forth in Section 3.2, Issuing Bank shall issue the
requested Letter of Credit only in accordance with Issuing Bank’s standard operating procedures.
Upon the issuance of any Letter of Credit or amendment or modification to a Letter of Credit,
Issuing Bank shall promptly notify each Lender with a Revolving Commitment of such issuance, which
notice shall be accompanied by a copy of such Letter of Credit or amendment or modification to a
Letter of Credit and the amount of such Lender’s respective participation in such Letter of Credit
pursuant to Section 2.4(e).




          (c) Responsibility of Issuing Bank With Respect to Requests for Drawings and Payments.
In determining whether to honor any drawing under any Letter of Credit by the beneficiary thereof,
Issuing Bank shall be responsible only to examine the documents delivered under such Letter of
Credit with reasonable care so as to ascertain whether they appear on their face to be in
accordance with the terms and conditions of such Letter of Credit. As between Company and Issuing
Bank, Company assumes all risks of the acts and omissions of, or misuse of the Letters of Credit
issued by Issuing Bank, by the respective beneficiaries of such Letters of Credit. In furtherance
and not in limitation of the foregoing, Issuing Bank shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party
in connection with the application for and issuance of any such Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to make a drawing under
any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary
of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii)
any consequences arising from causes beyond the control of Issuing Bank, including any Governmental
Acts; none of the above shall affect or impair, or prevent the vesting of, any of Issuing Bank’s
rights or powers hereunder. Without limiting the foregoing and in furtherance thereof, any action
taken or omitted by Issuing Bank under or in connection with the Letters of Credit or any documents
and certificates delivered thereunder, if taken or omitted in good faith, shall not give rise to
any liability on the part of Issuing Bank to Company. Notwithstanding anything to the contrary
contained in this Section 2.4(c), Company shall retain any and all rights it may have against
Issuing Bank for any liability arising solely out of the gross negligence or willful misconduct of
Issuing Bank.




          (d) Reimbursement by Company of Amounts Drawn or Paid Under Letters of Credit. In the
event Issuing Bank has determined to honor a drawing under a Letter of Credit, it shall immediately
notify Company and Administrative Agent, and Company shall reimburse Issuing Bank on or before the
Business Day immediately following the date on which such drawing is honored (the “Reimbursement


41









 







Date”) in an amount in Dollars and in same day funds equal to the amount of such honored
drawing; provided, anything contained herein to the contrary notwithstanding, (i) unless
Company shall have notified Administrative Agent and Issuing Bank prior to 10:00 a.m. (New York
City time) on the date such drawing is honored that Company intends to reimburse Issuing Bank for
the amount of such honored drawing with funds other than the proceeds of Revolving Loans, Company
shall be deemed to have given a timely Funding Notice to Administrative Agent requesting Lenders
with Revolving Commitments to make Revolving Loans that are Base Rate Loans on the Reimbursement
Date in an amount in Dollars equal to the amount of such honored drawing, and (ii) subject to
satisfaction or waiver of the conditions specified in Section 3.2, Lenders with Revolving
Commitments shall, on the Reimbursement Date, make Revolving Loans that are Base Rate Loans in the
amount of such honored drawing, the proceeds of which shall be applied directly by Administrative
Agent to reimburse Issuing Bank for the amount of such honored drawing; and provided
further, if for any reason proceeds of Revolving Loans are not received by Issuing Bank on
the Reimbursement Date in an amount equal to the amount of such honored drawing, Company shall
reimburse Issuing Bank, on demand, in an amount in same day funds equal to the excess of the amount
of such honored drawing over the aggregate amount of such Revolving Loans, if any, which are so
received. Nothing in this Section 2.4(d) shall be deemed to relieve any Lender with a Revolving
Commitment from its obligation to make Revolving Loans on the terms and conditions set forth
herein, and Company shall retain any and all rights it may have against any such Lender resulting
from the failure of such Lender to make such Revolving Loans under this Section 2.4(d).




          (e) Lenders’ Purchase of Participations in Letters of Credit. Immediately upon the
issuance of each Letter of Credit, each Lender having a Revolving Commitment shall be deemed to
have purchased, and hereby agrees to irrevocably purchase, from Issuing Bank a participation in
such Letter of Credit and any drawings honored thereunder in an amount equal to such Lender’s Pro
Rata Share (with respect to the Revolving Commitments) of the maximum amount which is or at any
time may become available to be drawn thereunder. In the event that Company shall fail for any
reason to reimburse Issuing Bank as provided in Section 2.4(d), Issuing Bank shall promptly notify
each Lender with a Revolving Commitment of the unreimbursed amount of such honored drawing and of
such Lender’s respective participation therein based on such Lender’s Pro Rata Share of the
Revolving Commitments. Each Lender with a Revolving Commitment shall make available to Issuing
Bank an amount equal to its respective participation, in Dollars and in same day funds, at the
office of Issuing Bank specified in such notice, not later than 12:00 p.m. (New York City time) on
the first business day (under the laws of the jurisdiction in which such office of Issuing Bank is
located) after the date notified by Issuing Bank. In the event that any Lender with a Revolving
Commitment fails to make available to Issuing Bank on such business day the amount of such Lender’s
participation in such Letter of Credit as provided in this Section 2.4(e), Issuing Bank shall be
entitled to recover such amount on demand from such Lender together with interest thereon for three
Business Days at the rate customarily used by Issuing Bank for the correction of errors among banks
and thereafter at the Base Rate. Nothing in this Section 2.4(e) shall be deemed to prejudice the
right of any Lender with a Revolving Commitment to recover from Issuing Bank any amounts made
available by such Lender to Issuing Bank pursuant to this Section in the event that it is
determined that the payments with respect to a Letter of Credit in respect of which payment was
made by such Lender constituted gross negligence or willful misconduct on the part of Issuing Bank.
In the event Issuing Bank shall have been reimbursed by other Lenders pursuant to this Section
2.4(e) for all or any portion of any drawing honored by Issuing Bank under a Letter of Credit, such
Issuing Bank shall distribute to each Lender which has paid all amounts payable by it under this
Section 2.4(e) with respect to such honored drawing such Lender’s Pro Rata Share of all payments
subsequently received by Issuing Bank from Company in reimbursement of such honored drawing when
such payments are received. Any such distribution shall be made to a Lender at its primary address
set forth below its name on Appendix B or at such other address as such Lender may request.




42









 





          (f) Obligations Absolute. The obligation of Company to reimburse Issuing Bank for
drawings honored under the Letters of Credit issued by it and to repay any Revolving Loans made by
Lenders pursuant to Section 2.4(d) and the obligations of Lenders under Section 2.4(e) shall be
unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof under
all circumstances including any of the following circumstances: (i) any lack of validity or
enforceability of any Letter of Credit; (ii) the existence of any claim, set-off, defense or other
right which Company or any Lender may have at any time against a beneficiary or any transferee of
any Letter of Credit (or any Persons for whom any such transferee may be acting), Issuing Bank,
Lender or any other Person or, in the case of a Lender, against Company, whether in connection
herewith, the transactions contemplated herein or any unrelated transaction (including any
underlying transaction between Company or one of its Subsidiaries and the beneficiary for which any
Letter of Credit was procured); (iii) any draft or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; (iv) any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or prospects of Parent or any of
its Subsidiaries; (v) any breach hereof or any other Credit Document by any party thereto; (vi) any
other circumstance or happening whatsoever, whether or not similar to any of the foregoing (other
than payment or performance in full in cash in accordance with the terms hereof); or (vii) the fact
that an Event of Default or a Default shall have occurred and be continuing; provided, in
each case, that payment by Issuing Bank under the applicable Letter of Credit shall not have
constituted gross negligence or willful misconduct of Issuing Bank under the circumstances in
question.




          (g) Indemnification. Without duplication of any obligation of Company under Section
10.2 or 10.3, in addition to amounts payable as provided herein, Company hereby agrees to protect,
indemnify, pay and save harmless Issuing Bank from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable fees, expenses and
disbursements of counsel and allocated costs of internal counsel) which Issuing Bank may incur or
be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit by
Issuing Bank, other than as a result of (1) the gross negligence or willful misconduct of Issuing
Bank or (2) the wrongful dishonor by Issuing Bank of a proper demand for payment made under any
Letter of Credit issued by it, or (ii) the failure of Issuing Bank to honor a drawing under any
such Letter of Credit as a result of any Governmental Act.




     2.5. Pro Rata Shares; Availability of Funds.



          (a) Pro Rata Shares. All Loans shall be made, and all participations purchased, by
Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood
that no Lender shall be responsible for any default by any other Lender in such other Lender’s
obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall
any Commitment of any Lender be increased or decreased as a result of a default by any other Lender
in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation
required hereby.




          (b) Availability of Funds. Unless Administrative Agent shall have been notified by
any Lender prior to the applicable Credit Date that such Lender does not intend to make available
to Administrative Agent the amount of such Lender’s Loan requested on such Credit Date,
Administrative Agent may assume that such Lender has made such amount available to Administrative
Agent on such Credit Date and Administrative Agent may, in its sole discretion, but shall not be
obligated to, make available to Company a corresponding amount on such Credit Date. If such
corresponding amount is not in fact made available to Administrative Agent by such Lender,
Administrative Agent shall be entitled to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such Credit Date until the date such
amount is paid to Administrative Agent, at the customary





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rate set by Administrative Agent for the correction of errors among banks for three Business Days
and thereafter at the Base Rate. If such Lender does not pay such corresponding amount forthwith
upon Administrative Agent’s demand therefor, Administrative Agent shall promptly notify Company,
and Company shall immediately pay such corresponding amount to Administrative Agent together with
interest thereon, for each day from such Credit Date until the date such amount is paid to
Administrative Agent, at the rate payable hereunder for Base Rate Loans for such Loans. Nothing in
this Section 2.5(b) shall be deemed to relieve any Lender from its obligation to fulfill its
Commitments hereunder or to prejudice any rights that Company may have against any Lender as a
result of any default by such Lender hereunder.




     2.6. Use of Proceeds. Company shall utilize the proceeds of the Loans and, with respect to
clauses (i) and (ii) below, the proceeds of the European AR Factoring Facilities, the European
First Lien Term Loan Agreement, the Second Lien Term Loan Agreement and additional cash to be
repatriated from the Company’s Foreign Subsidiaries, and, with respect to clause (iii) below, the
Letters of Credit, solely (i) to repay in full the amounts outstanding under the Existing DIP
Agreements, (ii) to otherwise enable Company to consummate the Plan and to pay related transaction
costs, fees and expenses, (iii) to provide financing for working capital purposes, general
corporate purposes and permitted Capital Expenditures from time to time for Company and its
Domestic Subsidiaries, and (iv) to pay interest, fees and expenses owing to the Agents and the
Lenders pursuant to this Agreement. No portion of the proceeds of any Credit Extension shall be
used in any manner that causes or might cause such Credit Extension or the application of such
proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors or any
other regulation thereof or to violate the Exchange Act.



     2.7. Evidence of Debt; Register; Lenders’ Books and Records; Notes.



          (a) Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an
account or accounts evidencing the Obligations of Company to such Lender, including the amounts of
the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation
shall be conclusive and binding on Company, absent manifest error; provided, that the
failure to make any such recordation, or any error in such recordation, shall not affect any
Lender’s Revolving Commitments or Company’s Obligations in respect of any applicable Loans; and
provided further, in the event of any inconsistency between the Register and any
Lender’s records, the recordations in the Register shall govern.



          (b) Register. Administrative Agent (or its agent or sub-agent appointed by it),
acting solely for this purpose as a non-fiduciary agent of Company, shall maintain at its Principal
Office, or such other location as Administrative Agent shall notify Lenders and Company in writing,
a copy of each Assignment Agreement delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive absent manifest error, and Company, Administrative Agent, and the
Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register, as in effect on the close of business the preceding Business Day, shall be available
for inspection by Company and any Lender, at any reasonable time and from time to time upon
reasonable prior notice; provided, however, each Lender shall only be entitled to inspect
an excerpt of the Register containing information relating to such Lender and such Lender’s Loans
and Commitments. In the case of any assignment not reflected in the Register, the assigning Lender
agrees that it shall maintain a comparable register as a non-fiduciary agent of Company. Such
register, as in effect on the close of business the preceding Business Day, shall be available for
inspection by Administrative Agent at any reasonable time and from time to time upon



44









 







reasonable prior notice, and Administrative Agent shall have the right to share any
information obtained by it in connection with any such inspection with Company, and Administrative
Agent agrees that it shall conduct inspections of such register to the extent requested to do so by
Company upon reasonable prior written notice and at reasonable intervals.



          (c) Notes. If so requested by any Lender by written notice to Company (with a copy to
Administrative Agent) at least two Business Days prior to the Closing Date, or at any time
thereafter, Company shall execute and deliver to such Lender (and/or, if applicable and if so
specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6)
on the Closing Date (or, if such notice is delivered after two Business Days prior to the Closing
Date, within three Business Days after Company’s receipt of such notice) a Note or Notes to
evidence such Lender’s Revolving Loans or Swing Line Loans to Company, as the case may be.



     2.8. Interest on Loans.



          (a) Except as otherwise set forth herein, each Loan shall bear interest on the unpaid
principal amount thereof from the date made through repayment (whether by acceleration or
otherwise) thereof as follows:




          (i) in the case of Revolving Loans (other than Protective Advances): (A) if a Base Rate
Loan, at the Base Rate plus the Applicable Margin in effect at such time for Base Rate Loans
or (B) if a LIBOR Loan, at the LIBOR Rate plus the Applicable Margin in effect at such time
for LIBOR Loans; or




          (ii) in the case of Swing Line Loans and Protective Advances, at the Base Rate plus the
Applicable Margin in effect at such time for Base Rate Loans.



          (b) The basis for determining the rate of interest with respect to any Revolving Loan, and the
LIBOR Period with respect to any LIBOR Loan, shall be selected by Company and notified to
Administrative Agent and Lenders pursuant to the applicable Funding Notice or
Conversion/Continuation Notice, as the case may be; provided that Swing Line Loans may be
made and maintained as a Base Rate Loan only. If on any day a Revolving Loan is outstanding with
respect to which a Funding Notice or Conversion/Continuation Notice has not been delivered to
Administrative Agent in accordance with the terms hereof specifying the applicable basis for
determining the rate of interest, then for that day such Loan shall be a Base Rate Loan.




          (c) In connection with LIBOR Loans there shall be no more than 7 LIBOR Periods outstanding at
any time. In the event Company fails to specify between a Base Rate Loan or a LIBOR Loan in any
Funding Notice or Conversion/Continuation Notice, the relevant Revolving Loan (if outstanding as a
LIBOR Loan) will be automatically converted into a Base Rate Loan on the last day of the
then-current LIBOR Period for such Loan (or if outstanding as a Base Rate Loan will remain as, or
(if not then outstanding) will be made as, a Base Rate Loan). In the event Company fails to
specify a LIBOR Period for any LIBOR Loan in any Funding Notice or Conversion/Continuation Notice,
Company shall be deemed to have selected a LIBOR Period of one month. As soon as practicable after
11:00 a.m. (New York City time) on each Interest Rate Determination Date, Administrative Agent
shall determine (which determination shall, absent manifest error, be final, conclusive and binding
upon all parties) the LIBOR Rate applicable to the relevant Revolving Loan for the applicable LIBOR
Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to
Company and each Lender.




45









 








          (d) Interest payable pursuant to Section 2.8(a) shall be computed (i) in the case of Base Rate
Loans, on the basis of a 365 or 366 day year, as the case may be, and (ii) in the case of LIBOR
Loans, on the basis of a 360-day year for the actual number of days elapsed in the period during
which it accrues. In computing interest on any Loan, the date of the making of such Loan or the
first day of a LIBOR Period applicable to such Loan or, with respect to a Base Rate Loan being
converted from a LIBOR Loan, the date of conversion of such LIBOR Loan to such Base Rate Loan, as
the case may be, shall be included, and the date of payment of such Loan or the expiration date of
a LIBOR Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a
LIBOR Loan, the date of conversion of such Base Rate Loan to a LIBOR Loan, as the case may be,
shall be excluded; provided, if a Loan is repaid on the same day on which it is made, one
day’s interest shall be paid on that Loan.




          (e) Except as otherwise set forth herein, interest on each Loan shall accrue on a daily basis
and shall be payable in arrears on each Interest Payment Date with respect to interest accrued on
and to each such payment date and (ii) shall accrue on a daily basis and shall be payable in
arrears upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on
the amount being prepaid; and (iii) shall accrue on a daily basis and shall be payable in arrears
at maturity, including final maturity of the Loans; provided, however, with respect to any
voluntary prepayment of a Base Rate Loan (other than any Swing Line Loan), accrued interest shall
instead be payable on the next succeeding Interest Payment Date (except if all Loans are being
repaid in full and the Revolving Commitments terminated).




          (f) Company agrees to pay to Issuing Bank, with respect to drawings honored under any Letter
of Credit, interest on the amount paid by Issuing Bank in respect of each such honored drawing from
the date such drawing is honored to but excluding the date such amount is reimbursed by or on
behalf of Company at a rate equal to (i) for the period from the date such drawing is honored to
but excluding the applicable Reimbursement Date, the rate of interest otherwise payable hereunder
with respect to Revolving Loans that are Base Rate Loans, and (ii) thereafter, a rate which is 2%
per annum in excess of the rate of interest otherwise payable hereunder with respect to Revolving
Loans that are Base Rate Loans.




          (g) Interest payable pursuant to Section 2.8(f) shall be computed on the basis of a
365/366-day year for the actual number of days elapsed in the period during which it accrues, and
shall be payable on demand or, if no demand is made, on the date on which the related drawing under
a Letter of Credit is reimbursed in full. Promptly upon receipt by Issuing Bank of any payment of
interest pursuant to Section 2.8(f), Issuing Bank shall distribute to each Lender, out of the
interest received by Issuing Bank in respect of the period from the date such drawing is honored to
but excluding the date on which Issuing Bank is reimbursed for the amount of such drawing
(including any such reimbursement out of the proceeds of any Revolving Loans), the amount that such
Lender would have been entitled to receive in respect of the letter of credit fee that would have
been payable in respect of such Letter of Credit for such period if no drawing had been honored
under such Letter of Credit. In the event Issuing Bank shall have been reimbursed by Lenders for
all or any portion of such honored drawing, Issuing Bank shall distribute to each Lender which has
paid all amounts payable by it under Section 2.4(e) with respect to such honored drawing such
Lender’s Pro Rata Share of any interest received by Issuing Bank in respect of that portion of such
honored drawing so reimbursed by Lenders for the period from the date on which Issuing Bank was so
reimbursed by Lenders to but excluding the date on which such portion of such honored drawing is
reimbursed by Company.





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     2.9. Conversion/Continuation.



          (a) Subject to Section 2.18 and so long as no Default or Event of Default shall have occurred
and then be continuing, Company shall have the option:





          (i) to convert at any time all or any part of any Revolving Loans equal to $1,000,000
and integral multiples of $100,000 in excess of that amount from one Type of Loan to another
Type of Loan; provided, a LIBOR Loan may only be converted on the expiration of the
LIBOR Period applicable to such LIBOR Loan unless Company shall pay all amounts due under
Section 2.18 in connection with any such conversion; or




          (ii) upon the expiration of any LIBOR Period applicable to any LIBOR Loan, to continue
all or any portion of such Loan equal to $1,000,000, and integral multiples of $100,000 in
excess of that amount as a LIBOR Loan.



          (b) Company shall deliver a Conversion/Continuation Notice to Administrative Agent no later
than 10:00 a.m. (New York City time) at least one Business Day in advance of the proposed
conversion date (in the case of a conversion to a Base Rate Loan) and at least three Business Days
in advance of the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a LIBOR Loan). Except as otherwise provided herein, a Conversion/Continuation
Notice for conversion to, or continuation of, any LIBOR Loan shall be irrevocable on and after the
related Interest Rate Determination Date, and Company shall be bound to effect a conversion or
continuation in accordance therewith.




     2.10. Default Interest. Upon the occurrence and during the continuance of an Event of
Default, at the election of the Administrative Agent or Requisite Lenders (i) the principal amount
of all Loans outstanding (including Protective Advances) and, to the extent permitted by applicable
law, any interest payments on the Loans or any fees or other amounts owed hereunder, shall
thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy
Code or other applicable bankruptcy or insolvency laws) payable on written demand at a rate that is
2% per annum in excess of the interest rate otherwise payable hereunder with respect to Base Rate
Loans and (ii) the fees payable under Section 2.11(a) shall be increased 2% per annum in excess of
the rates otherwise payable thereunder. Payment or acceptance of the increased rates of interest
provided for in this Section 2.10 is not a permitted alternative to timely payment and shall not
constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies
of Administrative Agent or any Lender.



     2.11. Fees.



          (a) Company agrees to pay to Lenders having Revolving Exposure:





          (i) an unused commitment fee (the “Unused Commitment Fee”) equal to (1) the average of
the daily difference between (a) the Revolving Commitments and (b) the aggregate principal
amount of (x) all outstanding Revolving Loans plus (y) the Letter of Credit Usage,
times (2) the Applicable Margin then in effect for the Unused Commitment Fee; and
provided further that Company shall not be required to pay such Unused
Commitment Fees to any Lender that is, on the date such Unused Commitment Fee is to be paid
to the Lenders, a Defaulting Lender, and




          (ii) letter of credit fees equal to (1) the Applicable Margin then in effect for LIBOR
Loans, times (2) the average aggregate daily maximum amount available to be drawn
under all such Letters of Credit (regardless of whether any conditions for drawing could
then be met and determined as of the close of business on any date of determination).



47









 




All fees referred to in this Section 2.11(a) shall be paid to Administrative Agent at its Principal
Office and upon receipt, Administrative Agent shall promptly distribute to each Lender its Pro Rata
Share thereof.




          (b) Company agrees to pay directly to Issuing Bank, for its own account, the following fees:





          (i) a fronting fee equal to 0.25%, per annum (or such higher rate as may be agreed
between Company and Issuing Bank), times the average aggregate daily maximum amount
available to be drawn under all Letters of Credit (determined as of the close of business on
any date of determination); and




          (ii) such documentary and processing charges for any issuance, amendment, transfer or
payment of a Letter of Credit as are in accordance with Issuing Bank’s standard schedule for
such charges and as in effect at the time of such issuance, amendment, transfer or payment,
as the case may be.



          (c) All fees referred to in Section 2.11(a) and 2.11(b)(i) shall be calculated on the basis of
a 360-day year and the actual number of days elapsed and shall be payable quarterly in arrears on
first day of each calendar month during the Revolving Commitment Period, commencing on the first
date to occur after the Closing Date; provided, however, that if such date is not
a Business Day, then such fees shall be payable on the immediately preceding Business Day and (ii)
the Maturity Date.




          (d) On the Closing Date, Company agrees to pay to each of the Lenders a closing fee equal to
2.00% of such Lender’s Revolving Commitment on the Closing Date.




          (e) Upon any reduction or termination of the Revolving Commitments (other than any such
reduction or termination required under Section 2.14 as a result of any mandatory prepayment
thereunder) on or prior to the second anniversary of the Closing Date, Company shall pay to the
Administrative Agent, for the benefit of the Lenders ratably, an amount equal to 1.00% of the
principal amount of the Revolving Commitments so reduced or terminated.




          (f) In addition to any of the foregoing fees, Company agrees to pay to Agents such other fees
in the amounts and at the times separately agreed upon.




     2.12. Scheduled Reduction of Revolving Commitments. The Revolving Commitments shall be
permanently reduced to zero on the Maturity Date.



     2.13. Voluntary Prepayments and Commitment Reductions.



          (a) Voluntary Prepayments. At any time and from time to time, Company may prepay any
Loans on any Business Day in whole or in part, in an aggregate minimum amount of $1,000,000 and
integral multiples of $100,000 in excess of that amount (or such lesser amount as may represent the
entire amount of the outstanding Swing Line Loans).




          (b) All such prepayments shall be made (without premium or penalty, except as set forth in
Section 2.18(c)):





          (i) upon not less than one Business Day’s prior written notice in the case of Base Rate
Loans;



48









 





          (ii) upon not less than three Business Days’ prior written notice in the case of LIBOR
Loans; and




          (iii) upon prior written notice on the date of prepayment in the case of Swing Line
Loans; and



in each case given to Administrative Agent or Swing Line Lender, as the case may be, by 12:00 p.m.
(New York City time) in writing on the date required to Administrative Agent (and Administrative
Agent will promptly transmit such original notice for the Loans by telefacsimile or telephone to
each Lender) or Swing Line Lender, as the case may be. Upon the giving of any such notice, the
principal amount of the Loans specified in such notice shall become due and payable on the
prepayment date specified therein. Any such voluntary prepayment shall be applied as specified in
Section 2.15(a).




          (c) Voluntary Commitment Reductions.





          (i) Company may, upon not less than three Business Days’ prior written or telephonic
notice confirmed in writing to Administrative Agent (which original written or telephonic
notice Administrative Agent will promptly transmit by telefacsimile or telephone to each
applicable Lender), at any time and from time to time terminate in whole or permanently
reduce in part, without premium or penalty, the Revolving Commitments in an amount up to the
amount by which the Revolving Commitments exceed the Total Utilization of Revolving
Commitments at the time of such proposed termination or reduction; provided, any
such partial reduction of the Revolving Commitments shall be in an aggregate minimum amount
of $5,000,000 and integral multiples of $1,000,000 in excess of that amount;
provided, any such reduction or termination shall be accompanied by payment of any
fees required under Section 2.11(e).




          (ii) Company’s notice to Administrative Agent shall designate the date (which shall be
a Business Day) of such termination or reduction and the amount of any partial reduction,
and such termination or reduction of the Revolving Commitments shall be effective on the
date specified in Company’s notice and shall reduce the Revolving Commitment of each Lender
proportionately to its Pro Rata Share thereof.



     2.14. Mandatory Prepayments/Commitment Reductions. Subject to the provisions of the
Intercreditor Agreement and the European Intercreditor Agreement, the Loans shall be repaid (or
cash collateral shall be provided in respect of Letters of Credit) in the manner provided in
Sections 2.14(a) through (g) below.



          (a) Asset Sales. Promptly but in no event later than two Business Days following the
date of receipt by Company or any Guarantor of any Net Asset Sale Proceeds (other than in
connection with Asset Sales permitted by Section 6.9(a)(ii) or (f); provided no Event of
Default has occurred and is continuing), Company shall prepay (to the extent such prepayment has
not been made pursuant to clause (g) below) the Loans and accrued interest thereon (and, following
repayment of the Revolving Loans or if no Revolving Loans are outstanding, provide cash collateral
for outstanding undrawn amounts under Letters of Credit in the manner described in Section 8.2 on a
pro rata basis) in an aggregate amount equal to such Net Asset Sale Proceeds; provided,
however, that Company will only be required to make prepayments and provide cash collateral
under this clause (a) with Net Asset Sale Proceeds to the extent such Net Asset Sale Proceeds
thereof are greater than $1,000,000 in the aggregate, during any Fiscal Year.




49









 








          (b) Insurance/Condemnation Proceeds. Promptly, but in no event later than one
Business Day following the date of receipt by Company or any Guarantor, or Administrative Agent or
Collateral Agent as loss payee, of any Net Insurance/Condemnation Proceeds, Company shall prepay
(to the extent such prepayment has not been made pursuant to clause (g) below) the Loans and
accrued interest thereon and, following repayment of the Revolving Loans or if no Revolving Loans
are outstanding, provide cash collateral for outstanding undrawn amounts under Letters of Credit in
the manner described in Section 8.2 on a pro rata basis in an aggregate amount equal to such Net
Insurance/Condemnation Proceeds.




          (c) [Reserved.]




          (d) Issuance of Debt. Within one Business Day of receipt by Company or any Guarantor
of any Cash proceeds from the incurrence of any Indebtedness of Parent or any of its Subsidiaries
(other than with respect to any Indebtedness permitted to be incurred pursuant to Section 6.1(m))
after the Closing Date, Company shall prepay (to the extent such prepayment has not been made
pursuant to clause (g) below) the Loans and accrued interest thereon and, following repayment of
the Revolving Loans or if no Revolving Loans are outstanding, provide cash collateral for
outstanding undrawn amounts under Letters of Credit in the manner described in Section 8.2 on a pro
rata basis in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and
commissions and other costs and expenses associated therewith, including legal fees and expenses.




          (e) Maximum Credit. If at any time, the Total Utilization of Revolving Commitments
(excluding, for purposes of this Section 2.14(e), Protective Advances) exceeds the aggregate
Maximum Credit then in effect at such time, Company shall immediately prepay the Swing Line Loans
first and then the Revolving Loans then outstanding in an amount equal to such excess. If any such
excess remains after repayment in full of the aggregate outstanding Swing Line Loans and Revolving
Loans, Company shall provide cash collateral for the Letter of Credit Usage in the manner set forth
in Section 8.2 in an amount equal to 105% of such excess; provided, however, if the Total
Utilization of Revolving Commitments exceeds the Maximum Credit as a result of the Administrative
Agent establishing a reserve or increasing an existing reserve or otherwise making permitted
changes to the Borrowing Base in its reasonable credit judgment exercised in good faith, the
Company shall have two (2) Business Days after written notice thereof is given by the
Administrative Agent to the Company to make such mandatory prepayment.




          (f) Prepayment Certificate. Concurrently with any prepayment of the Loans pursuant to
Sections 2.14(a) through 2.14(e), Company shall deliver to Administrative Agent a certificate of an
Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds or
the Maximum Credit excess, as the case may be. In the event that Company shall subsequently
determine that the actual amount received exceeded the amount set forth in such certificate,
Company shall promptly make an additional prepayment of the Loans in an amount equal to such
excess, and Company shall concurrently therewith deliver to Administrative Agent a certificate of
an Authorized Officer demonstrating the derivation of such excess.




          (g) On each Business Day, to the extent Loans are outstanding, all available proceeds
collected in the Cash Collateral Account shall be applied to the repayment of the Loans, as
provided in Section 5.12.





50









 





     2.15. Application of Prepayments/Reductions.



          (a) Application of Voluntary Prepayments by Type of Loans. Any prepayment of any Loan
pursuant to Section 2.13(a) shall be applied as specified by Company in the applicable notice of
prepayment; provided, in the event Company fails to specify the Loans to which any such
prepayment shall be applied, such prepayment shall be applied as follows, in each case, subject to
the terms of the Intercreditor Agreement:





          (i) first, to repay outstanding Swing Line Loans (without any reduction of the
Revolving Commitment or Swing Line Commitment), on a pro rata basis, to the full extent
thereof; and




          (ii) second, to repay outstanding Revolving Loans (without any reduction of the
Revolving Commitment), on a pro rata basis, to the full extent thereof.



          (b) Application of Mandatory Prepayments by Type of Loans. Any amount required to be
paid pursuant to Sections 2.14(a) through 2.14(e) and 2.14(g) shall be applied as follows, and in
the cases of Sections 2.14(a) through 2.14(d), subject to the terms of the Intercreditor Agreement:





          (i) first, to prepay the Swing Line Loans on a pro rata basis (in accordance with the
respective outstanding principal amounts thereof) to the full extent thereof (without a
permanent reduction in the Revolving Commitment or Swing Line Commitment by the amount of
any such prepayment unless an Event of Default shall have occurred and be continuing);





          (ii) second, to prepay the Revolving Loans on a pro rata basis (in accordance with the
respective outstanding principal amounts thereof) (without a permanent reduction in the
Revolving Commitment or Swing Line Commitment by the amount of any such prepayment);




          (iii) third, to prepay outstanding reimbursement obligations with respect to Letters of
Credit; and




          (iv) fourth, to provide cash collateral for any Letters of Credit in an amount equal to
105% of the outstanding amount of such Letters of Credit in the manner set forth in Section
8.2 until all such Letters of Credit have been fully cash collateralized in the manner set
forth therein.



          (c) Protective Advances. Notwithstanding the foregoing, payments under this Section
2.15 that are allocated to repay Revolving Loans shall be allocated first to repay Protective
Advances until such Protective Advances are paid in full and then to repay the other Revolving
Loans.




          (d) Application of Prepayments of Loans to Base Rate Loans and LIBOR Loans. Any
prepayment of Loans shall be applied first to Base Rate Loans to the full extent thereof before
application to LIBOR Loans, in each case in a manner which minimizes the amount of any payments
required to be made by Company pursuant to Section 2.18(c).




     2.16. General Provisions Regarding Payments.



          (a) All payments by Company of principal, interest, fees and other Obligations shall be made
in Dollars in same day funds, without defense, setoff or counterclaim, free of any restriction or
condition, and delivered to Administrative Agent not later than 12:00 p.m. (New York City time) on
the date due at Administrative Agent’s Principal Office for the account of Lenders; for purposes of



51









 






computing interest and fees, funds received by Administrative Agent after that time on such
due date shall be deemed to have been paid by Company on the next succeeding Business Day.




          (b) All payments in respect of the principal amount of any Loan (other than voluntary
prepayments of Revolving Loans and payments pursuant to Section 2.14(g)) shall be accompanied by
payment of accrued interest on the principal amount being repaid or prepaid.




          (c) Subject to Section 2.2(b)(v), Administrative Agent (or its agent or sub-agent appointed by
it) shall promptly distribute to each Lender at such address as such Lender shall indicate in
writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and
interest due hereunder, together with all other amounts due thereto, including, without limitation,
all fees payable with respect thereto, to the extent received by Administrative Agent.




          (d) Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is
withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its
Pro Rata Share of any LIBOR Loans, Administrative Agent shall give effect thereto in apportioning
payments received thereafter.




          (e) Subject to the provisos set forth in the definition of “LIBOR Period” as they may apply to
Revolving Loans, whenever any payment to be made hereunder with respect to any Loan shall be stated
to be due on a day that is not a Business Day, such payment shall be made on the next succeeding
Business Day (other than with respect to fees payable pursuant to Section 2.11(c)) and, with
respect to Revolving Loans only, such extension of time shall be included in the computation of the
payment of interest hereunder or of the Revolving Commitment fees hereunder.




          (f) Company hereby authorizes Administrative Agent to charge Company’s accounts (other than
payroll, tax or trust accounts) with Administrative Agent in order to cause timely payment to be
made to Administrative Agent of all principal, interest, fees and expenses due hereunder (subject
to sufficient funds being available in its accounts for that purpose).




          (g) Administrative Agent shall deem any payment by or on behalf of Company hereunder that is
not made in same day funds prior to 12:00 p.m. (New York City time) to be a non-conforming payment.
Any such payment shall not be deemed to have been received by Administrative Agent until the later
of (i) the time such funds become available funds, and (ii) the applicable next Business Day.
Administrative Agent shall give prompt telephonic notice to Company and each applicable Lender
(confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute
or become a Default or Event of Default in accordance with the terms of Section 8.1(a). Interest
shall continue to accrue on any principal as to which a non-conforming payment is made until such
funds become available funds (but in no event less than the period from the date of such payment to
the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.10 from
the date such amount was due and payable until the date such amount is paid in full.




          (h) If an Event of Default shall have occurred and not otherwise been waived, and the maturity
of the Obligations shall have been accelerated pursuant to Section 8.1, all payments or proceeds
received by Agents hereunder in respect of any of the Obligations, shall be applied in the
following order:





          (i) first, to pay interest on and then principal of Swing Line Loans and any portion of
the Revolving Loans (including Protective Advances) that Administrative Agent may



52









 




have advanced on behalf of any Lender for which Administrative Agent has not then been
reimbursed by such Lender or Company;





          (ii) second to pay Protective Advances;




          (iii) third, to pay Obligations in respect of any expense reimbursements or indemnities
then due to any Agent;




          (iv) fourth, to pay Obligations in respect of any expense reimbursements or indemnities
then due to the Lenders and Issuing Banks;




          (v) fifth, to pay Obligations in respect of any fees then due the Lenders and Issuing
Banks;




          (vi) sixth, to pay interest then due and payable in respect of (A) Loans and (B)
outstanding reimbursement obligations with respect to Letters of Credit;




          (vii) seventh, to pay or prepay principal amounts on the Loans and reimbursement
obligations with respect to Letters of Credit, to provide cash collateral for outstanding
undrawn amounts under Letters of Credit in the manner described in Section 8.2, and, to the
extent of any Eligibility Reserve then in effect with respect thereto, pay amounts due and
owing Lenders and Lender Counterparties in respect of Hedge Agreements up to $2,000,000,
ratably to the aggregate principal amount of such Loans, reimbursement obligations undrawn
amounts and amounts under Hedge Agreements;




          (viii) eighth, to pay amounts due and owing Lenders, Lender Counterparties and Issuing
Banks in respect of Hedge Agreements not paid under clause (vii) above and Cash Management
Obligations; and




          (ix) ninth, to the ratable payment of all other Obligations;


provided, however, that if sufficient funds are not available to fund all payments
to be made in respect of any Obligations described in any of clauses (i), (ii), (iii), (iv), (v),
(vi), (vii) and (viii) above the available funds being applied with respect to any such Obligation
(unless otherwise specified in such clause) shall be allocated to the payment of such Obligation
ratably, based on the proportion of each Lender’s or Issuing Bank’s interest in the aggregate
outstanding Obligations described in such clauses. The order of priority set forth in clauses (i),
(ii), (iii) and (iv) above may be changed only with the prior written consent of Administrative
Agent in addition to that of the Requisite Lenders.




     2.17. Ratable Sharing. Lenders hereby agree among themselves that, except as otherwise
provided in the Collateral Documents with respect to amounts realized from the exercise of rights
with respect to Liens on the Collateral, if any of them shall, whether by voluntary payment (other
than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through
the exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the
enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a
deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in respect of Letters of
Credit, fees and other amounts then due and owing to such Lender hereunder or under the other
Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than
the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other
Lender, then the Lender receiving such



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proportionately greater payment shall (a) notify Administrative Agent and each other Lender of
the receipt of such payment and (b) apply a portion of such payment to purchase participations
(which it shall be deemed to have purchased from each seller of a participation simultaneously upon
the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the
other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders
in proportion to the Aggregate Amounts Due to them; provided, if all or part of such
proportionately greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of Company or otherwise, those purchases shall be
rescinded and the purchase prices paid for such participations shall be returned to such purchasing
Lender ratably to the extent of such recovery, but without interest. Company expressly consents to
the foregoing arrangement and agrees that any holder of a participation so purchased may exercise
any and all rights of banker’s lien, set-off or counterclaim with respect to any and all monies
owing by Company to that holder with respect thereto as fully as if that holder were owed the
amount of the participation held by that holder.




     2.18. Making or Maintaining LIBOR Loans.



          (a) Inability to Determine Applicable Interest Rate. In the event that Administrative
Agent shall have determined (which determination shall be final and conclusive and binding upon all
parties hereto), on any Interest Rate Determination Date with respect to any LIBOR Loans, that by
reason of circumstances affecting the London interbank market adequate and fair means do not exist
for ascertaining the interest rate applicable to such Loans on the basis provided for in the
definition of LIBOR Rate, Administrative Agent shall on such date give notice (by telefacsimile or
by telephone confirmed in writing) to Company and each Lender of such determination, whereupon
(i) no Loans may be made as, or converted to, LIBOR Loans until such time as Administrative Agent
notifies Company and Lenders that the circumstances giving rise to such notice no longer exist, and
(ii) any Funding Notice or Conversion/Continuation Notice given by Company with respect to the
Loans in respect of which such determination was made shall be deemed to be rescinded by Company.




          (b) Illegality or Impracticability of LIBOR Loans. In the event that on any date any
Lender shall have determined (which determination shall in the absence of manifest error be final
and conclusive and binding upon all parties hereto but shall be made only after consultation with
Company and Administrative Agent) that the making, maintaining or continuation of its LIBOR Loans
(i) has become unlawful as a result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty,
governmental rule, regulation, guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result
of contingencies occurring after the date hereof which materially and adversely affect the London
interbank market or the position of such Lender in that market, then, and in any such event, such
Lender shall be an “Affected Lender” and it shall on that day give notice (by telefacsimile or by
telephone confirmed in writing) to Company and Administrative Agent of such determination (which
notice Administrative Agent shall promptly transmit to each other Lender). Thereafter (1) the
obligation of the Affected Lender to make Loans as, or to convert Loans to, LIBOR Loans shall be
suspended until such notice shall be withdrawn by the Affected Lender, (2) to the extent such
determination by the Affected Lender relates to a LIBOR Loan then being requested by Company
pursuant to a Funding Notice or a Conversion/Continuation Notice, the Affected Lender shall make
such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate
Loan, (3) the Affected Lender’s obligation to maintain its outstanding LIBOR Loans (the “Affected
Loans”) shall be terminated at the earlier to occur of the expiration of the LIBOR Period then in
effect with respect to the Affected Loans or when required by law, and (4) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the



54









 






foregoing, to the extent a determination by an Affected Lender as described above relates to a
LIBOR Loan then being requested by Company pursuant to a Funding Notice or a
Conversion/Continuation Notice, Company shall have the option, subject to the provisions of Section
2.18(c), to rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders by
giving notice (by telefacsimile or by telephone confirmed in writing) to Administrative Agent of
such rescission on the date on which the Affected Lender gives notice of its determination as
described above (which notice of rescission Administrative Agent shall promptly transmit to each
other Lender). Except as provided in the immediately preceding sentence, nothing in this Section
2.18(b) shall affect the obligation of any Lender other than an Affected Lender to make or maintain
Loans as, or to convert Loans to, LIBOR Loans in accordance with the terms hereof.




          (c) Compensation for Breakage or Non-Commencement of LIBOR Periods. Company shall
compensate each Lender, within two (2) Business Days of written request by such Lender (which
request shall set forth the basis for requesting such amounts and a calculation thereof), for all
reasonable losses, expenses and liabilities (including any interest paid by such Lender to lenders
of funds borrowed by it to make or carry its LIBOR Loans and any loss, expense or liability
sustained by such Lender in connection with the liquidation or re-employment of such funds but
excluding loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other
than a default by such Lender) a borrowing of any LIBOR Loan by Company does not occur on a date
specified therefor in a Funding Notice or a telephonic request for borrowing, or a conversion to or
continuation of any LIBOR Loan of Company does not occur on a date specified therefor in a
Conversion/Continuation Notice or a telephonic request for conversion or continuation; (ii) if any
prepayment or other principal payment of, or any conversion of, any of its LIBOR Loans occurs on a
date prior to the last day of a LIBOR Period applicable to that Loan; or (iii) if any prepayment of
any of its LIBOR Loans is not made on any date specified in a notice of prepayment given by
Company.




          (d) Booking of LIBOR Loans. Any Lender may make, carry or transfer LIBOR Loans at,
to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.




          (e) Assumptions Concerning Funding of LIBOR Loans. Calculation of all amounts payable
to a Lender under this Section 2.18 and under Section 2.19 shall be made as though such Lender had
actually funded each of its relevant LIBOR Loans through the purchase of a Eurocurrency deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition of LIBOR Rate in an
amount and currency equal to the amount of such LIBOR Loan and having a maturity comparable to the
relevant LIBOR Period and through the transfer of such Eurocurrency deposit from an offshore office
of such Lender to a domestic office of such Lender in the United States of America;
provided, however, each Lender may fund each of its LIBOR Loans in any manner it
sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating
amounts payable under this Section 2.18 and under Section 2.19.




     2.19. Increased Costs; Capital Adequacy.



          (a) Compensation For Increased Costs and Taxes. Subject to the provisions of Section
2.20 (which shall be controlling with respect to the matters covered thereby), in the event that
any Lender (which term shall include Issuing Bank for purposes of this Section 2.19(a)) shall
determine (which determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation, determination,
guideline or order, or any change therein or in the interpretation, administration or application
thereof (including the introduction of any new law, treaty or governmental rule, regulation or
order), or any determination of a court or Governmental Authority, in each case that becomes
effective after the date hereof, or compliance by such



55









 






Lender with any guideline, request or directive issued or made after the date hereof by any
central bank or other governmental or quasi-governmental authority (whether or not having the force
of law): (i) subjects such Lender (or its applicable lending office) to any additional Tax (other
than any Tax on the overall net income of such Lender) with respect to this Agreement or any of the
other Credit Documents or any of its obligations hereunder or thereunder or any payments to such
Lender (or its applicable lending office) of principal, interest, fees or any other amount payable
hereunder; (ii) imposes, modifies or holds applicable any reserve (including any marginal,
emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits or other liabilities in or for
the account of, or advances or loans by, or other credit extended by, or any other acquisition of
funds by, any office of such Lender (other than any such reserve or other requirements with respect
to LIBOR Loans that are reflected in the definition of LIBOR Rate); or (iii) imposes any other
condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable
lending office) or its obligations hereunder or the London interbank market or the European
interbank market; and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount received or
receivable by such Lender (or its applicable lending office) with respect thereto; then, in any
such case, Company shall pay to such Lender, within five Business Days of receipt of the statement
referred to in the next sentence, such additional amount or amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such Lender in its sole
discretion shall determine) as may be necessary to compensate such Lender on an after-tax basis for
any such increased cost or reduction in amounts received or receivable hereunder; provided,
that neither Company nor any of its Subsidiaries shall be required to compensate any Lender
pursuant to this Section for any increased costs incurred more than 180 days prior to the date that
such Lender notifies Company in writing of the increased costs and of such Lender’s intention to
claim compensation thereof; provided, further, that if the circumstance giving rise
to such increased costs is retroactive, then the 180 day period referred to above shall be extended
to include the period of retroactive effect thereof. Such Lender shall deliver to Company (with a
copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to such Lender under this Section 2.19(a), which statement
shall be conclusive and binding upon all parties hereto absent manifest error.




          (b) Capital Adequacy Adjustment. In the event that any Lender (which term shall
include Issuing Bank for purposes of this Section 2.19(b)) shall have determined that the adoption,
effectiveness, phase-in or applicability after the Closing Date of any law, rule, determination,
guideline, order, or regulation (or any provision thereof) regarding capital adequacy, or any
change therein or in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its applicable lending office) with any guideline, request or
directive regarding capital adequacy (whether or not having the force of law) of any such
Governmental Authority, central bank or comparable agency, has or would have the effect of reducing
the rate of return on the capital of such Lender or any corporation controlling such Lender as a
consequence of, or with reference to, such Lender’s Loans or Revolving Commitments or Letters of
Credit, or participations therein or other obligations hereunder with respect to the Loans or
Letters of Credit to a level below that which such Lender or such controlling corporation could
have achieved but for such adoption, effectiveness, phase-in, applicability, change or compliance
(taking into consideration the policies of such Lender or such controlling corporation with regard
to capital adequacy), then from time to time, within five Business Days after receipt by Company
from such Lender of the statement referred to in the next sentence, Company shall pay to such
Lender such additional amount or amounts as will compensate such Lender or such controlling
corporation on an after-tax basis for such reduction; provided, that neither Company nor
any of its Subsidiaries shall be required to compensate any Lender pursuant to this Section for any
increased costs incurred more than




56









 







180 days prior to the date that such Lender notifies Company in writing of the increased costs
and of such Lender’s intention to claim compensation thereof; provided, further,
that if the circumstance giving rise to such increased costs is retroactive, then the 180 day
period referred to above shall be extended to include the period of retroactive effect thereof.
Such Lender shall deliver to Company (with a copy to Administrative Agent) a written statement,
setting forth in reasonable detail the basis for calculating the additional amounts owed to such
Lender under this Section 2.19(b), which statement shall be conclusive and binding upon all parties
hereto absent manifest error.




     2.20. Taxes; Withholding, etc.



          (a) Payments to Be Free and Clear. All sums payable by or on behalf of any Credit
Party hereunder and under the other Credit Documents shall (except to the extent required by law)
be paid free and clear of, and without any deduction or withholding on account of, any Tax imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding net income taxes
and franchise taxes (imposed in lieu of net income taxes) imposed on Administrative Agent or any
Lender as a result of a present or former connection between Administrative Agent or such Lender
and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision
or taxing authority thereof or therein (other than any such connection arising solely from
Administrative Agent of such Lender having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or any other Credit Document).




          (b) Withholding of Taxes. If any Credit Party or any other Person is required by law
to make any deduction or withholding on account of any such Tax from any sum paid or payable by any
Credit Party to any Agent or any Lender (which term shall include Issuing Bank for purposes of this
Section 2.20(b)) under any of the Credit Documents: (i) Company shall notify Administrative Agent
of any such requirement or any change in any such requirement as soon as Company becomes aware of
it; (ii) Company shall pay any such Tax before the date on which penalties attach thereto, such
payment to be made (if the liability to pay is imposed on any Credit Party) for its own account or
(if that liability is imposed on Administrative Agent or such Lender, as the case may be) on behalf
of and in the name of Administrative Agent or such Lender; (iii) the sum payable by such Credit
Party in respect of which the relevant deduction, withholding or payment is required shall be
increased to the extent necessary to ensure that, after the making of that deduction, withholding
or payment, Administrative Agent or such Lender, as the case may be, receives on the due date a net
sum equal to what it would have received had no such deduction, withholding or payment been
required or made; and (iv) within thirty days after paying any sum from which it is required by law
to make any deduction or withholding, and within thirty days after the due date of payment of any
Tax which it is required by clause (ii) above to pay, Company shall deliver to Administrative Agent
evidence reasonably satisfactory to the other affected parties of such deduction, withholding or
payment and of the remittance thereof to the relevant taxing or other authority; provided, no such
additional amount shall be required to be paid to any Lender under clause (iii) above except (x) to
the extent that any change in any applicable law, treaty or governmental rule, regulation or order,
or any change in the interpretation, administration or application thereof after the date hereof
(in the case of each Lender listed on the signature pages hereof on the Closing Date) or after the
effective date of the Assignment Agreement pursuant to which such Lender became a Lender (in the
case of each other Lender) in any such requirement for a deduction, withholding or payment as is
mentioned therein shall result in an increase in the rate of such deduction, withholding or payment
from that in effect at the date hereof or at the date of such Assignment Agreement, as the case may
be, in respect of payments to such Lender, and (y) to the extent that such Lender’s assignor was
entitled immediately before the assignment and on the effective date of the Assignment Agreement
pursuant to which such Lender became a Lender, to receive additional amounts from any Credit Party
under clause (iii) above; provided




57









 







that no such additional amount shall be required to be paid to any Lender under clause (iii)
above that is attributable to such Lender’s failure to comply with the requirements of Section
2.20(c) or (f), as applicable (except to the extent that such failure is a result of a change in
any applicable law, treaty or governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof after the date hereof). In addition, Company
shall pay any stamp or documentary taxes or any other mortgage-related taxes or excise or property
taxes, charges or similar levies arising from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any other Credit
Document to the relevant taxing or other authority before the date on which penalties attach
thereto, and shall deliver to Administrative Agent evidence satisfactory to the affected Lenders of
such payment and the remittance thereof to the relevant taxing or other authority.




          (c) Evidence of Exemption From U.S. Withholding Tax. Each Lender that is not a United
States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for
U.S. federal income tax purposes (a “Non-U.S. Lender”) as to which payments to be made under this
Agreement or under the Notes are exempt from United States withholding tax under an applicable
statute or tax treaty shall provide to Company and Administrative Agent two (2) copies of a
properly completed and executed IRS Form W-8ECI, Form W-8IMY or Form W-8BEN or other applicable
form, certificate or document prescribed by the Internal Revenue Service or the United States
certifying as to such Non-U.S. Lender’s entitlement to such exemption, or, in the case of a
Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c)
of the Internal Revenue Code with respect to payments of “portfolio interest,” a Certificate Re
Non-Bank Status substantially in the form of Exhibit E to the effect that such Lender is eligible
for an exemption from withholding of U.S. taxes under Section 871(h) or 881(c) of the Internal
Revenue Code and a Form W-8BEN, Form W-8IMY or From W-8ECI (each, a “Certificate Re Non-Bank
Status”) prior to becoming a Lender, or upon the expiration of any Certificate of Exemption
previously provided by such Lender, or upon any change of the applicable lending office of such
Lender that renders such Certificate of Exemption invalid, or upon the occurrence of any other
event requiring a change in such Certificate of Exemption, or at such other time as may be
reasonably required in writing by Company. Any Person that is not a United States Person (as such
term is defined in Section 7701(a)(30) of the Internal Revenue Code) that seeks to become a Lender
under this Agreement shall provide two copies of a Certificate of Exemption to Company and
Administrative Agent prior to becoming a Lender hereunder. No Person that is not a United States
Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code), including any
assignee of a Lender that is an Affiliate or Related Fund of a Lender that is not required to
deliver an Assignment Agreement to Administrative Agent or Company as contemplated by Section
10.6(d), may become a Lender hereunder unless such Person is exempt from United States withholding
tax with respect to all payments hereunder. Notwithstanding anything to the contrary, a Non-U.S.
Lender shall not be required to deliver any form or statement pursuant to this Section 2.20(c) that
such Non-U.S. Lender is not legally able to deliver.




          (d) Each Lender and Administrative Agent shall also use commercially reasonable efforts to
avoid or minimize amounts which might otherwise be payable by Company pursuant to this Section
2.20, except to the extent such Lender or Administrative Agent determines that such efforts would
be disadvantageous to such Lender or Administrative Agent, as determined by such Lender or
Administrative Agent in its respective sole discretion and which determination, if made in good
faith, shall be binding and conclusive on all parties hereto.




          (e) Each assignee of a Lender’s interest in this Agreement shall be bound by this Section
2.20, so that such assignee will have all of the obligations and provide all of the forms and
statements and all indemnities, representations and warranties required to be given under this
Section 2.20. For avoidance of doubt, (i) the provisions of this Section 2.20(e) shall apply to a
transferee or



58









 






assignee of a Lender that is an Affiliate or Related Fund of such Lender that is not required
to deliver an Assignment Agreement to Administrative Agent or Company, as contemplated by Section
10.6(d), and (ii) the only forms required to be given by any such Affiliate or Related Fund of a
Lender under this Section 2.20 are copies of Certificates of Exemption and Internal Revenue Service
Form W-9’s (expressly excluding the applicable Assignment Agreement).




          (f) Prior to becoming a Lender under this Agreement and within fifteen (15) days after a
reasonable written request of Company or Administrative Agent from time to time thereafter, each
Lender other than a Non-U.S. Lender shall deliver to Company and Administrative Agent two duly
completed and signed copies of Internal Revenue Service Form W-9.




          (g) Treatment of Certain Refunds. If Administrative Agent or a Lender determines, in
its sole discretion, that it has received a refund of any Taxes as to which it has been indemnified
by Company or with respect to which Company has paid additional amounts pursuant to this Section
2.20, it shall pay to Company an amount equal to such refund (but only to the extent of indemnity
payments made, or additional amounts paid, by Company under this Section 2.20 with respect to the
Taxes giving rise to such refund), net of all out-of-pocket expenses of Administrative Agent or
such Lender, as the case may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided that Company, upon the
written request of Administrative Agent or such Lender, agrees to repay the amount paid over to
Company (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to Administrative Agent or such Lender in the event Administrative Agent or such Lender
is required to repay such refund to such Governmental Authority. This paragraph shall not be
construed to require Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes that it deems confidential) to Company or any other Person.




     2.21. Obligation to Mitigate. Each Lender (which term shall include Issuing Bank for purposes
of this Section 2.21) agrees that, as promptly as practicable after the officer of such Lender
responsible for administering its Loans or Letters of Credit, as the case may be, becomes aware of
the occurrence of an event or the existence of a condition that would cause such Lender to become
an Affected Lender or that would entitle such Lender to receive payments under Section 2.18, 2.19
or 2.20, it will, to the extent not inconsistent with the internal policies of such Lender and any
applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or
maintain its Credit Extensions, including any Affected Loans, through another office of such
Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof
the circumstances which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such Lender pursuant to
Section 2.18, 2.19 or 2.20 would be materially reduced and if, as determined by such Lender in its
sole discretion, the making, issuing, funding or maintaining of such Credit Extensions through such
other office or in accordance with such other measures, as the case may be, would not otherwise
adversely affect such Revolving Commitments, Loans or the interests of such Lender;
provided, such Lender will not be obligated to utilize such other office pursuant to this
Section 2.21 unless Company agrees to pay all incremental expenses incurred by such Lender as a
result of utilizing such other office as described in clause (i) above. A certificate as to the
amount of any such expenses payable by Company pursuant to this Section 2.21 (setting forth in
reasonable detail the basis for requesting such amount) submitted by such Lender to Company (with a
copy to Administrative Agent) shall be conclusive absent manifest error. Each of Administrative
Agent and each Lender agrees to use commercially reasonable efforts to notify Company as promptly
as reasonably practicable upon its becoming aware that circumstances exist that would cause Company
to become obligated to pay additional amounts pursuant to Sections 2.18, 2.19 and 2.20.



59









 





     2.22. Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the
event that any Lender, other than at the direction or request of any regulatory agency or
Governmental Authority, defaults (a “Defaulting Lender”) in its obligation to fund (a “Funding
Default”) any Revolving Loan or its portion of any unreimbursed payment under Section 2.2(b)(v),
2.3(b)(iv) or (v) or 2.4(d) (in each case, a “Defaulted Loan”), then (a) during any Default Period
with respect to such Defaulting Lender, such Defaulting Lender shall be deemed not to be a “Lender”
for purposes of voting on any matters (including the granting of any consents or waivers) with
respect to any of the Credit Documents; (b) to the extent permitted by applicable law, until such
time as the Default Excess with respect to such Defaulting Lender shall have been reduced to zero,
(i) any voluntary prepayment of the Revolving Loans shall, if Company so directs at the time of
making such voluntary prepayment, be applied to the Revolving Loans of other Lenders as if such
Defaulting Lender had no Revolving Loans outstanding and the Revolving Exposure of such Defaulting
Lender were zero, and (ii) any mandatory prepayment of the Revolving Loans shall, if Company so
directs at the time of making such mandatory prepayment, be applied to the Revolving Loans of other
Lenders (but not to the Revolving Loans of such Defaulting Lender) as if such Defaulting Lender had
funded all Defaulted Loans of such Defaulting Lender, it being understood and agreed that Company
shall be entitled to retain any portion of any mandatory prepayment of the Revolving Loans that is
not paid to such Defaulting Lender solely as a result of the operation of the provisions of this
clause (b); (c) such Defaulting Lender’s Revolving Commitment and outstanding Revolving Loans and
such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage shall be excluded for
purposes of calculating the Revolving Commitment fee payable to Lenders in respect of any day
during any Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall
not be entitled to receive any Revolving Commitment fee pursuant to Section 2.11 with respect to
such Defaulting Lender’s Revolving Commitment in respect of any Default Period with respect to such
Defaulting Lender; and (d) the Total Utilization of Revolving Commitments as at any date of
determination shall be calculated as if such Defaulting Lender had funded all Defaulted Loans of
such Defaulting Lender. No Revolving Commitment of any Lender shall be increased or otherwise
affected, and, except as otherwise expressly provided in this Section 2.22, performance by Company
of its obligations hereunder and the other Credit Documents shall not be excused or otherwise
modified as a result of any Funding Default or the operation of this Section 2.22. The rights and
remedies against a Defaulting Lender under this Section 2.22 are in addition to other rights and
remedies which Company may have against such Defaulting Lender with respect to any Funding Default
and which Administrative Agent or any Lender may have against such Defaulting Lender with respect
to any Funding Default.



     2.23. Removal or Replacement of a Lender. Anything contained herein to the contrary
notwithstanding, in the event that: (a) (i) any Lender (an “Increased-Cost Lender”) shall give
notice to Company that such Lender is an Affected Lender or that such Lender is entitled to receive
payments under Section  2.18 (other than Section 2.18(c)), 2.19 or 2.20, (ii) the circumstances
which have caused such Lender to be an Affected Lender or which entitle such Lender to receive such
payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within
five Business Days after Company’s request for such withdrawal; or (b) (i) any Lender shall become
a Defaulting Lender, (ii) the Default Period for such Defaulting Lender shall remain in effect, and
(iii) such Defaulting Lender shall fail to cure the default as a result of which it has become a
Defaulting Lender within three Business Days after Company’s request that it cure such default; or
(c) in connection with any proposed amendment, modification, termination, waiver or consent with
respect to any of the provisions hereof as contemplated by Section 10.5(b), the consent of
Requisite Lenders shall have been obtained but the consent of one or more of such other Lenders
(each a “Non-Consenting Lender”) whose consent is required shall not have been obtained; then, with
respect to each such Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (the
“Terminated Lender”), Company may, by giving written notice to



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Administrative Agent and any Terminated Lender of its election to do so, elect to cause such
Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding
Loans and its Revolving Commitments, if any, in full to one or more Eligible Assignees reasonably
acceptable to Administrative Agent (each a “Replacement Lender”) in accordance with the provisions
of Section 10.6 and Company shall pay any fees payable thereunder in connection with any such
assignment from an Increased-Cost Lender or a Non-Consenting Lender, and the Defaulting Lender
shall pay fees, if any, payable thereunder in connection with any such assignment from such
Defaulting Lender; provided, (1) on the date of such assignment, the Replacement Lender
shall pay to Terminated Lender an amount equal to the sum of (A) an amount equal to the principal
of, and all accrued interest on, all outstanding Loans of the Terminated Lender, (B) an amount
equal to all unreimbursed drawings that have been funded by such Terminated Lender, together with
all then unpaid interest with respect thereto at such time and (C) an amount equal to all accrued,
but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.11; (2) on the
date of such assignment, Company shall pay any amounts payable to such Terminated Lender pursuant
to Section 2.18(c), 2.19 or 2.20 or otherwise as if it were a prepayment and (3) in the event such
Terminated Lender is a Non-Consenting Lender, each Replacement Lender shall consent, at the time of
such assignment, to each matter in respect of which such Terminated Lender was a Non-Consenting
Lender. Upon the prepayment of all amounts owing to any Terminated Lender and the termination of
such Terminated Lender’s Revolving Commitments, if any, such Terminated Lender shall no longer
constitute a “Lender” for purposes hereof; provided, that Company may not make such
election with respect to any Terminated Lender that is also an Issuing Bank unless, prior to the
effectiveness of such election, Company shall have caused each outstanding Letter of Credit issued
thereby to be cancelled, or to be backstopped or cash collateralized, in each case, in the amount
of 105% of the face amount thereof. Upon the prepayment of all amounts owing to any Terminated
Lender and the termination of such Terminated Lender’s Revolving Commitments, if any, such
Terminated Lender shall no longer constitute a “Lender” for purposes hereof; provided, any
rights of such Terminated Lender to indemnification hereunder shall survive as to such Terminated
Lender.



     2.24. Payment of Obligations. Upon the Maturity Date (whether by acceleration or otherwise)
of any of the Obligations under this Agreement or any of the other Credit Documents, Lenders shall
be entitled to immediate payment of such Obligations.



SECTION 3. CONDITIONS PRECEDENT




     3.1. Closing Date. The obligation of any Lender to make a Credit Extension is subject to the
satisfaction, or waiver in accordance with Section 10.5, of the following conditions:



          (a) Credit Documents. Administrative Agent and Lenders shall have received copies of
each Credit Document originally executed and delivered by each applicable Credit Party.




          (b) Organizational Documents; Incumbency. Administrative Agent shall have received
(i) a copy of each Organizational Document executed and delivered by each Credit Party to the
extent applicable, certified as of a recent date by the appropriate governmental official, if
applicable, each dated the Closing Date or a recent date prior thereto; (ii) signature and
incumbency certificates of the officers of such Person executing the Credit Documents to which it
is a party; (iii) resolutions of the Board of Directors or similar governing body of each Credit
Party approving and authorizing the execution, delivery and performance of this Agreement and the
other Credit Documents to which it is a party or by which it or its assets may be bound as of the
Closing Date, certified as of the Closing Date by an officer as being in full force and effect
without modification or amendment; (iv) a good standing certificate or equivalent (if available)
from the applicable Governmental Authority of each Credit Party’s jurisdiction of incorporation,
organization or formation each dated a recent date prior to the Closing Date



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and (v) such other documents as Administrative Agent may reasonably request. The
organizational structure and capital structure of Parent and its Subsidiaries shall be as set forth
on Schedule 4.1(b).




          (c) Consummation of the Other Transactions.





          (i) All conditions to each of the European AR Factoring Facilities, the European First
Lien Term Loan Agreement and the Second Lien Term Loan Agreement shall have been satisfied
or waived on the Closing Date.




          (ii) Administrative Agent and Lenders shall each have received a fully executed or
conformed copy of the European AR Factoring Facilities, the European First Lien Term Loan
Agreement, the Second Lien Term Loan Agreement, and, in each case, any material documents
executed in connection therewith. The European AR Factoring Facilities, the European First
Lien Term Loan Agreement and the Second Lien Term Loan Agreement shall be in full force and
effect, shall include terms and provisions reasonably satisfactory to Administrative Agent
and Lenders and no provision thereof shall have been modified or waived in any respect
determined by Administrative Agent to be material, in each case without the consent of
Administrative Agent.




          (iii) Company shall have received on or before the Closing Date (A) at least $95
million in the aggregate from the proceeds of the European AR Factoring Facilities and
additional cash repatriated from Foreign Subsidiaries; provided, that none of such
additional repatriated cash shall come from proceeds of the European First Lien Term Loan
Agreement, (B) at least $50 million in the aggregate from the proceeds (prior to effect to
original issue discount thereon) of the European First Lien Term Loan Agreement and (C) at
least $83,750,000 in the aggregate from the proceeds (prior to effect to original issue
discount thereon) of the Second Lien Term Loan Agreement.



          (d) Governmental Authorizations and Consents. Each Credit Party shall have obtained
all Governmental Authorizations and all material consents of other Persons, in each case that are
necessary in connection with the transactions contemplated by the Credit Documents and each of the
foregoing shall be in full force and effect and in form and substance reasonably satisfactory to
Administrative Agent.




          (e) Environmental Reports. Administrative Agent and Lenders shall have completed its
environmental review with results satisfactory to Administrative Agent and shall have received any
existing written reports and other material written information, in form, scope and substance
satisfactory to Administrative Agent, regarding environmental matters relating to the Facilities.




          (f) Financial Statements and Projections. Administrative Agent and Lenders shall have
received (i) unaudited financial statements for the period ended April 27, 2008 and the available
unaudited statements for each monthly period from May 2008 through the month prior to closing and
all such financial statements shall be reasonably satisfactory in form and substance to
Administrative Agent and Lenders, (ii) a proforma closing balance sheet, adjusted to give effect to
the transactions contemplated by the Plan, in form and substance reasonably satisfactory to
Administrative Agent and Lenders, and (iii) projections and supporting documentation with respect
to Parent and its Subsidiaries in form and substance reasonably satisfactory to Administrative
Agent for the period from the current Fiscal Year to December 31, 2011 (to contain monthly
projections for the twelve months after the Closing Date and quarterly projections thereafter,
including projected Excess Availability, as well as actual results for the twelve months prior to
the Closing Date).




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          (g) Collateral. Collateral Agent shall have received satisfactory evidence of the
compliance by each Credit Party of their obligations under the Pledge and Security Agreement and
the other Collateral Documents. All UCC financing statements and searches necessary in connection
with the liens and security interests granted pursuant to the Collateral Documents shall have been
duly authorized, all intellectual property filings shall have been made, all filing and recording
fees and taxes shall have been duly paid and all pledged stock certificates and all other
possessory Collateral shall have been delivered to Collateral Agent (or its bailee) on behalf of
the Secured Parties. Collateral Agent shall have a valid security interest in, and Liens on, the
Collateral covered thereby which security interests and Liens are, to the extent required under the
Collateral Documents, perfected security interests and Liens with the priorities set forth in the
Intercreditor Agreement and the European Intercreditor Agreement (to the extent applicable). Except
with respect to Collateral subject to the post-closing covenants set forth on Schedule 5.13,
Collateral Agent shall have a perfected valid security interests in, and Liens on (i) 100% of the
Capital Stock of each Domestic Subsidiary, and (ii) such percentage of the Capital Stock of each
first-tier Foreign Subsidiary listed on Schedule 3.1(g) pursuant to a Foreign Collateral Agreement
in the applicable jurisdiction for such Foreign Subsidiary, in form and substance reasonably
satisfactory to Administrative Agent, together with related written opinions of counsel to the
Credit Parties as to such matters as Administrative Agent and Lenders may reasonably request.
Except with respect to Collateral subject to the post-closing covenants set forth on Schedule 5.13,
in the case of any Real Estate Assets that are Collateral, Administrative Agent shall have received
title insurance policies, surveys, evidence as to zoning compliance and certificates of occupancy,
all in form and substance reasonably satisfactory to Administrative Agent.




          (h) Evidence of Insurance. Collateral Agent shall have received a certificate from
Company’s insurance broker or other evidence reasonably satisfactory to it that all insurance
required to be maintained pursuant to Section 5.5 is in full force and effect, together with
endorsements naming Collateral Agent, for the benefit of Secured Parties, as additional insured and
loss payee thereunder to the extent required under Section 5.5.




          (i) Opinions of Counsel to Credit Parties. Lenders and their respective counsel shall
have received originally executed copies of the written opinions of Kirkland & Ellis LLP, counsel
for the Credit Parties and such local and foreign counsel for the Credit Parties as the
Administrative Agent shall reasonably request as to such matters as Administrative Agent or Lenders
may reasonably request, dated as of the Closing Date, and otherwise in form and substance
reasonably satisfactory to Administrative Agent and Lenders (and each Credit Party hereby instructs
such counsel to deliver such opinions to Agents and Lenders).




          (j) Fees. Company shall have paid to Agents the fees payable on the Closing Date
referred to in Section 2.11(d) and (f) and all remaining invoiced fees and reasonable out-of-pocket
expenses (including reasonable fees and out-of-pocket expenses of counsel) required to be paid to
the Agents on or before the Closing Date shall have been paid.




          (k) Closing Date Certificate. Company shall have delivered to Administrative Agent an
originally executed Closing Date Certificate, together with all attachments thereto.




          (l) No Litigation. There shall not exist any unstayed action, suit, investigation,
litigation or proceeding or other legal or regulatory developments, pending or threatened in any
court or before any arbitrator or Governmental Authority that, in the reasonable opinion of
Administrative Agent and Lenders, singly or in the aggregate, materially impairs any of the
transactions contemplated by the Credit Documents, or that could reasonably be expected to have a
Material Adverse Effect.




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          (m) Material Adverse Change. There shall not have occurred any event or circumstance
since April 27, 2008 which has resulted in a Material Adverse Effect; provided, however for
purposes of this Section 3.1(m), none of the matters disclosed in the Disclosure Statement filed in
connection with the Plan of Reorganization prior to the date of hereof, shall, in any case, in and
of itself and based solely on facts as disclosed therein (without giving effect to any developments
not disclosed therein), be deemed to constitute a Material Adverse Effect.




          (n) Completion of Proceedings. All partnership, corporate and other proceedings taken
or to be taken in connection with the transactions contemplated hereby and all documents incidental
thereto not previously found reasonably acceptable by Administrative Agent and its counsel shall be
satisfactory in form and substance to Administrative Agent and Lenders and such counsel, and
Administrative Agent and Lenders and such counsel shall have received all such counterpart
originals or certified copies of such documents as Administrative Agent may reasonably request.




          (o) Appraisals. Administrative Agent and Lenders shall have received reasonably
satisfactory appraisals, from third party appraisers reasonably acceptable to the Agents, with
respect to Real Estate Assets (such appraisal to be in conformance with FIRREA appraisal
requirements), and Eligible Aircraft.




          (p) Plan Confirmation and Effectiveness. The Plan confirmed by a final order entered
by the Bankruptcy Court on May 13, 2008 (the “Confirmation Order”), shall not have been stayed by
the Bankruptcy Court or any other court having jurisdiction to issue any such stay. There shall
have been no changes to the Plan from the date of the Confirmation Order other than such changes
reasonably acceptable to Administrative Agent. Moreover, (i) the time to appeal the Confirmation
Order or to seek review, rehearing or certiorari with respect to the Confirmation Order must have
expired, (ii) no appeal or petition for review, rehearing or certiorari with respect to the
Confirmation Order may be pending other than that certain appeal by James W. Korth and (iii) the
Confirmation Order must otherwise be in full force and effect. All conditions to the effectiveness
of the Plan shall have been satisfied or waived in a manner reasonably acceptable to Administrative
Agent and Lenders, and the Plan shall have been consummated or shall be consummated
contemporaneously with the funding of the initial Loans. The ownership, capital, corporate, tax,
organizational and legal structure of Parent and its Subsidiaries shall be consistent with the Plan
and otherwise reasonably satisfactory to Administrative Agent and Lenders.




          (q) Availability. On the Closing Date, after giving effect to any Credit Extensions
made on the Closing Date and payment of all costs and expenses related thereto, the Excess
Availability shall not be less than $55,000,000.




          (r) Control Agreements. Collateral Agent shall have received executed Control
Agreements and lockbox agreements required by Section 5.12, in each case with a satisfactory
financial institution and in form and substance satisfactory to Administrative Agent and Lenders.




          (s) Patriot Act. The Agents and Lenders shall have received all documentation and
other information required by bank regulatory authorities under applicable “know-your-customer” and
anti-money laundering rules and regulations, including the Patriot Act.




          (t) Solvency. The Agents and Lenders shall have received a certificate of the chief
financial officer of Parent and Company in the form of Exhibit N hereto to the effect that both
before and after giving effect to (i) the Loans and Letters of Credit made or issued on the Closing
Date, (ii) the Indebtedness contemplated by the European First Lien Term Loan Agreement, the
European AR





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Factoring Facilities and the Second Lien Term Loan Agreement, (iii) the consummation
and effectiveness of the Plan and (iv) the payment and accrual of all transaction costs in
connection with the foregoing, each of (A) the Credit Parties as a whole, and (B) Parent and its
Subsidiaries as a whole, are Solvent.



Each Lender, by delivering its signature page to this Agreement and funding a Loan on the Closing
Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit
Document and each other document required to be approved by any Agent, Requisite Lenders or
Lenders, as applicable on the Closing Date.




     3.2. Conditions to Each Credit Extension.



          (a) Conditions Precedent. The obligation of each Lender to make any Credit Extension,
or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Closing Date, are
subject to the satisfaction, or waiver in accordance with Section 10.5, of the following additional
conditions precedent:





     (i) Administrative Agent shall have received a fully executed and delivered Funding
Notice;




     (ii) after making the Credit Extensions requested on such Credit Date, the Total
Utilization of Revolving Commitments shall not exceed the Maximum Credit;




     (iii) Administrative Agent shall have received a current Borrowing Base Certificate in
form and substance satisfactory to it;




     (iv) as of such Credit Date, the representations and warranties contained herein and in
the other Credit Documents shall be true and correct in all respects on the Closing Date and
true and correct in all material respects on any other Credit Extension Date (except to the
extent already qualified by materiality which shall be true and correct in all respects) on
and as of that Credit Date to the same extent as though made on and as of that date, except
to the extent such representations and warranties specifically relate to an earlier date, in
which case such representations and warranties shall have been true and correct in all
material respects on and as of such earlier date;




     (v) on or before the date of issuance of any Letter of Credit, Administrative Agent
shall have received all other information required by the applicable Issuance Notice, and
such other documents or information as Issuing Bank may reasonably require in connection
with the issuance of such Letter of Credit; and




     (vi) as of such Credit Date, no event shall have occurred and be continuing or would
result from the consummation of the applicable Credit Extension that would constitute an
Event of Default or a Default.


Any Agent shall be entitled, but not obligated to, request and receive, prior to the making of any
Credit Extension, additional information reasonably requested by the requesting party confirming
the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or such
request is warranted under the circumstances.




          (b) Notices. Any Notice shall be executed by an Authorized Officer in a writing
delivered to Administrative Agent. In lieu of delivering a Notice, Company may give Administrative




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Agent telephonic notice (or electronic mail) by the required time of any proposed borrowing,
conversion/continuation or issuance of a Letter of Credit, as the case may be; provided
each such notice shall be promptly confirmed in writing by delivery of the applicable Notice to
Administrative Agent on or before the applicable date of borrowing, continuation/conversion or
issuance. Neither Administrative Agent nor any Lender shall incur any liability to Company in
acting upon any telephonic notice (or electronic mail) referred to above that Administrative Agent
believes in good faith to have been given by a duly authorized officer or other person authorized
on behalf of Company or for otherwise acting in good faith.




SECTION 4. REPRESENTATIONS AND WARRANTIES




     In order to induce Lenders and Issuing Bank to enter into this Agreement and to make each
Credit Extension to be made thereby, each Credit Party represents and warrants to each Lender and
Issuing Bank, on the Closing Date and on each Credit Date, that the following statements are true
and correct:



     4.1. Organization; Requisite Power and Authority; Qualification. Each Credit Party (a) is
duly organized, validly existing and in good standing under the laws of its jurisdiction of
organization, which as of the Closing Date is as identified in Schedule 4.1(a), (b) has all
requisite corporate, partnership or limited liability company power and authority to own and
operate its properties, to carry on its business as now conducted and as proposed to be conducted,
in each case in all material respects, to enter into the Credit Documents to which it is a party
and to carry out the transactions contemplated thereby, in each case in all material respects, and
(c) is qualified to do business and in good standing in every jurisdiction wherever necessary to
carry out its business and operations, except in jurisdictions where the failure to be so qualified
or in good standing could not be reasonably expected to have a Material Adverse Effect.



     4.2. Capital Stock and Ownership. The Capital Stock of each of Parent and its Subsidiaries
has been duly authorized and validly issued and is fully paid and non-assessable (to the extent
such concept is relevant). Except as set forth on Schedule 4.2, as of the date hereof, there is no
existing option, warrant, call, right, commitment or other agreement to which Parent or any of its
Subsidiaries is a party requiring, and there is no membership interest or other Capital Stock of
Parent or any of its Subsidiaries outstanding which upon conversion or exchange would require, the
issuance by Parent or any of its Subsidiaries of any additional membership interests or other
Capital Stock of Parent or any of its Subsidiaries or other Securities convertible into,
exchangeable for or evidencing the right to subscribe for or purchase, a membership interest or
other Capital Stock of Parent or any of its Subsidiaries. Schedule 4.2 correctly sets forth the
ownership interest of Parent or each of its Subsidiaries in their respective Subsidiaries as of the
Closing Date after giving effect to the borrowings under this Agreement.



     4.3. Due Authorization. The execution, delivery and performance of the Credit Documents have
been duly authorized by all necessary corporate, partnership or limited liability company, as
applicable, action on the part of each Credit Party that is a party thereto.



     4.4. No Conflict. The execution, delivery and performance by Credit Parties of the Credit
Documents to which they are parties and the borrowings under this Agreement and the other
transactions contemplated by the Credit Documents do not and will not (a) violate any provision of
any law or any governmental rule or regulation applicable to any Credit Party, any of the
Organizational Documents of any Credit Party, or any order, judgment or decree of any court or
other agency of government in any jurisdiction binding on any Credit Party except to the extent
such breach or conflict would not reasonably be expected to result in a Material Adverse Effect;
(b) conflict with, result in a material breach of or
constitute (with due notice or lapse of time or both) a default under any Material Contract of
any Credit Party; (c) result in or require the creation or imposition of any Lien upon any of the
properties or assets of



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Credit Party (other than any Liens created under any of the Credit
Documents in favor of Collateral Agent, on behalf of Secured Parties, and Permitted Liens); or
(d) require any material approval of stockholders, members or partners or any material approval or
material consent of any Person under any Material Contract of any Credit Party, except for such
material approvals or material consents which will be obtained on or before the Closing Date and
disclosed in writing to Lenders and such material approvals or material consents required to be
obtained in the ordinary course of business.



     4.5. Governmental Consents. The execution, delivery and performance by Credit Parties of the
Credit Documents to which they are parties and the consummation of the transactions contemplated by
the Credit Documents do not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any Governmental Authority, except for filings and
recordings with respect to the Collateral to be made, or otherwise delivered to Collateral Agent
for filing and/or recordation, as of the Closing Date (or subject to Section 5.13 after the Closing
Date) (including, without limitation, filings necessary to release existing Liens and/or to perfect
the Liens granted to Collateral Agent).



     4.6. Binding Obligation. Each Credit Document has been duly executed and delivered by each
Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit
Party, enforceable against such Credit Party in accordance with its respective terms, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or
limiting creditors’ rights generally or by equitable principles relating to enforceability.



     4.7. Historical Financial Statements. The Historical Financial Statements were prepared in
conformity with GAAP and fairly present, in all material respects, the financial position, on a
consolidated basis, of the Persons described in such financial statements as at the respective
dates thereof and the results of operations and cash flows, on a consolidated basis, of the
entities described therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal year-end adjustments
and, with respect to such unaudited financial statements, the absence of footnotes. As of the
Closing Date, neither Parent nor any of its Subsidiaries has any contingent liability or liability
for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the
Historical Financial Statements or the notes thereto and which in any such case is material in
relation to the business, operations, properties, assets or financial condition of Parent and its
Subsidiaries taken as a whole, except as disclosed in Schedule 4.7.



     4.8. Projections. The projections delivered on the Closing Date pursuant to Section 3.1(f)
have been prepared by Company based upon estimates and assumptions stated therein, all of which
Company believes to be reasonable and fair in light of conditions and facts known to Company as of
the Closing Date and reflect the good faith estimates by Company of the future financial
performance of Parent and its Subsidiaries for the periods set forth therein; provided, however,
that projections contained therein are not to be viewed as factual and no assurances are given by
any Credit Party that the results forecast in any such projections will be realized and that actual
results during the periods covered thereby may differ from the results set forth in such
projections by a material amount.



     4.9. No Material Adverse Change. Since April 27, 2008, no event, circumstance or change has
occurred that has caused, either in any case or in the aggregate, a Material Adverse Effect.



     4.10. No Restricted Junior Payments. Except as set forth in Schedule 4.10, since December 31,
2007, no Credit Party has directly or indirectly declared, ordered, paid or made, or set apart any
sum or property for, any Restricted Junior Payment or agreed to do so except as permitted pursuant
to Section 6.5.



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     4.11. Adverse Proceedings, etc. Except as set forth on Schedule 4.11, there are no unstayed
Adverse Proceedings, individually or in the aggregate, that have a reasonable likelihood of adverse
determination and such determination could reasonably be expected to have a Material Adverse
Effect. No Credit Party (a) is in violation of any applicable laws (including Environmental Laws)
where such violation, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or (b) is subject to or in default with respect to any final judgments,
writs, injunctions, decrees, orders, rules or regulations of any court of competent jurisdiction or
any federal, state, municipal or other governmental department, commission, board, bureau, agency
or instrumentality to which any Credit Party or any of their respective assets is subject, domestic
or foreign, that, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.



     4.12. Payment of Taxes. Except as otherwise permitted under Section 5.3, all national,
federal and other material tax returns and reports of each Credit Party required to be filed by any
of them have been timely filed (including extensions), and all taxes shown on such tax returns to
be due and payable and all assessments, fees and other governmental charges in all applicable
jurisdictions upon any Credit Party and upon their respective properties, assets, income,
businesses and franchises which are due and payable have been paid when due and payable (including
extensions), except for those assessments, fees and other governmental charges which are being
contested in good faith by appropriate proceedings, diligently prosecuted and for which reserves
have been provided as required under GAAP.



     4.13. Properties.



          (a) Title. Each Credit Party has (i) good and marketable title to (in the case of fee
interests in real property), (ii) valid leasehold interests in (in the case of leasehold interests
in real or personal property), and (iii) good title to or rights to use (in the case of all other
personal property), all of their respective material properties and assets reflected in their
respective Historical Financial Statements referred to in Section 4.7 and in the most recent
financial statements delivered pursuant to Section 5.1, in each case except (A) for assets disposed
of since the date of such financial statements in the ordinary course of business or prior to the
Closing Date, (B) Permitted Liens, (C) minor defects in title that do not materially interfere with
each of the Credit Parties’ ability to conduct business as currently conducted or proposed to be
conducted as permitted under this Agreement, or (D) as otherwise permitted under Section 6.10 or
(E) where such invalidity or unenforceability could not reasonably be expected to result in
Material Adverse Effect. Except as permitted by the Credit Documents, all such properties and
assets are free and clear of Liens (other than Permitted Liens).




          (b) Real Estate. As of the Closing Date, Schedule 4.13 contains a true, accurate and
complete list in all material respects of all Real Estate Assets. As of the Closing Date, Schedule
4.13 also describes any purchase options, rights of first refusal or other contractual rights
pertaining to any Real Estate Assets owned by any Credit Party.




     4.14. Environmental Matters. Except for the items set forth on Schedule 4.14, neither Parent
nor any of its Subsidiaries nor any of their respective Facilities or operations are subject to any
outstanding written order, consent decree or settlement agreement with any Person relating to any
Environmental Law, any Environmental Claim, or any Hazardous Materials Activity that, individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect. Except for
the items set forth on Schedule 4.14, neither Parent nor any of its Subsidiaries has received any
letter or written request for information under Section 104 of the Comprehensive Environmental
Response,
Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable state or foreign law, the
subject of which, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect. Except for the items set forth on Schedule 4.14, there are and, to each of
Parent’s and its Subsidiaries’



68









 







actual knowledge, have been, no conditions, occurrences, or
Hazardous Materials Activities which could reasonably be expected to form the basis of an
Environmental Claim against Parent or any of its Subsidiaries that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. Except for the items
set forth on Schedule 4.14, neither Parent or any of its Subsidiaries nor, to any Credit Party’s
actual knowledge, any predecessor of Parent or any of its Subsidiaries has filed any notice under
any Environmental Law indicating past or present treatment of Hazardous Materials at any Facility,
and none of Parent’s nor any of its Subsidiaries’ operations involves the transportation,
treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any
state or foreign equivalent, except as in material compliance with Environmental Law. Compliance
with all current or reasonably foreseeable future requirements pursuant to or under Environmental
Laws could not be reasonably expected to have, individually or in the aggregate, a Material Adverse
Effect. No event or condition has occurred or is occurring with respect to Parent or any of its
Subsidiaries relating to any Environmental Law, any Release of Hazardous Materials, or any
Hazardous Materials Activity which individually or in the aggregate has had, or could reasonably be
expected to have, a Material Adverse Effect. Each Credit Party hereby acknowledges and agrees that
no Agent, Lender or other Secured Party or any of their respective officers, directors, employees,
attorneys, agents and representatives (i) is now, or has ever been, in control of any Facility or
any Credit Party’s affairs, and (ii) has the capacity or the authority through the provisions of
the Credit Documents or otherwise to direct or influence any (A) Credit Party’s conduct with
respect to the ownership, operation or management of any Facility, (B) undertaking, work or task
performed by any employee, agent or contractor of any Credit Party or the manner in which such
undertaking, work or task may be carried out or performed, or (C) compliance with Environmental
Laws. None of the items disclosed on Schedule 4.14 either individually or in the aggregate with all
other environmental liabilities of Parent and its Subsidiaries could be reasonably expected to have
a Material Adverse Effect.



     4.15. No Defaults. Neither Parent nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or conditions contained
in any of its unstayed Contractual Obligations, and no condition exists which, with the giving of
notice or the lapse of time or both, could constitute such a default, except where the
consequences, direct or indirect, of such default or defaults, if any, could not reasonably be
expected to have a Material Adverse Effect.



     4.16. Material Contracts. Schedule 4.16 contains a true, correct and complete list of all the
Material Contracts in effect on the Closing Date, and except as described thereon, all such
Material Contracts, as of the Closing Date, are in full force and effect and no defaults exist
thereunder.



     4.17. Governmental Regulation. No Credit Party is subject to regulation under the Federal
Power Act or the Investment Company Act of 1940 or under any other federal, state or foreign
statute or regulation which may limit its ability to incur the Indebtedness under this Agreement or
which may otherwise render all or any portion of the Obligations unenforceable. No Credit Party is
a “registered investment company” or a company “controlled” by a “registered investment company” or
a “principal underwriter” of a “registered investment company” as such terms are defined in the
Investment Company Act of 1940.



     4.18. Margin Stock. No Credit Party is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or carrying any
Margin Stock. No part of the proceeds of the Loans made to such Credit Party will be used to
purchase or carry any such
Margin Stock or to extend credit to others for the purpose of purchasing or carrying any such
Margin Stock or for any purpose that violates, the provisions of Regulation T, U or X of the Board
of Governors.



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     4.19. Employee Matters. No Credit Party is engaged in any unfair labor practice that could
reasonably be expected to have a Material Adverse Effect. There is (a) no unfair labor practice
complaint pending against any Credit Party, or to the best knowledge of any Credit Party,
threatened against any of them before the National Labor Relations Board or a labor board of any
foreign jurisdiction and no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement that is so pending against any Credit Party or to the best
knowledge of any Credit Party, threatened in writing against any of them, (b) no strike or work
stoppage in existence or threatened involving any Credit Party that could reasonably be expected to
have a Material Adverse Effect, and (c) to the best knowledge of any Credit Party, no union
representation question existing with respect to the employees of any Credit Party and, to the best
knowledge of any Credit Party, no union organization activity that is taking place, except (with
respect to any matter specified in clause (a), (b) or (c) above, either individually or in the
aggregate) such as is not reasonably likely to have a Material Adverse Effect.



     4.20. Employee Benefit Plans. Each Credit Party and each of their respective ERISA Affiliates
are in compliance with all applicable provisions of ERISA and the Internal Revenue Code with
respect to each Employee Benefit Plan, and have performed all their obligations under each Employee
Benefit Plan, except as could not, either individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. Each Employee Benefit Plan which is intended to qualify under
Section 401(a) of the Internal Revenue Code has received a favorable opinion or determination
letter from the Internal Revenue Service indicating that such Employee Benefit Plan is so qualified
and to the knowledge of the Parent nothing has occurred subsequent to the issuance of such
determination letter which would cause such Employee Benefit Plan to lose its qualified status. No
material liability to the PBGC (other than required premium payments), or the Internal Revenue
Service, has been or is reasonably expected to be incurred by any Credit Party or any of their
ERISA Affiliates except as could not, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. As of the most recent valuation date for each
Multiemployer Plan for which the actuarial report is available, the potential liability of Parent,
its Subsidiaries and their respective ERISA Affiliates for a complete withdrawal from such
Multiemployer Plan (within the meaning of Section 4203 of ERISA), when aggregated with such
potential liability for a complete withdrawal from all Multiemployer Plans, based on information
available pursuant to Section 4221(e) of ERISA is not an amount which could reasonably be expected
to have a Material Adverse Effect if required to be paid. Each Credit Party and each of their
ERISA Affiliates have complied in all material respects with the requirements of Section 515 of
ERISA with respect to each Multiemployer Plan and are not in material “default” (as defined in
Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan. There have been no
improper withdrawals or applications of the assets of the Pension Plans or the Employee Benefit
Plans except as could not, either individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect. There are no outstanding disputes concerning the assets or liabilities
of the Pension Plans or the Employee Benefit Plans as of the Closing Date, or with respect to any
such dispute arising after the Closing Date, that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. There is no Pension Plan in respect of
which an event has occurred that could reasonably be expected to require immediate or accelerated
funding in respect of unfunded liabilities or other deficit amounts in excess of $1,000,000,
individually or in the aggregate.



     4.21. Compliance with Statutes, etc. Each Credit Party is in compliance with all applicable
statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental
Authorities, in respect of the conduct of its business and the ownership of its property (including
compliance with all applicable Environmental Laws with respect to any Real Estate Asset or
governing its business and the requirements of any
permits issued under such Environmental Laws
with respect to any



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such Real Estate Asset or the operations of any Credit Party), except for such
non-compliance that, individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect.



     4.22. Disclosure. No written representation or warranty of any Credit Party contained in any
Credit Document or in any other documents, certificates or notice or written statements (other than
the projections) furnished (when furnished and taken as a whole) to Lenders by or on behalf of any
Credit Party for use in connection with the transactions contemplated hereby contains any untrue
statement of a material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not materially misleading in light of the circumstances in
which the same were made. Any projections contained in such materials are based upon good faith
estimates and assumptions believed by Parent to be reasonable at the time made, it being recognized
by Lenders that such projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ from the projected
results and such differences may be material. Notwithstanding anything contained herein to the
contrary, its is hereby acknowledged and agreed by Agents and Lenders, that (i) any projections
contained in such materials are subject to uncertainties and contingencies, which may be beyond
Parent’s, its Subsidiaries’ or Affiliates’ control, (ii) neither Parent nor any of its Subsidiaries
gives any assurances that the projected results in any such projections will be realized and (iii)
the actual results may differ from the projected results set forth in such projections and such
differences may be material. There are no facts known to Parent or any of its Subsidiaries (other
than matters of a general economic nature) that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect and that have not been disclosed herein or
(including as contemplated by Section 5.1(e)(iii) following the date hereof) in such other
documents, certificates and statements furnished to Lenders for use in connection with the
transactions contemplated hereby.



     4.23. Patriot Act. Each Credit Party is in compliance, in all material respects, with the (i)
Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other
enabling legislation or executive order relating thereto, (ii) Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001)
(the “Patriot Act”). No part of the proceeds of the Loans will be used, directly or indirectly,
for any payments to any governmental official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in violation of the United
States Foreign Corrupt Practices Act of 1977, as amended.



     4.24. Solvency. Both before and after giving effect to (a) the Loans and Letters of Credit
made or issued on the Closing Date, (b) the Indebtedness contemplated by the European First Lien
Term Loan Agreement, the European AR Factoring Facilities and the Second Lien Term Loan Agreement,
(c) the consummation and effectiveness of the Plan and (d) the payment and accrual of all
transaction costs in connection with the foregoing, the Credit Parties, taken as a whole, are
Solvent.



     4.25. Senior Indebtedness. The Indebtedness hereunder constitutes senior Indebtedness of
Company.



SECTION 5. AFFIRMATIVE COVENANTS




     Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations (other than contingent obligations for which no claim has been
asserted)
and cancellation, expiration or Cash collateralization or backstopping of all Letters of
Credit, in each case,



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in an amount equal to 105% of the face amount thereof, each Credit Party
shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section
5.



     5.1. Financial Statements and Other Reports. Company will deliver to Administrative Agent
(and Administrative Agent will, after receipt thereof, deliver to each Lender):



          (a) Monthly Reports. Within 30 days after the end of each fiscal month ending after
the Closing Date (other than the month in which financial statements are required to be delivered
pursuant to clause (b) below), the unaudited consolidated and Consolidating balance sheet of Parent
and its Subsidiaries (other than, to the extent not required to be included therein under GAAP, any
Foreign Subsidiary in existence as of the Closing Date with respect to which bankruptcy,
insolvency, administration or similar proceedings have commenced) as at the end of such fiscal
month and the related unaudited consolidated and Consolidating statements of income, stockholders’
equity and cash flows of Parent and its Subsidiaries for such month and for the period from the
beginning of the then current Fiscal Year to the end of such fiscal month, setting forth in each
case in comparative form the corresponding figures for the corresponding periods of the previous
Fiscal Year and the corresponding figures from the Budget, to the extent prepared on a monthly
basis, all in reasonable detail, together with a Financial Officer Certification.




          (b) Annual Financial Statements. In the case of the Fiscal Year ended December 31,
2007, not later than September 30, 2008, and, in the case of each Fiscal Year thereafter, within
120 days after the end of such Fiscal Year, (i) the consolidated and Consolidating balance sheets
of Parent and its Subsidiaries as at the end of such Fiscal Year and the related consolidated and
Consolidating (and with respect to statements of income, unaudited consolidating) statements of
income, stockholders’ equity and cash flows of Parent and its Subsidiaries for such Fiscal Year,
setting forth in each case in comparative form the corresponding figures for the previous Fiscal
Year and the corresponding figures from the Budget, in reasonable detail, together with a Financial
Officer Certification and a Narrative Report with respect thereto; and (ii) with respect to such
consolidated financial statements a report thereon of Deloitte & Touche LLP or other independent
certified public accountants of recognized international standing selected by Parent, and
reasonably satisfactory to Administrative Agent (which report shall be unqualified as to scope of
audit, and shall state that such consolidated financial statements fairly present, in all material
respects, the consolidated financial position of Parent and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed
in such financial statements) and that the examination by such accountants in connection with such
consolidated and Consolidating financial statements has been made in accordance with generally
accepted auditing standards) together with a written statement by such independent certified public
accountants stating that in making the examination necessary therefore, no knowledge was obtained
of any Default or Event of Default relating to the covenants contained in Section 6.8, except as
specified in such certificate (it being understood that such examination extended only to financial
accounting matters and that no special or separate investigation was made with respect to the
existence of Defaults or Events of Default generally).




          (c) Compliance Certificate. Together with each delivery of financial statements of
Parent and its Subsidiaries pursuant to Sections 5.1(a) and 5.1(b), a duly executed and completed
Compliance Certificate, which shall include reasonably detailed calculations of the applicable
financial covenants under Section 6.8.




          (d) Statements of Reconciliation after Change in Accounting Principles. If, as a
result of any change in accounting principles and policies from those used in the preparation of
the
Historical Financial Statements, the consolidated and Consolidating financial statements of
Parent and its




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Subsidiaries delivered pursuant to Section 5.1(a) or 5.1(b) will differ in any
material respect from the consolidated and Consolidating financial statements that would have been
delivered pursuant to such subdivisions had no such change in accounting principles and policies
been made, then, together with the first delivery of such financial statements after such change,
one or more statements of reconciliation by a financial officer of Parent for all such prior
financial statements in form and substance reasonably satisfactory to Administrative Agent.




          (e) Notice of Default. Promptly upon any officer of Parent or any of its Subsidiaries
obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default
or that notice has been given to Parent or any of its Subsidiaries with respect thereto; (ii) that
any Person has given any written notice to Parent or any of its Subsidiaries with respect to any
event or condition that would result in an Event of Default under Section 8.1; or (iii) of the
occurrence of any event or change that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect, a certificate of one of its Authorized Officers specifying
the nature and period of existence of such condition, event or change, or specifying the notice
given and action taken by any such Person and the nature of such claimed Event of Default, Default,
default, event or condition, and what action Parent or its Subsidiaries has taken, is taking and
proposes to take with respect thereto.




          (f) Notice of Litigation. Promptly upon any officer of Parent or any of its
Subsidiaries obtaining knowledge of (i) the institution of, or written threat of, any Adverse
Proceeding not previously disclosed in writing by Company to Lenders, or (ii) any development in
any such Adverse Proceeding that, in the case of either (i) or (ii) if adversely determined, could
be reasonably expected to have a Material Adverse Effect, or seeks to enjoin or otherwise prevent
the consummation of, or to recover any damages or obtain relief as a result of, the transactions
contemplated hereby, written notice thereof together with such other information as may be
reasonably requested by Administrative Agent to enable Lenders and their counsel to evaluate such
matters.




          (g) ERISA Plans. (i) Promptly upon becoming aware of the occurrence of or forthcoming
occurrence of any ERISA Event (other than the events described in clauses (i), (ii) or (ix) of the
definition of ERISA Event), a written notice specifying the nature thereof, what action Parent, any
of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to
take with respect thereto and, when known, any action taken or threatened by the Internal Revenue
Service, the Department of Labor or the PBGC with respect thereto; and (ii) with reasonable
promptness, copies of (1) at the request of Administrative Agent, each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by Parent, any of its Subsidiaries or
any of their respective ERISA Affiliates with the Internal Revenue Service with respect to each
Pension Plan; (2) all notices received by Parent, any of its Subsidiaries or any of their
respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event; and (3)
copies of such other documents or governmental reports or filings relating to any Employee Benefit
Plan as Administrative Agent shall reasonably request.




          (h) Insurance Certificates. As soon as practicable and in any event within 30 days
following any renewal of any insurance policy required to be maintained by Section 5.5, a copy of
an updated certificate of insurance with endorsements, each in compliance with the requirements of
Section 5.5.




          (i) Notice Regarding Material Contracts. Promptly, and in any event within ten
Business Days (i) after any Material Contract of Parent or any of its Subsidiaries is terminated or
amended in a manner that is materially adverse to the Credit Parties (taken as a whole), or (ii)
any new
Material Contract is entered into, a written statement describing such event, with copies of
such material amendments or new contracts, delivered to Administrative Agent.




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          (j) Information Regarding Collateral. Company will furnish to Collateral Agent prompt
written notice of any change (i) in any Credit Party’s legal name, (ii) in any Credit Party’s
organizational structure or jurisdiction of organization or (iii) in any Credit Party’s Federal
Taxpayer Identification Number or state organizational identification number (or equivalent thereof
in any jurisdiction). Company and the Guarantors agree not to effect or permit any change referred
to in the preceding sentence unless it has given the Administrative Agent 30 days notice to allow
the Administrative Agent to make all filings under the Uniform Commercial Code or otherwise in any
jurisdiction whatsoever that are required in order for Collateral Agent to continue at all times
following such change to have a valid, legal and perfected security interest in all the Collateral
and for Collateral Agent at all times following such change to have a valid, legal and perfected
security interest as contemplated in the Collateral Documents. Company also agrees promptly to
notify Collateral Agent in writing if (i) any material portion of the Collateral is damaged or
destroyed or (ii) any Authorized Officer of any Credit Party obtains knowledge thereof, any event
that may have a material adverse effect on the value of the Collateral or any portion thereof, the
ability of any Credit Party or the Collateral Agent to dispose of the Collateral or any portion
thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without
limitation, the levy of any legal process against the Collateral or any portion thereof.




          (k) Other Information. (A) Promptly upon their becoming available, copies of (i) all
financial statements and periodic reports sent or made available generally by Parent or any of its
Subsidiaries to their respective security holders, and (ii) all regular and periodic reports and
all registration statements and prospectuses, if any, filed by Parent or any of its Subsidiaries
with any securities exchange or with the Securities and Exchange Commission or any corresponding
material governmental or private regulatory authority in any jurisdiction, and (B) such other
information with respect to Parent or any of its Subsidiaries as from time to time may be
reasonably requested by Administrative Agent or any Lender (acting through Administrative Agent).




          (l) Certification of Public Information. Concurrently with the delivery of any
document or notice required to be delivered pursuant to this Section 5.1, Company shall indicate in
writing whether such document or notice contains Nonpublic Information. Any document or notice
delivered pursuant to this Section 5.1 shall be deemed to contain Nonpublic Information unless
Company specifies otherwise or such document or notice is filed with the Bankruptcy Court or in
connection with reporting requirements of Securities and Exchange Commission. Each Credit Party
and each Lender acknowledge that certain of the Lenders may be “public-side” Lenders (Lenders that
do not wish to receive material non-public information with respect to Company, its Subsidiaries or
their securities) and, if documents or notices required to be delivered pursuant to this Section
5.1 or otherwise are being distributed through IntraLinks/IntraAgency, Syndtrak or another relevant
website or information platform (the “Platform”), any document or notice which contains Nonpublic
Information (or is deemed to contain Nonpublic Information) shall not be posted on that portion of
the Platform designated for such public side Lenders. If Company has not indicated whether a
document or notice delivered pursuant to this Section 5.1 contains Nonpublic Information,
Administrative Agent reserves the right to post such document or notice solely on that portion of
the Platform designated for Lenders who wish to receive material nonpublic information with respect
to Parent, its Subsidiaries and their Securities.




          (m) Borrowing Base Determination.





          (i) Company shall deliver to the Administrative Agent, not later than 15 days after the
end of each fiscal month, a Borrowing Base Certificate as of the end of such fiscal month
executed by an Authorized Officer of Company, provided, that, during any period (A)
beginning on the day on which (i) the Excess Availability is less than $35,000,000 for 3



74









 







consecutive Business Days or for 7 days in total during any month, or (ii) an Event of
Default has occurred and is continuing and (B) ending on the first day on which (i) if such
reporting was triggered by Section 5.1(m)(i)(A)(i) above, the Excess Availability is greater
than $35,000,000 for more than 20 consecutive days and (ii) no Event of Default has occurred
and is continuing, Company shall deliver, not later than four (4) Business Days after the
last day of each week, an additional Borrowing Base Certificate as of the end of such weekly
period (containing available updated figures for Eligible Receivables on a weekly basis and
containing available updated figures for Eligible Inventory as of the most recent month end)
executed by an Authorized Officer of Company. Together with each monthly delivery of a
Borrowing Base Certificate, Company shall deliver an accounts receivable aging, an inventory
summary (by type and location), an accounts payable aging and such other information as
Administrative Agent may request, all in form and substance reasonably satisfactory to
Administrative Agent.




          (ii) Company shall promptly notify Administrative Agent in writing in the event that at
any time Company receives or otherwise gains knowledge that the Total Utilization of
Revolving Commitments exceed the Borrowing Base as a result of a decrease therein, in which
case such notice shall also include the amount of such excess.



          (n) Projections. As soon as available and in any event not later than 30 days after
the beginning of each Fiscal Year, Company shall deliver to Administrative Agent (i) the annual
business plan of the Credit Parties for such Fiscal Year and (ii) forecasts prepared by management
of Parent (A) for each month in such Fiscal Year and (B) for each other succeeding Fiscal Year
through the Fiscal Year containing the Maturity Date, in each case including in such forecasts (w)
Excess Availability projections, (x) a projected Consolidated balance sheet, income statement and
statement of cash flows, (y) a statement of all of the material assumptions on which such forecasts
are based and (z) substantially the same type of financial information as that contained in the
projections delivered pursuant to Section 3.1(f).




          (o) Other Indebtedness. Promptly after delivery or receipt thereof, copies of all
non-ordinary course material reports and notices delivered or received by an Authorized Officer
under the European First Lien Term Loan Agreement and the Second Lien Term Loan Agreement.




     5.2. Existence. Except as otherwise permitted under Section 6.9 or Section 6.10, each Credit
Party will, and will cause each of its Subsidiaries to, at all times preserve and keep in full
force and effect its existence and all rights and franchises, licenses and permits material to its
business; provided, no Credit Party (other than Company and Parent with respect to
existence) or any of its Subsidiaries shall be required to preserve any such existence, right or
franchise, licenses and permits if the preservation thereof is no longer desirable in the conduct
of the business of such Person, and that the loss thereof could not reasonably be expected to have
a Material Adverse Effect.



     5.3. Payment of Taxes and Claims. Each Credit Party will, and will cause each of its
Subsidiaries to, pay all national, federal and other material Taxes imposed upon it or any of its
properties or assets or in respect of any of its income, businesses or franchises before any
penalty or fine accrues thereon, and all claims (including claims for labor, services, materials
and supplies) for sums that have become due and payable and that by law have or may become a Lien
upon any of its properties or assets, prior to the time when any penalty or fine shall be incurred
with respect thereto; provided, no such Tax or claim need be paid if it is being contested
in good faith by appropriate proceedings promptly instituted
and diligently conducted, so long as (a) adequate reserve or other appropriate provision, as
shall be required in conformity with GAAP, shall have been made therefor, and (b) in the case of a
Tax or claim which has or may become a Lien against any of the Collateral, such contest proceedings
conclusively operate to stay the sale of any portion of the Collateral to satisfy such Tax or
claim. No Credit Party will,



75









 







nor will it permit any of its Subsidiaries to, file or consent to the
filing of any consolidated income tax return with any Person (other than Parent or any of its
Subsidiaries).



     5.4. Maintenance of Properties. Each Credit Party will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear and casualty and condemnation excepted, all material properties used or
useful in the business of Parent and its Subsidiaries and from time to time will make or cause to
be made all appropriate repairs, renewals and replacements thereof in each case in this paragraph,
except where the failure to do so could not reasonably be expected to materially adversely affect
the value or usefulness of such properties, it being understood that this Section 5.4 is not
intended to limit dispositions of assets otherwise permitted by Section 6.9 or Section 6.10.



     5.5. Insurance. Parent will maintain or cause to be maintained, with financially sound and
reputable insurers, such public liability insurance, third party property damage insurance,
business interruption insurance and casualty insurance with respect to liabilities, losses or
damage in respect of the assets, properties and businesses of Parent and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by Persons of established
reputation engaged in similar businesses, in each case in such amounts (giving effect to
self-insurance), with such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for such Persons. Without limiting the generality of the
foregoing, Parent will maintain or cause to be maintained (a) flood insurance with respect to each
Flood Hazard Property that is located in a community that participates in the National Flood
Insurance Program, in each case in compliance with any applicable regulations of the Board of
Governors of the Federal Reserve System, and (b) replacement value casualty insurance on the
Collateral under such policies of insurance, with such insurance companies, in such amounts, with
such deductibles, and covering such risks as are at all times carried or maintained under similar
circumstances by Persons of established reputation engaged in similar businesses. Each such policy
of insurance shall (i) name Collateral Agent, on behalf of Secured Parties as an additional insured
thereunder as its interests may appear and (ii) in the case of each casualty insurance policy,
contain a loss payable clause or endorsement, reasonably satisfactory in form and substance to
Collateral Agent, that names Collateral Agent, on behalf of Lenders as the loss payee thereunder
and provides for at least thirty days’ prior written notice to Collateral Agent of any modification
or cancellation of such policy.



     5.6. Inspections; Collateral Appraisals.



          (a) Each Credit Party will, and will cause each of its Subsidiaries to, permit any authorized
representatives designated by Administrative Agent or Collateral Agent (and shall permit authorized
representatives of any Lender to accompany Administrative Agent or Collateral Agent) to visit and
inspect any of the properties of any Credit Party and any of its respective Subsidiaries, to
inspect, copy and take extracts from its and their financial and accounting records, and to discuss
its and their affairs, finances and accounts with its and their officers and independent public
accountants (provided, that the management of the Company shall be permitted at any such meeting),
and unless an Event of Default has occurred and is continuing, all upon reasonable written notice
and at such reasonable times during normal business hours and as often as may reasonably be
requested (and, after an Event of Default has occurred and is continuing, all upon notice, and
access will not be limited to normal business hours); provided that (except prior to the
occurrence and continuance of any Default or Event of Default) the Credit Parties shall only be
required to reimburse Administrative Agent, the Collateral Agent and the
Lenders for the cost of two such inspections in any Fiscal Year (including internally
allocated fees and out-of-pocket expenses of employees of Administrative Agent and out-of-pocket
expenses of any such representatives retained by Administrative Agent as to which invoices have
been furnished to conduct any such inspection).




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          (b) Company shall conduct, or shall cause to be conducted, at its expense and upon request of
Administrative Agent, and present to Administrative Agent for approval, such appraisals,
investigations and reviews as Administrative Agent shall reasonably request for the purpose of
determining the Borrowing Base, all upon reasonable prior notice and at such times during normal
business hours; provided, that unless an Event of Default shall be continuing (at the time
requested), not more than two (2) field examinations, not more than two (2) appraisals of
Inventory, not more than one (1) appraisal of Real Estate Assets, not more than one (1) appraisal
of Equipment and not more than one (1) appraisal of aircraft shall be required during any
twelve-month period commencing on the Closing Date. Company shall furnish to Administrative Agent
any reasonably available information that Administrative Agent may reasonably request regarding the
determination and calculation of the Borrowing Base including correct and complete copies of any
invoices, underlying agreements, instruments or other documents and the identity of all Account
Debtors in respect of Accounts referred to therein. Except after the occurrence and during the
continuance of an Event of Default, any appraiser (who shall be independent) shall be reasonably
acceptable to the Company.




     5.7. Lenders Meetings. Company will, upon the reasonable request of Administrative Agent or
Requisite Lenders, participate in a meeting of Administrative Agent and Lenders once during each
Fiscal Year to be held at Company’s corporate offices (or at such other location as may be agreed
to by Company and Administrative Agent) at such time as may be agreed to by Company and
Administrative Agent.



     5.8. Compliance with Laws. Each Credit Party will comply, and shall cause each of its
Subsidiaries to comply, with the requirements of all applicable laws, rules, regulations and orders
of any Governmental Authority (including all Environmental Laws), except for such noncompliance
which could not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.



     5.9. Environmental.



          (a) Environmental Disclosure. Company will deliver to Administrative Agent and
Lenders:





          (i) as soon as practicable following receipt thereof, copies of all environmental
audits, investigations, analyses and reports of any kind or character, whether prepared by
personnel of Parent or any of its Subsidiaries or by independent consultants, Governmental
Authorities or any other Persons, with respect to significant environmental matters at any
Facility or with respect to any Environmental Claims, except for such environmental matters
or Environmental Claims that could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect;




          (ii) promptly upon the occurrence thereof, written notice describing in reasonable
detail (1) any unpermitted Release required to be reported to any federal, state or local
governmental or regulatory agency in any jurisdiction under any applicable Environmental
Laws where such Release could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, (2) any remedial action taken by Parent or any other
Person in response to (A) any Hazardous Materials Activities the existence of which could
reasonably be expected to
result in one or more Environmental Claims having, individually or in the aggregate, a
Material Adverse Effect, or (B) any Environmental Claims that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect, and (3)
Parent’s discovery of any occurrence or condition on any real property adjoining or in the
vicinity of any Facility that could



77









 







cause such Facility or any part thereof to be subject to
any material restrictions on the ownership, occupancy, transferability or use thereof under
any Environmental Laws;




          (iii) as soon as practicable following the sending or receipt thereof by Parent or any
of its Subsidiaries, a copy of any and all written communications with respect to (1) any
Environmental Claims that, individually or in the aggregate, could reasonably be expected to
give rise to a Material Adverse Effect, (2) any Release required to be reported to any
federal, state or local governmental or regulatory agency in any jurisdiction, where such
Release could reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, and (3) any request for information from any governmental agency in any
jurisdiction that suggests such agency is investigating whether Parent or any of its
Subsidiaries may be potentially responsible for any Hazardous Materials Activity, where such
investigation or Hazardous Materials Activity could reasonably be expected to have a
Material Adverse Effect;




          (iv) prompt written notice describing in reasonable detail (1) any proposed acquisition
of stock, assets, or property by Parent or any of its Subsidiaries that could reasonably be
expected to (A) expose Parent or any of its Subsidiaries to, or result in, Environmental
Claims that could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or (B) affect the ability of Parent or any of its Subsidiaries to
maintain in full force and effect all Governmental Authorizations required under any
Environmental Laws for their respective operations and such failure could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect, and (2) any
proposed action to be taken by Parent or any of its Subsidiaries to modify current
operations in a manner that could reasonably be expected to subject Parent or any of its
Subsidiaries to any additional material obligations or requirements under any Environmental
Laws, except where such obligations or requirements could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect; and




          (v) with reasonable promptness, such other documents and information as from time to
time may be reasonably requested by Administrative Agent in relation to any matters
disclosed pursuant to this Section 5.9(a).



          (b) Hazardous Materials Activities, Etc. Each Credit Party shall promptly take, and
shall cause each of its Subsidiaries promptly to take, any and all actions necessary to (i) cure
any violation of applicable Environmental Laws by such Credit Party or its Subsidiaries that could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and
(ii) make an appropriate response to any Environmental Claim against such Credit Party or any of
its Subsidiaries and discharge any obligations it may have to any Person thereunder where failure
to do so could reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.




     5.10. Subsidiaries.



          (a) In the event that any Person (other than an Immaterial Subsidiary) becomes a Domestic
Subsidiary, Company shall (i) cause such Subsidiary to become a Guarantor hereunder and a Grantor
under the Pledge and Security Agreement by executing and delivering to Administrative Agent and
Collateral Agent a Counterpart Agreement and a Pledge Supplement (as defined in the Pledge and
Security Agreement) and (ii) take all such actions and execute and deliver, or cause to be executed
and
delivered, all such agreements, including Foreign Collateral Agreements (to the extent
requested by the Administrative Agent or the administrative agent or collateral agent under the
Second Lien Term Loan Agreement), documents, instruments, agreements, and certificates in
connection with granting Liens and perfecting the security interest with respect to such Liens, in
favor of Collateral Agent, for the benefit of



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Secured Parties, under the Pledge and Security
Agreement, including granting a pledge of all of the Capital Stock of each of such new Guarantor’s
directly-owned Domestic Subsidiaries and subject to the Intercreditor Agreement, 65% of the voting
(and 100% of the non-voting) Capital Stock of such Domestic Subsidiary’s first-tier Foreign
Subsidiaries, in each case, together with related written opinions of counsel to the Credit Parties
as to such matters as Administrative Agent may reasonably request and in form and substance
reasonably satisfactory to Administrative Agent. With respect to each such Subsidiary, Company
shall promptly send to Administrative Agent written notice setting forth with respect to such
Person (i) the date on which such Person became a Subsidiary of Company, and (ii) all of the data
required to be set forth in Schedules 4.1 and 4.2 with respect to all Subsidiaries of Company;
provided, (x) such written notice shall be deemed to supplement Schedule 4.1(b) and 4.2 for
all purposes hereof and (y) all actions and deliverables pursuant to this Section 5.10 shall be
completed on or prior to the 15th Business Day after any such Person becomes a Domestic
Subsidiary (or such later date as agreed by the Administrative Agent from time to time); provided,
however, any Foreign Collateral Agreements, foreign filings and related local opinions requested
shall be completed on or prior to the 60th day after any such event occurs (or such later date as
agreed by the Administrative Agent from time to time).




          (b) In the event that any Domestic Subsidiary of Parent that is not a Guarantor ceases to be
an Immaterial Subsidiary, Company shall (i) cause such Subsidiary to become a Guarantor hereunder
and a Grantor under the Pledge and Security Agreement by executing and delivering to Administrative
Agent and Collateral Agent a Counterpart Agreement and a Pledge Supplement (as defined in the
Pledge and Security Agreement) and (ii) take all such actions and execute and deliver, or cause to
be executed and delivered, all such agreements, including Foreign Collateral Agreements (to the
extent requested by the Administrative Agent or the administrative agent or collateral agent under
the Second Lien Term Loan Agreement), documents, instruments, agreements, and certificates in
connection with granting Liens and perfecting the security interest with respect to such Liens, in
favor of Collateral Agent, for the benefit of Secured Parties, under the Pledge and Security
Agreement, including granting a pledge of all of the Capital Stock of each of such new Guarantor’s
directly-owned Domestic Subsidiaries and subject to the Intercreditor Agreement 65% of the voting
(and 100% of the non-voting) Capital Stock of such Domestic Subsidiary’s first-tier Foreign
Subsidiaries, in each case, together with related written opinions of counsel to the Credit Parties
as to such matters as Administrative Agent may reasonably request and in form and substance
satisfactory to Administrative Agent. With respect to each such Subsidiary, Company shall promptly
send to Administrative Agent written notice setting forth with respect to such Person all of the
data required to be set forth in Schedules 4.1 and 4.2 with respect to all Subsidiaries of Company;
provided, (x) such written notice shall be deemed to supplement Schedule 4.1(b) and 4.2 for
all purposes hereof and (y) all actions and deliverables pursuant to this Section 5.10 shall be
completed on or prior to the 15th Business Day after any such Person ceases to be an
Immaterial Subsidiary.




          (c) Upon request by Administrative Agent, Company shall cause all Capital Stock of any
material first-tier Foreign Subsidiary acquired or formed after the Closing Date identified by
Administrative Agent which is subject to a security interest in favor of the Collateral Agent
pursuant to any Credit Document to be subject to a perfected security interest in favor of the
Collateral Agent pursuant to a Foreign Collateral Agreement (to the extent possible) in the
applicable jurisdiction for such Foreign Subsidiary, in form and substance reasonably satisfactory
to Administrative Agent, together with
related written opinions of counsel to the Credit Parties as to such matters as Administrative
Agent may reasonably request and in form and substance reasonably satisfactory to Administrative
Agent.




          (d) With respect to (i) any Real Estate Asset owned in fee simple and having a value in excess
of $1,000,000, (ii) any aircraft or (iii) any other property acquired after the Closing Date by any




79









 







Credit Party that is intended to be subject to the Lien created by any of the Collateral Documents
but is not so subject, the applicable Credit Parties shall, within 30 days of the acquisition
thereof (A) execute and deliver to the Administrative Agent and Collateral Agent, a Mortgage (in
the case of any such Real Estate Asset), an Aircraft Security Agreement (in the case of any such
aircraft) and such amendments or supplements to the relevant Collateral Documents (in the case of
any other property) and, in each case, such other documents as the Administrative Agent or the
Collateral Agent shall deem necessary to grant to the Collateral Agent, a Lien on such Real Estate
Asset, aircraft or other property subject to no Liens other than Permitted Liens, (B) take all
actions necessary to cause such Lien to be duly perfected, including the recordation of any such
Mortgage or Aircraft Security Agreement and the authorization to file financing statements in such
jurisdictions as may be reasonably requested by the Administrative Agent and (C) otherwise take
such actions and execute and/or deliver to the Administrative Agent or Collateral Agent such
documents as the Administrative Agent or the Collateral Agent shall require to confirm the
validity, perfection and priority of the Lien of any new Mortgage, Aircraft Security Agreement or
other Collateral Document (and in the case of Real Estate Assets deliver to the Administrative
Agent and Collateral Agent, title insurance policies, surveys, evidence as to zoning compliance,
certificates of occupancy and local counsel opinions, all in form and substance reasonably
satisfactory to Administrative Agent).




     5.11. Further Assurances. At any time or from time to time upon the reasonable request of
Administrative Agent, each Credit Party will, at its expense, promptly execute, acknowledge and
deliver such further documents and do such other acts and things as Administrative Agent or
Collateral Agent may reasonably request in order to effectuate the transactions contemplated by the
Credit Documents or to grant, preserve, protect or perfect the Liens created by the Collateral
Documents or the validity or priority of any such Lien, all at the reasonable expense of the Credit
Parties. In furtherance and not in limitation of the foregoing, each Credit Party shall take such
actions as Administrative Agent or Collateral Agent may reasonably request from time to time to
ensure that the Obligations are guarantied by the Guarantors and are secured by substantially all
of the assets of the Credit Parties and all of the outstanding Capital Stock of Company and its
Subsidiaries (subject to limitations expressly set forth in the Credit Documents).



     5.12. Control Accounts; Approved Deposit Accounts.



          (a) Each Credit Party shall (i) deposit in an Approved Deposit Account all cash it receives,
(ii) not establish or maintain any Securities Account that is not a Control Account and (iii) not
establish or maintain any Deposit Account other than an Approved Deposit Account; provided,
however, that each Credit Party may (w) maintain payroll, withholding tax and other
fiduciary accounts, (x) maintain other accounts as long as the aggregate balance for all such
Credit Parties in all such other accounts does not exceed $2,000,000 at any time, (y) maintain the
Disbursement Accounts in accordance with clause (e), and (z) maintain any Deposit Account in which
the Company maintains any Investment permitted by Section 6.7(h).




          (b) Each Credit Party shall (i) instruct each Account Debtor or other Person obligated to make
a payment to it under any Account or General Intangible to make payment, or to continue to make
payment, to an Approved Deposit Account and (ii) deposit in an Approved Deposit
Account immediately upon receipt all Proceeds of such Accounts and General Intangibles
received by a Credit Party from any other Person.




          (c) In the event (i) any Credit Party or any Deposit Account Bank shall, after the date
hereof, terminate an agreement with respect to the maintenance of an Approved Deposit Account for
any reason, (ii) Collateral Agent shall demand such termination as a result of the failure of a
Deposit Account




80









 







Bank to comply with the terms of the applicable Deposit Account Control Agreement
or Blocked Account Agreement or (iii) Collateral Agent determines in its discretion, exercised in a
commercially reasonable manner, that the financial condition of a Deposit Account Bank has
materially deteriorated, each Credit Party shall notify all of its respective obligors that were
making payments to such terminated Approved Deposit Account to make all future payments to another
Approved Deposit Account.




          (d) In the event (i) any Credit Party or any Approved Securities Intermediary shall, after the
date hereof, terminate an agreement with respect to the maintenance of a Control Account for any
reason, (ii) Collateral Agent shall demand such termination as a result of the failure of an
Approved Securities Intermediary to comply with the terms of the applicable Securities Account
Control Agreement or (iii) Collateral Agent determines in its discretion, exercised in a
commercially reasonable manner, that the financial condition of an Approved Securities Intermediary
has materially deteriorated, each Credit Party shall notify all of its obligors that were making
payments to such terminated Control Account to make all future payments to another Control Account.




          (e) Collateral Agent shall establish one or more Cash Collateral Accounts with such
depositaries and Securities Intermediaries as Collateral Agent in its sole discretion shall
determine. Each Credit Party acknowledges that each such Cash Collateral Account shall meet the
requirements set forth in the definition of “Cash Collateral Account”. On each Business Day, all
amounts on deposit in any Approved Deposit Account and all Cash amounts on deposit in any Control
Account (other than amounts not exceeding the Disbursement Accounts Minimum Balance Requirement
contained in the Disbursement Accounts (each as defined below)) shall be transferred at the end of
each Business Day to a Cash Collateral Account under control of Collateral Agent and shall be
applied on a daily basis by Administrative Agent to repay, first outstanding Swing Line Loans
(without any reduction of the Revolving Commitment or Swing Line Commitment) and Protective
Advances, on a pro rata basis, to the full extent thereof and, thereafter, to repay outstanding
Revolving Loans (without any reduction of the Revolving Commitment or Swing Line Commitment), on a
pro rata basis, to the full extent thereof and, thereafter, as directed by Company. At any time
when any Loans are outstanding, the Credit Parties shall not accumulate or maintain Cash or Cash
Equivalents in any Deposit Account (including disbursement accounts, the “Disbursement Accounts”)
as of any date of determination in an amount in excess of (i) checks outstanding against such
accounts as of that date, (ii) amounts necessary to meet minimum balance requirements with respect
to such accounts and (iii) $10,000,000 (collectively the “Disbursement Accounts Minimum Balance
Requirement”). Each Credit Party hereby irrevocably waives its rights to direct the application of
all funds in such Cash Collateral Account and none of Parent, Company or any other Credit Party or
Person claiming on behalf of or through Parent, Company or any other Credit Party shall have any
right to demand payment of any funds held in any Cash Collateral Account at any time prior to the
Maturity Date.




     5.13. Post Closing Covenants. Company shall comply with each of the post-closing covenants
set forth on Schedule 5.13.



SECTION 6. NEGATIVE COVENANTS




     Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations (other than contingent obligations for which no claim has been
asserted) and cancellation, expiration or Cash collateralization or backstopping of all Letters of
Credit, in each case, in an amount equal to 105% of the face amount thereof, such Credit Party
shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section
6.



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     6.1. Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly
or indirectly liable with respect to any Indebtedness, except:



          (a) the Obligations;




          (b) (i)(A) Indebtedness of any Guarantor to Company or to any other Guarantor (other than any
Holding Company), or of Company to any Guarantor (other than any Holding Company); and
(B) Indebtedness of any Foreign Subsidiary of Parent that is not a Credit Party to Company or any
Guarantor (other than any Holding Company) in an outstanding principal amount not to exceed
$10,000,000 (less any Investments then outstanding under Section 6.7(b)(iv));
provided, that, (x) no Default or Event of Default shall have occurred and be continuing or
shall be caused thereby, (y) to the extent such Indebtedness is owed to a Credit Party, all such
Indebtedness shall be evidenced by a promissory note subject to a Lien (subject to the priorities
set forth in the Intercreditor Agreement) pursuant to the Pledge and Security Agreement and
delivered to Collateral Agent (or its bailee), (z) to the extent such Indebtedness is owed by a
Credit Party, all such Indebtedness shall be subordinated in right of payment to the payment in
full of the Obligations pursuant to the terms of any applicable promissory notes or an intercompany
subordination agreement that in any such case, is reasonably satisfactory to Administrative Agent;
(ii) Indebtedness of any Subsidiary of Parent that is not a Credit Party to any other Subsidiary of
Parent that is not a Credit Party; (iii) Indebtedness of Dura Automotive Systems do Brazil to
Company in an aggregate outstanding amount not to exceed at any time $1,450,000; and (iv)
Indebtedness of any Credit Party to any Foreign Subsidiary of Parent that is subordinated in right
of payment to the payment in full of the Obligations pursuant to the terms of any applicable
promissory notes or intercompany subordination agreement that, in any such case, is reasonably
satisfactory to Administrative Agent;




          (c) (i) Indebtedness pursuant to the European AR Factoring Facilities, (ii) Indebtedness
pursuant to the European First Lien Term Loan Agreement in an aggregate principal amount not
exceeding €32,247,662.04, (iii) Indebtedness pursuant to the Second Lien Term Loan Agreement in an
aggregate principal amount not exceeding the Second Lien Term Loan Cap Amount (as defined in the
Intercreditor Agreement) and (iv) any Permitted Refinancing in respect of any of the foregoing;




          (d) Indebtedness incurred by Parent or any of its Subsidiaries arising from agreements
providing for indemnification, adjustment of purchase price or similar obligations, or from
guaranties or letters of credit, surety bonds or performance bonds securing the performance of
Parent or any such Subsidiary pursuant to such agreements, in connection with dispositions of any
business, assets or Subsidiary of Parent or any of its Subsidiaries permitted hereunder;




          (e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety,
statutory, appeal or similar obligations incurred in the ordinary course of business;




          (f) Indebtedness in respect of netting services, cash pooling, overdraft protections and
otherwise in connection with deposit accounts;




          (g) guaranties in the ordinary course of business of the obligations of suppliers, customers,
franchisees and licensees of Parent and its Subsidiaries;




          (h) Indebtedness described in Schedule 6.1(h), but not any extensions, renewals or
replacements of such Indebtedness;




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          (i) Indebtedness with respect to Capital Leases and other purchase money Indebtedness of
Credit Parties in an aggregate amount not to exceed at any time $5,000,000 outstanding;
provided, that with respect to purchase money Indebtedness, (i) any such Indebtedness shall be
secured only by the asset (and the proceeds of any disposition thereof) acquired in connection with
the incurrence of such Indebtedness, (ii) any such Indebtedness shall constitute not less than 90%
of the aggregate consideration paid with respect to such asset as of the date of incurrence of such
Indebtedness and (iii) the aggregate consideration paid with respect to such asset shall not exceed
the fair market value thereof;




          (j) Indebtedness with respect to Capital Leases and other purchase money Indebtedness of
Foreign Subsidiaries which are not Credit Parties in an aggregate amount not to exceed at any time
€15,000,000 outstanding; provided, that with respect to purchase money Indebtedness, (i)
any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence
of such Indebtedness, (ii) any such Indebtedness shall constitute not less than 90% of the
aggregate consideration paid with respect to such asset as of the date of incurrence of such
Indebtedness and (iii) the aggregate consideration paid with respect to such asset shall not exceed
the fair market value thereof;




          (k) Indebtedness incurred to finance insurance premiums and owing to the applicable insurance
company providing the applicable policy;




          (l) Indebtedness, to the extent the applicable obligations are Indebtedness, constituting a
Sale and Lease-Back Transaction permitted by Section 6.11;




          (m) Indebtedness of the Credit Parties and their Subsidiaries, including without duplication,
guaranties in respect thereof, in aggregate amount not to exceed at any time $5,000,000
outstanding;




          (n) Indebtedness incurred by Foreign Subsidiaries which are not Credit Parties in connection
with letters of credit issued for the benefit of any Subsidiary of the Company that is not a Credit
Party in an aggregate amount not to exceed €4,000,000;




          (o) Indebtedness existing on the Closing Date under the foreign intercompany notes described
in Schedule 6.1(o);




          (p) Indebtedness consisting of promissory notes issued to current or former directors,
consultants, managers, officers and employees or their spouses or estates in connection with any
compensation plan to purchase or redeem Capital Stock of Parent in an amount not to exceed
$1,000,000 at any one time;




          (q) Indebtedness in respect of workers’ compensation claims, self-insurance obligations,
export or import indemnities or similar instruments, customs bonds, leases, appeal or similar bonds
provided by Credit Party in the ordinary course of its business at any one time outstanding;




          (r) Indebtedness constituting the obligation to make purchase price adjustments and
indemnities in connection with Permitted Acquisitions to the extent permitted by Section 6.9;




          (s) Indebtedness in respect of Hedging Agreements;




          (t) Indebtedness acquired or assumed in a Permitted Acquisition consummated pursuant to
Section 6.9; provided that such Indebtedness was not incurred in contemplation of the consummation
of such Permitted Acquisition; and




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          (u) Indebtedness of Foreign Subsidiaries under factoring programs (other than the European AR
Factoring Facilities) incurred after the Closing Date in an aggregate amount not to exceed
€15,000,000 at any one time outstanding.




     6.2. Liens. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly
or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property
or asset of any kind (including any document or instrument in respect of goods or accounts
receivable) of Parent or any of its Subsidiaries, whether now owned or hereafter acquired, or any
income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any
financing statement or other similar notice of any Lien with respect to any such property, asset,
income or profits under the UCC of any State or under any similar recording or notice statute in
any jurisdiction, except:



          (a) (i) subject to the terms of the Intercreditor Agreement, Liens in favor of Collateral
Agent granted pursuant to any Credit Document, (ii) Liens on assets of any Foreign Subsidiary of
Parent that is not a Credit Party securing the European AR Factoring Facilities, (iii) Liens on
assets of any Foreign Subsidiary of Parent that is not a Credit Party and, subject to the terms of
the European Intercreditor Agreement, a pledge of the Capital Stock of German Parent, securing the
obligations under the European First Lien Term Loan Agreement, (iv) subject to the terms of the
Intercreditor Agreement, Liens on the Collateral securing the obligations under the Second Lien
Term Loan Agreement and (v) Liens on receivables, any related Security and other assets of any
Foreign Subsidiary subject to the factoring programs permitted by Section 6.1(u);



          (b) Liens for Taxes if the obligations with respect to such Taxes are not yet due and payable
or are being contested in good faith by appropriate proceedings promptly instituted and diligently
conducted;




          (c) statutory Liens of landlords, banks (and rights of set-off), of carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other than any such
Lien imposed pursuant to Section 430(k) of the Internal Revenue Code or by ERISA), in each case
incurred in the ordinary course of business (i) for amounts not yet overdue or (ii) for amounts
that are overdue and that (in the case of any such amounts overdue for a period in excess of five
days) are being contested in good faith by appropriate proceedings, so long as such reserves or
other appropriate provisions, if any, as shall be required by GAAP shall have been made for any
such contested amounts;




          (d) Liens (including pledges and depository) incurred in the ordinary course of business in
connection with workers’ compensation, unemployment insurance and other types of social security,
or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, arrangements with utility companies, trade contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations for the payment of
borrowed money or other Indebtedness), so long as no foreclosure, sale or similar proceedings have
been commenced with respect to any portion of the Collateral on account thereof;




          (e) easements, rights-of-way, restrictions, reservations, covenants, encroachments, and other
minor defects or irregularities in title, in each case which do not and will not interfere in any
material respect with the ordinary conduct of the business of Parent or any of its Subsidiaries;




          (f) any interest or title of a lessor or sublessor under any lease of real estate permitted
hereunder;




84









 








          (g) Liens solely on any cash earnest money deposits made by Parent or any of its Subsidiaries
in connection with any letter of intent or purchase agreement or investments permitted hereunder;




          (h) purported Liens evidenced by the filing of precautionary UCC financing statements relating
solely to operating leases of personal property entered into in the ordinary course of business;




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




          (j) any zoning or similar law or right reserved to or vested in any governmental office or
agency to control or regulate the use of any real property;




          (k) licenses of patents, trademarks and other intellectual property rights granted by Parent
or any of its Subsidiaries in the ordinary course of business and not interfering in any respect
with the ordinary conduct of the business of Company or such Subsidiary;




          (l) Liens securing Indebtedness permitted by Section 6.1(i) or (j) secured only by the
applicable property financed by such Indebtedness;




          (m) Liens securing Indebtedness permitted under Section 6.1(k); provided that (i) such Liens
are limited to securing only the unpaid premiums under the applicable insurance policy and (ii)
such Liens only encumber the proceeds of the applicable insurance policy;




          (n) Liens described in Schedule 6.2;




          (o) Liens on assets of Foreign Subsidiaries that are not Credit Parties securing Indebtedness
permitted pursuant to Section 6.1(b)(i)(B) or 6.1(b)(ii);




          (p) Liens in favor of the issuers of the letters of credit issued in accordance with Section
6.1(n);




          (q) Liens incurred pursuant to the JCI Agreements;




          (r) Liens not otherwise permitted hereunder which secure obligations not exceeding in the
aggregate of $2,000,000 at any time; and




          (s) judgment Liens with respect to judgments that do not constitute an Event of Default under
Section 8.1(h).




     6.3. [Reserved.]



     6.4. No Further Negative Pledges. Except with respect to (a) specific property encumbered to
secure payment of particular Indebtedness, including Indebtedness under Section 6.1(c), Section
6.1(i) and Section 6.1(j) and Section 6.1(u), or to be sold pursuant to an executed agreement with
respect to a permitted Asset Sale, (b) restrictions by reason of customary provisions restricting
assignments, mortgages, subletting or other transfers contained in leases, licenses and similar
agreements entered into in the ordinary course of business (provided that such restrictions are
limited to the property or assets secured by such Liens or the property or assets subject to such
leases, licenses or similar agreements, as



85









 







the case may be), (c) any agreement with respect to
Indebtedness of a Foreign Subsidiary which is not a Credit Party permitted pursuant to this
Agreement so long as such prohibitions or limitations are only with respect to the properties and
revenues of such Foreign Subsidiary or any Wholly Owned Foreign Subsidiary of such Foreign
Subsidiary, (d) any agreement with respect to the Indebtedness of any Person existing at the time
such Person becomes a Subsidiary after the date hereof so long as such prohibitions or limitations
are only with respect to the properties and revenues of such Subsidiary and (e) restrictions
applicable to Joint Ventures pursuant to the applicable joint venture agreements so long as such
prohibitions or limitations are only with respect to the properties and revenues of the applicable
Joint Venture, no Credit Party nor any of its Subsidiaries shall enter into any agreement
prohibiting the creation or assumption of any Lien upon any of its properties or assets, whether
now owned or hereafter acquired.



     6.5. Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its
Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or
indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set
apart, any sum for any Restricted Junior Payment except that, (a) so long as no Default or Event of
Default shall be caused thereby, Company may make Restricted Junior Payments to Parent to the
extent necessary to permit Parent to pay reasonable general administrative costs and expenses and
to discharge the consolidated tax liabilities of Parent and its Subsidiaries, in each case, so long
as Parent applies the amount of any such Restricted Junior Payment for such purpose, (b) so long as
no Default or Event of Default is continuing or caused thereby, Company and Parent may make
Restricted Junior Payments in an amount not to exceed $1,000,000 in any Fiscal Year pursuant to and
in accordance with stock option plans, bonus plans or other benefit plans or arrangements for
management or employees of any Credit Party and their Subsidiaries; provided, however, to the
extent such amounts are not used, such amounts shall roll over to subsequent Fiscal Years and such
rolled over amounts may be expended in addition to the foregoing annual limitation, (c) so long as
no Default or Event of Default is continuing or caused thereby, Company may pay dividends to or on
behalf of Parent to repurchase the Capital Stock of Parent owned by members of management who are
no longer employed (and Parent may make such repurchases) so long as the aggregate amount of such
repurchases in any Fiscal Year does not exceed $2,000,000; provided, however, to the extent such
amounts are not used, such amounts shall roll over to subsequent Fiscal Years and such rolled over
amounts may be expended in addition to the foregoing annual limitation, (d) so long as no Default
or Event of Default has occurred and is continuing or would result therefrom, the Credit Parties
may make repayments of intercompany Indebtedness to Foreign Subsidiaries (to the extent that such
intercompany Indebtedness was incurred by the Credit Parties following the Closing Date) in an
amount such that, after giving effect to any particular repayment of intercompany Indebtedness made
after the Closing Date, the aggregate net amount repaid by the Credit Parties shall not at any time
exceed $10,000,000 within a Fiscal Year, and (e) Company may make interest payments on the
Indebtedness outstanding under the Second Lien Term Loan Agreement, so long as, to the extent such
interest is paid in cash, the following conditions shall be satisfied: (i) no Event of Default has
occurred and continuing or would result therefrom, (ii) the average of daily Excess Availability
for the 90 days prior to the making of any such interest payments giving pro forma effect to the
interest payments shall be not less than $50 million and (iii) the projected average of daily
Excess Availability for the 90 days after the closing of any such interest payments giving pro
forma effect to the
interest payments shall be not less than $50 million based on projections presented by Company
to the Administrative Agent and reasonably satisfactory to the Administrative Agent.



     6.6. Restrictions on Subsidiary Distributions. Except as provided herein and under the
European AR Factoring Facilities, the European First Lien Term Loan Agreement and the Second Lien
Term Loan Agreement, no Credit Party shall, nor shall it permit any of its Subsidiaries to, create
or otherwise cause or suffer to exist or become effective any unstayed consensual encumbrance or
restriction



86









 







of any kind on the ability of any Subsidiary of Company to (a) pay dividends or make
any other distributions on any of such Subsidiary’s Capital Stock owned by Company or any other
Subsidiary of Company, (b) repay or prepay any Indebtedness owed by such Subsidiary to Company or
any other Subsidiary of Company, (c) make loans or advances to Company or any other Subsidiary of
Company, or (d) transfer any of its property or assets to Company or any other Subsidiary of
Company other than restrictions (i) in agreements evidencing Indebtedness permitted by Section
6.1(i) that impose restrictions on the property so acquired or financed and (ii) by reason of
customary provisions restricting assignments, subletting or other transfers contained in leases,
licenses, joint venture agreements and similar agreements entered into in the ordinary course of
business, and (iii) that are or were created by virtue of any transfer of, agreement to transfer or
option or right with respect to any property, assets or Capital Stock not otherwise prohibited
under this Agreement.



     6.7. Investments. No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment in any other Person, including without
limitation any Joint Venture, except:



          (a) Investments in Cash and Cash Equivalents;




          (b) (i) Investments existing as of the Closing Date in any Subsidiary, (ii) Investments made
by any Subsidiary of Parent after the Closing Date in Company and any wholly-owned Subsidiaries of
Company that are Guarantors, (iii) Investments made after the Closing Date by any Subsidiary of
Parent that is not a Credit Party in any other Subsidiary of Parent that is not a Credit Party and
(iv) Investments made by any Credit Party in any Foreign Subsidiary in an aggregate amount
outstanding at any one time not to exceed $10,000,000 (less any then outstanding Indebtedness of
Foreign Subsidiaries under Section 6.1(b)(i)(B));




          (c) Investments (i) in any Securities received in satisfaction or partial satisfaction thereof
from financially troubled account debtors and (ii) deposits, prepayments and other credits to
suppliers made in the ordinary course of business consistent with the past practices of Parent and
its Subsidiaries;




          (d) intercompany loans to the extent permitted under Section 6.1(b);




          (e) Investments described in Schedule 6.7.




          (f) Investments by Foreign Subsidiaries that are not Credit Parties in an aggregate amount not
to exceed at any one time outstanding (when aggregated with the outstanding amount of Investments
under Section 6.7(b)(iv)), (x) $6,500,000 in the period from the Closing Date until the end of the
Fiscal Year ended December 31, 2008, (y) $12,250,000 during the Fiscal Year ended December 31,
2009, and (z) $23,750,000 at any time thereafter;




          (g) loans and advances to employees of Parent and its Subsidiaries (i) in the ordinary course
of business not at any time exceeding $25,000 to any one employee or $150,000 in the aggregate and
(ii) to the extent such loans or advances are non-cash to purchase Capital Stock of Parent;




          (h) Investments in any Deposit Account held at the issuer of any other letter of credit
issued in accordance with Section 6.1(n) in connection with the cash collateralization of any such
letter of credit, provided that the aggregate amount of all such Investments pursuant to this
clause (h) shall at no time exceed € 4,000,000;




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          (i) Investments in any Joint Venture in an aggregate amount not to exceed at any time
$2,000,000 outstanding;




          (j) Permitted Acquisitions permitted by Section 6.9;




          (k) Investments constituting earnest money required in connection with a Permitted
Acquisition;




          (l) guarantees of Indebtedness permitted by Section 6.1(m) to the extent constituting
Investments;




          (m) customary indemnification obligations incurred in connection with Permitted Acquisitions
or asset dispositions to the extent otherwise permitted hereunder;




          (n) the formation of new Subsidiaries of the Company, subject to compliance with Section 5.10;




          (o) Permitted Restructuring Transactions;




          (p) any Credit Party may cancel, forgive, set-off, or accept prepayments with respect to debt
or other obligations in the ordinary course of business and to the extent not otherwise prohibited
by the terms of this Agreement;




          (q) Investments consisting of any deferred portion (including promissory notes and non-cash
consideration) of the sales price received by Company or any Subsidiary in connection with any
Asset Sale permitted under Section 6.9;




          (r) Investments constituting (i) accounts receivable arising or acquired, (ii) trade debt
granted, or (iii) deposits made in connection with the purchase price of goods or services, in each
case in the ordinary course of business;




          (s) Investments in the ordinary course of business consisting of (i) endorsements for
collection or deposit, (ii) customary arrangements with customers or (iii) Hedging Agreements not
for speculative purposes; and




          (t) Investments by the Credit Parties in the Proposed Joint Venture in an amount not to exceed
$5,000,000 at any one time outstanding.




          Notwithstanding the foregoing, in no event shall any Credit Party make any Investment which
results in or facilitates in any manner any Restricted Junior Payment not otherwise permitted under
the terms of Section 6.5.




     6.8. Financial Covenants.



          (a) Minimum EBITDA. During any period (i) beginning on the day on which either (A)
the Excess Availability is less than $45,000,000 for a period of three (3) consecutive Business
Days or (B) the Excess Availability is less than $35,000,000, and (ii) in each case, ending on the
first day on which the Excess Availability is greater than or equal to $45,000,000 for more than 20
consecutive days, Consolidated Adjusted EBITDA for the most recently ended applicable period of
four Fiscal Quarters (or such shorter period as the case may be) set forth below shall not be less
than the following amounts




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corresponding to such period (provided that the calculation of
Consolidated Adjusted EBITDA for purposes of this Section 6.8(a) shall exclude Subsidiaries of
Parent that are not Credit Parties):




	 	 	 	 	 
	Period	 	Minimum EBITDA
	July 1, 2008 to September 30, 2008
	 	$	(500,000	)
	July 1, 2008 to December 31, 2008
	 	$	5,750,000	 
	July 1, 2008 to March 31, 2009
	 	$	10,000,000	 
	July 1, 2008 to June 30, 2009
	 	$	24,000,000	 
	October 1, 2008 to September 30, 2009
	 	$	31,000,000	 
	January 1, 2009 to December 31, 2009
	 	$	31,900,000	 
	Each period of four consecutive Fiscal Quarters
thereafter
	 	$	31,900,000	 






          (b) Minimum Excess Availability. The Credit Parties shall not permit the Excess
Availability to be less than $10,000,000 at any time.




          (c) Capital Expenditures. The Credit Parties shall not incur, or permit to be
incurred, Capital Expenditures in the aggregate during each Fiscal Year set forth below in excess
of the maximum amount set forth below (“Base Amount”) opposite such Fiscal Year:




	 	 	 	 	 
	 	 	MAXIMUM CAPITAL
	FISCAL YEAR ENDING	 	EXPENDITURES
	December 31, 2008
	 	$	16,000,000	 
	December 31, 2009
	 	$	16,000,000	 
	December 31, 2010
	 	$	20,000,000	 
	December 31, 2011
	 	$	20,000,000	 





provided, however, that to the extent that actual Capital Expenditures incurred in
any such Fiscal Year shall be less than the maximum amount set forth above for such Fiscal Year
(without giving effect to the carryover permitted by this proviso), 100% of the difference between
such stated maximum amount and such actual Capital Expenditures shall, in addition to any amount
permitted above, be available for Capital Expenditures in the next succeeding Fiscal Year,
provided, that, any Capital Expenditures incurred in any Fiscal Year shall be deemed to
have been incurred first, in respect of amounts permitted pursuant to this
Section 6.8(c) without giving effect to the immediately preceding proviso and then,
in respect of any amount permitted solely by reason of the immediately preceding proviso;
provided, further, an amount equal to not more than 50% of the Base Amount for the
next succeeding Fiscal Year may be
carried back to such Fiscal Year and utilized to make such Capital Expenditures in such Fiscal Year
(it being understood and agreed that (x) no Base Amount may be carried back beyond the Fiscal Year
immediately prior to the Fiscal Year of such Base Amount and (y) the portion of any so carried-back
Base Amount actually utilized in such Fiscal Year shall be deducted from the Base Amount in the
Fiscal Year from which it was carried back).




     6.9. Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor
shall it permit any of its Subsidiaries to, enter into any merger, amalgamation or consolidation,
or



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liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey,
sell, lease or sub-lease (as lessor or sublessor), license, exchange, transfer or otherwise dispose
of, or enter into definitive documentation in respect of any of the foregoing, in one transaction
or a series of transactions, all or any part of its business, assets or property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned
or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other
acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course
of business) the business, property or fixed assets of, or stock or other evidence of beneficial
ownership of, any Person or any division or line of business or other business unit of any Person,
except:



          (a) (i) any Subsidiary of Company may be merged or amalgamated with or into Company or any
Guarantor (other than any Holding Company), or be liquidated, wound up or dissolved, or all or any
part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise
disposed of, in one transaction or a series of transactions, to Company or any Guarantor (other
than any Holding Company); provided, in the case of such a merger, Company or such
Guarantor (other than any Holding Company), as applicable shall be the continuing or surviving
Person, (ii) any Subsidiary of Company that is not a Credit Party may be merged with or into any
other Subsidiary of Company that is not a Credit Party, or be liquidated, wound up or dissolved, or
all or any part of its business, property or assets may be conveyed, sold, leased, transferred or
otherwise disposed of, in one transaction or a series of transactions, to any other Subsidiary of
Company that is not a Credit Party; provided, further that any first-tier Foreign
Subsidiary in which Administrative Agent has a pledge of 100% of the Capital Stock shall not be
merged or amalgamated with or into any directly owned first-tier Foreign Subsidiary in which the
Administrative Agent has a pledge of 65% of the Capital Stock (unless the Capital Stock of the
surviving entity shall be pledged at 100%), or be liquidated, wound up or dissolved, or all or any
part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise
disposed of, in one transaction or a series of transactions, to any directly owned first-tier
Foreign Subsidiary in which the Administrative Agent has a pledge of 65% of the Capital Stock
(unless the Capital Stock of the surviving entity shall be pledged at 100%), (iii) any Holding
Company may be merged or amalgamated with or into any other Holding Company; provided, in
the case of any such merger or amalgamation involving Parent, Parent shall be the surviving Person,
and (iv) any Holding Company (other than Parent) may be liquidated, wound up or dissolved, or all
or any part of its business, property or assets may be conveyed, sold, leased, transferred or
otherwise disposed of, in one transaction or a series of transactions, to any other Holding
Company;




          (b) sales or other dispositions of assets that do not constitute Asset Sales;




          (c) sales or other dispositions by any Subsidiary of Parent that is not a Credit Party in an
aggregate amount not to exceed €20,000,000;




          (d) Asset Sales of obsolete, worn-out or surplus property or property no longer useful or
necessary in the operation of the business and disposed of in the ordinary course of business;




          (e) leases, subleases, licenses or sublicenses of property or abandonment or non-material
intellectual property in the ordinary course of business and which do not materially interfere with
the business of Company and its Subsidiaries;




          (f) Asset Sales by Foreign Subsidiaries which are not Credit Parties in connection with (i)
Sale and Lease-Back Transaction to the extent permitted by Section 6.11, (ii) the European AR
Factoring Facilities and (iii) the factoring programs permitted under Section 6.1(u);




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          (g) Asset Sales to the extent made pursuant to Section 5, 6 and 7 of the Modification
Agreement and Section 3(b)(vi) of the Access Agreement, in each case subject to the terms and
conditions of the JCI Agreements;




          (h) the Credit Parties may sell Cash Equivalents for fair value and use cash for purposes that
are otherwise permitted by the terms of this Agreement in the ordinary course of business;




          (i) Asset Sales set forth on Schedule 6.9; provided, that, any Asset Sale of any Eligible Real
Estate listed thereon shall be an arm’s-length transaction to an unaffiliated third party for
consideration consisting entirely of cash paid at the closing of such transaction, net of customary
transaction costs, fees and expenses payable in connection therewith, and equal to at least the
fair market value of such Eligible Real Estate;




          (j) Permitted Restructuring Transactions;




          (k) Asset Sales, the proceeds of which when aggregated with the proceeds of all other Asset
Sales made within the same Fiscal Year (commencing with the Fiscal Year ending December 31, 2008),
do not exceed $5,000,000; provided, (1) the consideration received for such assets shall be in an
amount at least equal to the fair market value thereof, (2) no less than 75% thereof shall be paid
in Cash and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section
2.14(a);




          (l) issuance of Capital Stock of Parent (including warrants or options or similar interests to
officers, directors and employees pursuant to a stock ownership plan or other compensation plan of
Parent and/or Company);




          (m) Permitted Acquisitions; provided, that, with respect to Permitted Acquisitions by any
Credit Party, the Acquisition Consideration for all such Permitted Acquisitions from the Closing
Date to the date of determination shall not exceed $10,000,000 in the aggregate;




          (n) discounts or forgiveness of accounts receivables in the ordinary course of business or in
connection with collection or compromise thereof shall be permitted provided the Account Debtor is
not an Affiliate;




          (o) any mandatory disposition of real property to a Governmental Authority as a result of a
condemnation of such real property;




          (p) dispositions of property to the extent that (i) such property is exchanged for credit
against the purchase price of similar replacement property or (ii) the proceeds of such Asset Sale
are promptly applied to the purchase price of such replacement property;




          (q) dispositions resulting from a governmental taking, condemnation or other similar action
resulting in receipt of Net Insurance/Condemnation Proceeds; and




          (r) sales of a non-core assets acquired in connection with a Permitted Acquisition which are
not used or useful or are duplicative in the business of the Company or its Subsidiaries.




     6.10. Disposal of Subsidiary Interests. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly sell, assign, pledge or otherwise encumber or dispose of
any Capital Stock of any of its Subsidiaries, except (a) as in existence on the Closing Date and
permitted by Section 6.2, (b) for any sale of all of its interests in the Capital Stock of any of
its Subsidiaries in compliance with



91









 







the provisions of Section 6.9, (c) to qualify directors if
required by applicable law, or (d) subject to the Intercreditor Agreement or the European
Intercreditor Agreement (as applicable), sales of the Capital Stock of any Foreign Subsidiary as
permitted by or required by the European First Lien Term Loan Agreement, the Second Lien Term Loan
Agreement and/or the European AR Factoring Facilities.



     6.11. Sales and Lease-Backs. Except to the extent constituting a Capital Lease permitted by
Section 6.1, no Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any
lease for a term in excess of 12 months, of any property (whether real, personal or mixed), whether
now owned or hereafter acquired, which such Credit Party (a) has sold or transferred or is to sell
or to transfer to any other Person (other than Parent or any of its Subsidiaries), or (b) intends
to use for substantially the same purpose as any other property which has been or is to be sold or
transferred by such Credit Party to any Person (other than Parent or any of its Subsidiaries) in
connection with such lease (a “Sales and Lease-Back Transaction”). Notwithstanding any of the
foregoing to the contrary, the Foreign Subsidiaries of Parent may enter into Sale and Lease-Back
Transaction with respect to assets of Foreign Subsidiaries so long as the aggregate proceeds of all
such sales does not exceed €20,000,000; provided, however, that for so long as any obligations
remain outstanding under the European First Lien Term Loan Agreement, 100% of such proceeds (other
than €3,000,000 of such proceeds) shall be used to pay or prepay such obligations outstanding under
the European First Lien Term Loan Agreement.



     6.12. Transactions with Shareholders and Affiliates. No Credit Party shall, nor shall it
permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property or the rendering of
any service) with any Affiliate of Parent on terms that are less favorable to Parent or that
Subsidiary, as the case may be, than those that might be obtained at the time from a Person who is
not such a holder or Affiliate; provided, the foregoing restriction shall not apply to
(a) any transaction between Credit Parties; (b) any transaction between any Subsidiary of Company
which is not a Credit Party and any other Subsidiary of Company which is not a Credit Party; (c)
the indemnification of and reasonable and customary fees paid to members of the board of directors
(or similar governing body) of Parent and its Subsidiaries; (d) compensation arrangements for
officers and other employees of Parent and its Subsidiaries entered into in the ordinary course of
business; (e) transactions permitted pursuant to Sections 6.1, 6.5, 6.7 and 6.9; and (f)
transactions described in Schedule 6.12.



     6.13. Conduct of Business. From and after the Closing Date, no Credit Party shall, nor shall
it permit any of its Subsidiaries to, engage in any business other than (i) the businesses engaged
in by such Credit Party on the Closing Date and similar, related corollary or complementary
businesses and (ii) such other lines of business as may be consented to by Requisite Lenders. The
Holding Companies shall not engage in any business operations or activities (other than (A)
performance of their respective obligations and activities under the Credit Documents and the
Second Lien Term Loan Agreement and related loan documents, (B) making Restricted Junior Payments
and Investments to the extent permitted under Sections 6.5 and 6.7 and (C) activities required to
maintain their respective existence and to comply with law), or hold any property other than
Capital Stock of their Subsidiaries



     6.14. Modifications of Material Indebtedness, Organizational Documents and Certain Other
Agreements; Etc. No Credit Party shall (i) amend, modify or otherwise change (or permit the
amendment, modification or other change in any manner of) any of the provisions of any of its or
its Subsidiaries’ Indebtedness individually or in the aggregate in excess of $5,000,000 (other than
intercompany Indebtedness in accordance with this Agreement) or of any instrument or agreement
(including, without limitation, any purchase agreement, indenture, loan agreement or security
agreement) relating to any such Indebtedness if such amendment, modification or change would
shorten the final



92









 







maturity or average life to maturity of, or require any payment to be made
earlier than the date originally scheduled on, such Indebtedness, would increase the interest rate
applicable to such Indebtedness by more than 3% (other than the imposition of any default rate of
interest and any interest paid in kind), would change the subordination provision, if any, of such
Indebtedness, or would otherwise be materially adverse to the Lenders or the issuer of such
Indebtedness in any respect; provided, however, that, with respect to the Second Lien Term Loan
Agreement (and any related loan documents), no amendment, modification or other change shall be
made except as permitted in the Intercreditor Agreement, (ii) except for the Obligations and
voluntary prepayments of intercompany Indebtedness not otherwise prohibited by this Agreement, make
any voluntary or optional payment, prepayment, redemption, defeasance, sinking fund payment or
other acquisition for value of any of its or its Subsidiaries’ Indebtedness (including, without
limitation, by way of depositing money or securities with the trustee therefor before the date
required for the purpose of paying any portion of such Indebtedness when due), or refund,
refinance, replace or exchange any other Indebtedness for any such Indebtedness (except to the
extent such Indebtedness is otherwise expressly permitted by Section 6.1), or make any payment,
prepayment, redemption, defeasance, sinking fund payment or repurchase of any outstanding
Indebtedness as a result of any asset sale, change of control, issuance and sale of debt or equity
securities or similar event, or give any notice with respect to any of the foregoing; provided,
however, that, with respect to the Second Lien Term Loan Agreement (and any related loan
documents), none of the foregoing actions described in this clause (ii) shall take place except as
permitted in the Intercreditor Agreement, (iii) except as permitted by Section 6.9, amend, modify
or otherwise change its name, jurisdiction of organization, organizational identification number or
FEIN or (iv) amend, modify or otherwise change its certificate of incorporation or bylaws (or other
similar organizational documents), including, without limitation, by the filing or modification of
any certificate of designation, or any agreement or arrangement entered into by it, with respect to
any of its Capital Stock (including any shareholders’ agreement), or enter into any new agreement
with respect to any of its Capital Stock, except any such amendments, modifications or changes or
any such new agreements or arrangements pursuant to this clause (iv) that either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect.



     6.15. Fiscal Year. No Credit Party shall, nor shall it permit any of its Subsidiaries to
change its Fiscal Year-end from December 31.



SECTION 7. GUARANTY




     7.1. Guaranty of the Obligations. Subject to the provisions of Section 7.2, Guarantors
jointly and severally hereby irrevocably and unconditionally guaranty to Administrative Agent for
the ratable benefit of the Beneficiaries the due and punctual payment in full of all Obligations
when the same shall become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a), or any
equivalent provision in any applicable jurisdiction) (collectively, the “Guaranteed Obligations”).



     7.2. Contribution by Guarantors. All Guarantors desire to allocate among themselves
(collectively, the “Contributing Guarantors”), in a fair and equitable manner, their obligations
arising
under this Guaranty. Accordingly, in the event any payment or distribution is made on any
date by a Guarantor (a “Funding Guarantor”) under this Guaranty such that its Aggregate Payments
exceeds its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution
from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing
Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with
respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the
ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor to (ii)
the aggregate of the Fair Share



93









 







Contribution Amounts with respect to all Contributing Guarantors
multiplied by (b) the aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations Guaranteed. “Fair Share Contribution
Amount” means, with respect to a Contributing Guarantor as of any date of determination, the
maximum aggregate amount of the obligations of such Contributing Guarantor under this Guaranty that
would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the United States Code or any comparable
applicable provisions of state or foreign law; provided, solely for purposes of calculating
the “Fair Share Contribution Amount” with respect to any Contributing Guarantor for purposes of
this Section 7.2, any assets or liabilities of such Contributing Guarantor arising by virtue of any
rights to subrogation, reimbursement or indemnification or any rights to or obligations of
contribution hereunder shall not be considered as assets or liabilities of such Contributing
Guarantor. “Aggregate Payments” means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (1) the aggregate amount of all payments and distributions made
on or before such date by such Contributing Guarantor in respect of this Guaranty (including,
without limitation, in respect of this Section 7.2), minus (2) the aggregate amount of all payments
received on or before such date by such Contributing Guarantor from the other Contributing
Guarantors as contributions under this Section 7.2. The amounts payable as contributions hereunder
shall be determined as of the date on which the related payment or distribution is made by the
applicable Funding Guarantor. The allocation among Contributing Guarantors of their obligations as
set forth in this Section 7.2 shall not be construed in any way to limit the liability of any
Contributing Guarantor hereunder. Each Guarantor is a third party beneficiary to the contribution
agreement set forth in this Section 7.2.



     7.3. Payment by Guarantors. Subject to Section 7.2, Guarantors hereby jointly and severally
agree, in furtherance of the foregoing and not in limitation of any other right which any
Beneficiary may have at law or in equity against any Guarantor by virtue hereof, that upon the
failure of Company to pay any of the Guaranteed Obligations when and as the same shall become due,
whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a), or any equivalent provision in any
applicable jurisdiction), Guarantors will upon written demand pay, or cause to be paid, in Cash, to
Administrative Agent for the ratable benefit of Beneficiaries, an amount equal to the sum of the
unpaid principal amount of all Guaranteed Obligations then due as aforesaid, accrued and unpaid
interest on such Guaranteed Obligations (including interest which, but for Company becoming the
subject of a case under the Bankruptcy Code or other similar legislation in any jurisdiction, would
have accrued on such Guaranteed Obligations, whether or not a claim is allowed against Company for
such interest in the related bankruptcy case) and all other Guaranteed Obligations then owed to
Beneficiaries as aforesaid.



     7.4. Liability of Guarantors Absolute. Each Guarantor agrees that to the extent permitted
by applicable law its obligations hereunder are irrevocable, absolute, independent and
unconditional and shall not be affected by any circumstance which constitutes a legal or equitable
discharge of a guarantor or surety other than payment or performance of the Guaranteed Obligations.
In furtherance of the
foregoing and without limiting the generality thereof, to the extent permitted by applicable
law, each Guarantor agrees as follows:



          (a) this Guaranty is a guaranty of payment when due and not of collectibility. This Guaranty
is a primary obligation of each Guarantor and not merely a contract of surety;




          (b) Administrative Agent may enforce this Guaranty upon the occurrence and continuance of an
Event of Default notwithstanding the existence of any dispute between Company and any Beneficiary
with respect to the existence of such Event of Default;




94









 








          (c) the obligations of each Guarantor hereunder are independent of the obligations of Company
and the obligations of any other guarantor (including any other Guarantor) of the obligations of
Company, and a separate action or actions may be brought and prosecuted against such Guarantor
whether or not any action is brought against Company or any of such other guarantors and whether or
not Company is joined in any such action or actions;




          (d) payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall in
no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the Guaranteed
Obligations which has not been paid. Without limiting the generality of the foregoing, if
Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant
to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such
Guarantor from its covenant to pay the portion of the Guaranteed Obligations that is not the
subject of such suit, and such judgment shall not, except to the extent satisfied by such
Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of
the Guaranteed Obligations;




          (e) any Beneficiary, upon such terms as it deems appropriate, without notice or demand and
without affecting the validity or enforceability hereof or giving rise to any reduction,
limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time
to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change
the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise,
release or discharge, or accept or refuse any offer of performance with respect to, or
substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate
the payment of the same to the payment of any other obligations; (iii) request and accept other
guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the
Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind,
waive, alter, subordinate or modify, with or without consideration, any security for payment of the
Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation
of any Person (including any other Guarantor) with respect to the Guaranteed Obligations;
(v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary
in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against any such security, in
each case as such Beneficiary in its discretion may determine consistent herewith or the applicable
Hedge Agreement and any applicable security agreement, including foreclosure on any such security
pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale
is commercially reasonable, and even though such action operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of any Guarantor against Company or any
security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under
the Credit Documents or the Hedge Agreements; and




          (f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable
and shall not be subject to any reduction, limitation, impairment, discharge or termination for
any reason (other than payment in full of the Guaranteed Obligations (other than contingent
obligations for which no claim has been asserted)), including the occurrence of any of the
following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any
failure or omission to assert or enforce or agreement or election not to assert or enforce, or the
stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or
enforcement of, any claim or demand or any right, power or remedy (whether arising under the Credit
Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guaranteed
Obligations or any agreement relating thereto, or with respect to any other guaranty of or security
for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or
modification of, or any consent to departure from, any of the terms or provisions




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(including
provisions relating to events of default) hereof, any of the other Credit Documents, any of the
Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty
or security for the Guaranteed Obligations, in each case whether or not in accordance with the
terms hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other
guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any
time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of
payments received from any source (other than payments received pursuant to the other Credit
Documents or any of the Hedge Agreements or from the proceeds of any security for the Guaranteed
Obligations, except to the extent such security also serves as collateral for indebtedness other
than the Guaranteed Obligations) to the payment of indebtedness other than the Guaranteed
Obligations, even though any Beneficiary might have elected to apply such payment to any part or
all of the Guaranteed Obligations; (v) any Beneficiary’s consent to the change, reorganization or
termination of the corporate structure or existence of Company or any of its Subsidiaries and to
any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or
continue perfection of a security interest in any collateral which secures any of the Guaranteed
Obligations; (vii) any defenses, set-offs or counterclaims which Company may allege or assert
against any Beneficiary in respect of the Guaranteed Obligations, including failure of
consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and
satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act
or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an
obligor in respect of the Guaranteed Obligations (other than payment or performance of the
Guaranteed Obligations in full in Cash).




     7.5. Waivers by Guarantors. To the extent permitted by applicable law, each Guarantor hereby
waives, for the benefit of Beneficiaries: (a) any right to require any Beneficiary, as a condition
of payment or performance by such Guarantor, to (i) proceed against Company, any other guarantor
(including any other Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceed
against or exhaust any security held from Company, any such other guarantor or any other Person,
(iii) proceed against or have resort to any balance of any Deposit Account or credit on the books
of any Beneficiary in favor of Company or any other Person, or (iv) pursue any other remedy in the
power of any Beneficiary whatsoever; (b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of Company or any other Guarantor including any
defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed
Obligations or any agreement or instrument relating thereto or by reason of the cessation of the
liability of Company or any other Guarantor from any cause other than payment in full of the
Guaranteed Obligations; (c) any defense based upon any statute or rule of law which provides that
the obligation of a surety must be neither larger in amount nor in other respects more burdensome
than that of the principal; (d) any defense based upon any Beneficiary’s errors or omissions in the
administration of the Guaranteed Obligations, except behavior which amounts to bad faith; (e) (i)
any principles or provisions of law, statutory or otherwise, which are or might be in conflict with
the terms hereof and any legal or equitable discharge of such Guarantor’s obligations hereunder,
(ii) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or
the enforcement hereof, (iii) any rights to set-offs, recoupments and counterclaims, and
(iv) promptness, diligence and any
requirement that any Beneficiary protect, secure, perfect or insure any security interest or
lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of
protest, notices of dishonor and notices of any action or inaction, including acceptance hereof,
notices of default hereunder, the Hedge Agreements or any agreement or instrument related thereto,
notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement
related thereto, notices of any extension of credit to Company and notices of any of the matters
referred to in Section 7.4 and any right to consent to any thereof; and (g) any defenses or
benefits that may be derived from or afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms hereof.



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     7.6. Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed Obligations
(other than contingent obligations for which no claim has been asserted) shall have been paid in
full and all Letters of Credit shall have expired or been cancelled, each Guarantor hereby waives
any claim, right or remedy, direct or indirect, that such Guarantor now has or may hereafter have
against Company or any other Guarantor or any of its assets in connection with this Guaranty or the
performance by such Guarantor of its obligations hereunder, in each case whether such claim, right
or remedy arises in equity, under contract, by statute, under common law or otherwise and including
without limitation (a) any right of subrogation, reimbursement or indemnification that such
Guarantor now has or may hereafter have against Company with respect to the Guaranteed Obligations,
(b) any right to enforce, or to participate in, any claim, right or remedy that any Beneficiary now
has or may hereafter have against Company, and (c) any benefit of, and any right to participate in,
any collateral or security now or hereafter held by any Beneficiary. In addition, until the
Guaranteed Obligations (other than contingent obligations for which no claim has been asserted)
shall have been indefeasibly paid in full and the Commitments terminated and all Letters of Credit
shall have expired or been cancelled, each Guarantor shall withhold exercise of any right of
contribution such Guarantor may have against any other guarantor (including any other Guarantor) of
the Guaranteed Obligations, including, without limitation, any such right of contribution as
contemplated by Section 7.2. Each Guarantor further agrees that, to the extent the waiver or
agreement to withhold the exercise of its rights of subrogation, reimbursement, indemnification and
contribution as set forth herein is found by a court of competent jurisdiction to be void or
voidable for any reason, any rights of subrogation, reimbursement or indemnification such Guarantor
may have against Company or against any collateral or security, and any rights of contribution such
Guarantor may have against any such other guarantor, shall be junior and subordinate to any rights
any Beneficiary may have against Company, to all right, title and interest any Beneficiary may have
in any such collateral or security, and to any right any Beneficiary may have against such other
guarantor. If any amount shall be paid to any Guarantor on account of any such subrogation,
reimbursement, indemnification or contribution rights at any time when all Guaranteed Obligations
(other than contingent obligations for which no claim has been asserted) shall not have been
irrevocably paid in full, such amount shall be held in trust for Administrative Agent on behalf of
Beneficiaries and shall promptly be paid over to Administrative Agent for the benefit of
Beneficiaries to be credited and applied against the Obligations, whether matured or unmatured, in
accordance with the terms hereof.



     7.7. Subordination of Other Obligations. Any Indebtedness of Company or any Guarantor now or
hereafter held by any Guarantor (the “Obligee Guarantor”) is hereby subordinated in right of
payment to the Guaranteed Obligations, and any such Indebtedness collected or received by the
Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in trust
for Administrative Agent on behalf of Beneficiaries and shall promptly be paid over to
Administrative Agent for the benefit of Beneficiaries to be credited and applied against the
Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of
the Obligee Guarantor under any other provision hereof.



     7.8. Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect
until all of the Guaranteed Obligations (other than contingent obligations for which no claim has
been asserted) shall have been paid in full and the Commitments terminated and all Letters of
Credit shall have expired or been cancelled. Each Guarantor hereby irrevocably waives any right to
revoke this Guaranty as to future transactions giving rise to any Guaranteed Obligations.



     7.9. Authority of Guarantors or Company. It is not necessary for any Beneficiary to inquire
into the capacity or powers of any Guarantor or Company or the officers, directors or any agents
acting or purporting to act on behalf of any of them.



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     7.10. Financial Condition of Company. Any Credit Extension may be made to Company or
continued from time to time, and any Hedge Agreements may be entered into from time to time, in
each case without notice to or authorization from any Guarantor regardless of the financial or
other condition of Company at the time of any such grant or continuation or at the time such Hedge
Agreement is entered into, as the case may be. No Beneficiary shall have any obligation to
disclose or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the
financial condition of Company. Each Guarantor has adequate means to obtain information from
Company on a continuing basis concerning the financial condition of Company and its ability to
perform its obligations under the Credit Documents and the Hedge Agreements, and each Guarantor
assumes the responsibility for being and keeping informed of the financial condition of Company and
of all circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations. Each
Guarantor hereby waives and relinquishes any duty on the part of any Beneficiary to disclose any
matter, fact or thing relating to the business, operations or conditions of Company now known or
hereafter known by any Beneficiary.



     7.11. Bankruptcy, etc.



          (a) Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed
Obligations which accrues after the commencement of any bankruptcy, reorganization or insolvency
case or proceeding (or, if interest on any portion of the Guaranteed Obligations ceases to accrue
by operation of law by reason of the commencement of such case or proceeding, such interest as
would have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not
been commenced) shall be included in the Guaranteed Obligations. Guarantors will permit any
trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or
similar Person to pay Administrative Agent, or allow the claim of Administrative Agent in respect
of, any such interest accruing after the date on which such case or proceeding is commenced.




          (b) In the event that all or any portion of the Guaranteed Obligations are paid by Company,
the obligations of Guarantors hereunder shall continue and remain in full force and effect or be
reinstated, as the case may be, in the event that all or any part of such payment(s) are rescinded
or recovered directly or indirectly from any Beneficiary as a preference, fraudulent transfer or
otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed
Obligations for all purposes hereunder.




     7.12. Discharge of Guaranty Upon Sale of Guarantor. If all of the Capital Stock of any
Guarantor or any of its successors in interest hereunder shall be sold or otherwise disposed of
(including by merger or consolidation) in accordance with the terms and conditions hereof, the
Guaranty of such Guarantor or such successor in interest, as the case may be, hereunder shall
automatically be discharged and released without any further action by any Beneficiary or any other
Person effective as of the time of such Asset Sale. Administrative Agent agrees to provide evidence
in form and substance reasonably acceptable to it of such release upon the reasonable request and
at the expense of Company.



     7.13. Indemnity. In addition to the guarantee specified in this Section 7 and without
duplication of Section 10.3 (and, mutatis mutandis, subject to the same limitations), the
Guarantors agree to indemnify and save the Beneficiaries harmless from and against all costs,
losses, expenses and damages it may suffer as a result or consequence of any inability by the
Beneficiaries to recover the ultimate balance due or remaining unpaid to the Beneficiaries on
account of the Guaranteed Obligations, including, without limitation, legal fees incurred by or on
behalf of the Beneficiaries which result from any action instituted on the basis of this Agreement.



SECTION 8. EVENTS OF DEFAULT




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     8.1. Events of Default. If any one or more of the following conditions or events shall have
occurred and be continuing:



          (a) Failure to Make Payments When Due. Failure by Company to pay (i) when due any
installment of principal of any Loan, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; (ii) when due any amount payable to
Issuing Bank in reimbursement of any drawing under a Letter of Credit; or (iii) any interest on any
Loan or any fee within 5 days after the due date or any other amount due hereunder within 10 days
after the date due; or




          (b) Default in Other Agreements. (i) Failure of any Credit Party or any of their
respective Subsidiaries to pay when due any principal of or interest on or any other amount payable
in respect of one or more items of Indebtedness (in case of the Credit Parties, other than
Indebtedness referred to in Section 8.1(a)) and other Indebtedness of Subsidiaries which are not
Credit Parties, in an individual principal amount of $5,000,000 or more or with an aggregate
principal amount of $10,000,000 or more, in each case beyond the grace period, if any, provided
therefor; or (ii) breach or default by any Credit Party or any of its Subsidiaries with respect to
any other material term of (1) one or more items of such Indebtedness in the individual or
aggregate principal amounts referred to in clause (i) above or (2) any loan agreement, mortgage,
indenture or other agreement relating to such item(s) of Indebtedness, in each case beyond the
grace period, if any, provided therefor, if the effect of such breach or default is to cause, or to
permit the holder or holders of that Indebtedness (or a trustee on behalf of such holder or
holders), to cause, such Indebtedness to become or be declared due and payable (or redeemable)
prior to its stated maturity or the stated maturity of any underlying obligation, as the case may
be; or




          (c) Breach of Certain Covenants. Failure of any Credit Party to perform or comply
with any term or condition contained in Section 2.6, Section 5.1(e), Section 5.1(m), Section 5.2,
Section 5.3, Section 5.5, Section 5.6, Section 5.8, Section 5.12, or Section 6; or




          (d) Breach of Representations, etc. Any representation, warranty, certification or
other statement made or deemed made by any Credit Party in any Credit Document or in any statement
or certificate at any time given by any Credit Party or any of its Subsidiaries in writing pursuant
hereto or thereto or in connection herewith or therewith shall be false in any material respect as
of the date made or deemed made; or




          (e) Other Defaults Under Credit Documents. Any Credit Party shall default in the
performance of or compliance with any term contained herein or any of the other Credit Documents,
other than any such term referred to in any other Section of this Section 8.1, and (x) with respect
to any other subsection of Section 5.1 not listed in clause (c) above, such default shall not have
been remedied or waived within five (5) days after the earlier of (i) an officer of such Credit
Party becoming aware of such default or (ii) receipt by Company of notice from Administrative Agent
or any Lender of such default and
(y) with respect to all other instances, such default shall not have been remedied or waived
within thirty (30) days after the earlier of (i) an officer of such Credit Party becoming aware of
such default or (ii) receipt by Company of notice from Administrative Agent or any Lender of such
default; or




          (f) Involuntary Bankruptcy; Appointment of Receiver, etc. Other than with respect to
Immaterial Subsidiaries, (i) a court of competent jurisdiction shall enter a decree or order for
relief or similar relief in respect of Parent or any of Parent’s Subsidiaries in an involuntary
case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law
(domestic or foreign) now or hereafter in effect, which decree or order is not stayed; or any other
similar relief shall be granted under any applicable federal, state or foreign law; or (ii) an
involuntary case shall be commenced




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against Parent or any of Parent’s Subsidiaries under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law (domestic or
foreign) now or hereafter in effect; or a decree or order of a court having jurisdiction shall have
been entered for the appointment of a receiver, interim receiver, receiver-manager, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over Parent or any of
Parent’s Subsidiaries, or over all or a substantial part of its property; or there shall have
occurred the involuntary appointment of an interim receiver, trustee or other custodian of Parent
or any of Parent’s Subsidiaries for all or a substantial part of its property; or a warrant of
attachment, execution or similar process shall have been issued against any substantial part of the
property of Parent or any of its Subsidiaries, and any such event described in this clause (ii)
shall continue for sixty (60) days without having been dismissed, bonded or discharged; or




          (g) Voluntary Bankruptcy; Appointment of Receiver, etc. Other than with respect to
Immaterial Subsidiaries, (i) Parent or any of Parent’s Subsidiaries shall have an order for relief
entered with respect to it or shall commence a voluntary case under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law (domestic or foreign) now or hereafter
in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the
appointment of or taking possession by a receiver, interim receiver, receiver-manager, trustee or
other custodian of all or a substantial part of its property; or Parent or any of Parent’s
Subsidiaries shall make any assignment for the benefit of creditors; or (ii) Parent or any of
Parent’s Subsidiaries shall be unable, or shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due; or the board of directors (or similar
governing body) of Parent or any of Parent’s Subsidiaries (or any committee thereof) shall adopt
any resolution or otherwise authorize any action to approve any of the actions referred to herein
or in Section 8.1(f); or




          (h) Judgments and Attachments. Any unstayed money judgment, writ or warrant of
attachment or similar process by a court of competent jurisdiction involving (i) in any individual
case an amount in excess of $2,500,000 or (ii) in the aggregate at any time an amount in excess of
$10,000,000 (in either case to the extent not covered by insurance as to which a solvent insurance
company has acknowledged coverage) shall be entered or filed against Parent or any of its
Subsidiaries or any of their respective assets and shall remain undischarged, unvacated, unbonded
or unstayed for a period of thirty (30) days (or in any event enforcement proceedings shall have
been commenced by any creditor upon any such judgment, order, award or settlement); or




          (i) (i) There shall occur one or more ERISA Events which individually or in the aggregate
results in or might reasonably be expected to result in liability of Parent, any of its
Subsidiaries or any of their respective ERISA Affiliates in excess of $5,000,000 during the term
hereof; or (ii) there exists any fact or circumstance that reasonably could be expected to result
in the imposition of a Lien or security interest under Section 430(k) of the Internal Revenue Code
or under ERISA; or




          (j) Change of Control. A Change of Control shall occur; or




          (k) Guaranties, Collateral Documents and other Credit Documents. At any time after
the execution and delivery thereof, (i) the Guaranty for any reason, other than the satisfaction in
full of all Obligations, shall cease to be in full force and effect (other than in accordance with
its terms) or shall be declared to be null and void or any Guarantor shall repudiate its
obligations thereunder, (ii) this Agreement or any Collateral Document ceases to be in full force
and effect (other than by reason of a release of Collateral in accordance with the terms hereof or
thereof or the satisfaction in full of the Obligations in accordance with the terms hereof) or
shall be declared null and void, or Collateral Agent shall not have or shall cease to have a valid
and perfected Lien in any Collateral with value in excess of




100









 







$250,000 purported to be covered by
the Collateral Documents with the priority required by the relevant Collateral Document, in each
case for any reason other than the failure of Collateral Agent or any Secured Party to take any
action within its control, or (iii) any Credit Party shall contest the validity or enforceability
of any Credit Document, or the Liens and claim priorities provided for in the Credit Documents, in
writing or deny in writing that it has any further liability, including with respect to future
advances by Lenders, under any Credit Document to which it is a party; or




          (l) one or more of Parent and its Subsidiaries shall have entered into one or more consent or
settlement decrees or agreements or similar arrangements with a Governmental Authority or one or
more judgments, orders, decrees or similar actions shall have been entered against one or more of
Parent and its Subsidiaries based on or arising from the violation of or pursuant to any
Environmental Law, or the generation, storage, transportation, treatment, disposal or Release and,
in connection with any of the foregoing, Parent and its Subsidiaries are likely to incur
liabilities in excess of $5,000,000 in the aggregate (to the extent not covered by insurance as to
which a solvent insurance company acceptable to the Administrative Agent has acknowledged
coverage);



THEN, (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g)
automatically, and (2) upon the occurrence of any other Event of Default, at the request of (or
with the consent of) Requisite Lenders, upon written notice to Company by Administrative Agent, (A)
the Commitments and the obligation of Issuing Bank to issue any Letter of Credit shall immediately
terminate, (B) each of the following shall immediately become due and payable, in each case without
presentment, demand, protest or other requirements of any kind, all of which are hereby expressly
waived by each Credit Party: (I) the unpaid principal amount of and accrued interest on the Loans
(II) provide cash collateral in an amount equal to 105% of the maximum amount that may at any time
be drawn under all Letters of Credit then outstanding (regardless of whether any beneficiary under
any such Letter of Credit shall have presented, or shall be entitled at such time to present, the
drafts or other documents or certificates required to draw under such Letters of Credit), and (III)
all other Obligations; provided, the foregoing shall not affect in any way the obligations
of Lenders under Section 2.3(b)(v) or Section 2.4(e); (C) Administrative Agent may (subject to
Section 9.8(b)(ii)) cause Collateral Agent to enforce any and all Liens and security interests
created pursuant to Collateral Documents; and (D) Administrative Agent shall direct Company to pay
(and Company hereby agrees upon receipt of such notice, or upon the occurrence of any Event of
Default specified in Sections 8.1(f) and (g), to pay) to Administrative Agent such additional
amounts of cash as reasonably requested by Issuing Bank, to be held as security for Company’s
reimbursement obligations in respect of Letters of Credit then outstanding. In addition to the
remedies set forth above, Administrative Agent and Collateral Agent may exercise any other remedies
provided for by the Credit Documents in accordance with the terms hereof and thereof or any other
remedies provided by applicable law.




     8.2. Actions in Respect of Letters of Credit.



          At any time (i) upon the Maturity Date, (ii) after the Maturity Date when the aggregate funds
on deposit in Cash Collateral Accounts shall be less than 105% of the aggregate amount of all
outstanding Letters of Credit, (iii) as may be required by Section 2.15(b), Company shall pay to
Administrative Agent in immediately available funds at Administrative Agent’s office referred to in
Section 10.1, for deposit in a Cash Collateral Account, (x) in the case of clauses (i) and (ii)
above, the amount required to that, after such payment, the aggregate funds on deposit in the Cash
Collateral Accounts equals or exceeds 105% of the sum of all outstanding Letters of Credit and
(y) in the case of clause (iii) above, the amount required by Section 2.15(b). Administrative
Agent may, from time to time after funds are deposited in any Cash Collateral Account, apply funds
then held in such Cash Collateral Account to the payment of any amounts, in accordance with Section
2.15(b), as shall have become or




101









 







shall become due and payable by Company to Issuing Banks or
Lenders in respect of the Letters of Credit. Administrative Agent shall promptly give written
notice of any such application; provided, however, that the failure to give such
written notice shall not invalidate any such application.




SECTION 9. AGENTS




     9.1. Appointment of Agents. GE Capital is hereby appointed Administrative Agent and
Collateral Agent hereunder and under the other Credit Documents and each Lender and Issuing Bank
hereby authorizes Administrative Agent and Collateral Agent to act as its agent in accordance with
the terms hereof and the other Credit Documents. Each Agent hereby agrees to act upon the express
conditions contained herein and the other Credit Documents, as applicable. The provisions of this
Section 9 are solely for the benefit of Agents, Lenders and Issuing Banks and (except as expressly
provided in Sections 9.7 and 9.8) no Credit Party shall have any rights as a third party
beneficiary of any of the provisions thereof. In performing its functions and duties hereunder,
each Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to
have assumed any obligation towards or relationship of agency or trust with or for Company or any
of its Subsidiaries.



     9.2. Powers and Duties. Each Lender irrevocably authorizes each Agent to take such action on
such Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other
Credit Documents as are specifically delegated or granted to such Agent by the terms hereof and
thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each
Agent shall have only those duties and responsibilities that are expressly specified herein and the
other Credit Documents. Each Agent may exercise such powers, rights and remedies and perform such
duties by or through its agents or employees. No Agent shall have, by reason hereof or any of the
other Credit Documents, a fiduciary relationship in respect of any Lender; and nothing herein or
any of the other Credit Documents, expressed or implied, is intended to or shall be so construed as
to impose upon any Agent any obligations in respect hereof or any of the other Credit Documents
except as expressly set forth herein or therein. Except as expressly set forth herein and in the
other Credit Documents, Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to any Credit Party or any of their
respective Subsidiaries or any account debtor that is communicated to or obtained by any other
Lender or any of their Affiliates in any capacity. Each of Syndication Agent and Documentation
Agent shall have no obligations or duties whatsoever in such capacity under this Agreement or any
other Credit Document and shall incur no liability hereunder or thereunder in such capacity.



     9.3. General Immunity.



          (a) No Responsibility for Certain Matters. No Agent shall be responsible to any
Lender for the execution, effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency hereof or any other Credit Document or for any representations, warranties, recitals or
statements made
herein or therein or made in any written or oral statements or in any financial or other
statements, instruments, reports or certificates or any other documents furnished or made by any
Agent to Lenders or by or on behalf of any Credit Party to any Agent or any Lender in connection
with the Credit Documents and the transactions contemplated thereby or for the financial condition
or business affairs of any Credit Party or any other Person liable for the payment of any
Obligations, nor shall any Agent be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements contained in any of
the Credit Documents or as to the use of the proceeds of the Loans or as to the existence or
possible existence of any Event of Default or Default or to make any disclosures with respect to
the foregoing. Anything contained herein to the contrary notwithstanding,




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Administrative Agent
shall not have any liability arising from confirmations of the amount of outstanding Loans or the
Letter of Credit Usage or the component amounts thereof.




          (b) Exculpatory Provisions. No Agent nor any of its officers, partners, directors,
employees or agents shall be liable to Lenders for any action taken or omitted by any Agent under
or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross
negligence or willful misconduct. Each Agent shall be entitled to refrain from any act or the
taking of any action (including the failure to take an action) in connection herewith or any of the
other Credit Documents or from the exercise of any power, discretion or authority vested in it
hereunder or thereunder unless and until such Agent shall have received instructions in respect
thereof from Requisite Lenders (or such other Lenders as may be required to give such instructions
under Section 10.5) or, in the case of Collateral Agent, in accordance with the Pledge and Security
Agreement, Intercreditor Agreement or other applicable Collateral Document, and, upon receipt of
such instructions from Requisite Lenders (or such other Lenders, as the case may be) or in
accordance with the Pledge and Security Agreement, Intercreditor Agreement or other applicable
Collateral Document, as the case may be, such Agent shall be entitled to act or (where so
instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance
with such instructions. Without prejudice to the generality of the foregoing, (i) each Agent shall
be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or
document believed by it to be genuine and correct and to have been signed or sent by the proper
Person or Persons, and shall be entitled to rely and shall be protected in relying on opinions and
judgments of attorneys (who may be attorneys for Company and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender shall have any right of
action whatsoever against any Agent as a result of such Agent acting or (where so instructed)
refraining from acting hereunder or any of the other Credit Documents in accordance with the
instructions of Requisite Lenders (or such other Lenders as may be required to give such
instructions under Section 10.5) or, in the case of Collateral Agent, in accordance with the Pledge
and Security Agreement, Intercreditor Agreement or other applicable Collateral Document, as the
case may be.




          (c) Delegation of Duties. Administrative Agent may perform any and all of its duties
and exercise its rights and powers under this Agreement or under any other Credit Document by or
through any one or more sub-agents appointed by Administrative Agent. Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Affiliates. The exculpatory, indemnification and other provisions of this
Section 9.3 and of Section 9.6 shall apply to any sub-agent and Affiliates of Administrative 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. All of the rights,
benefits, and privileges (including the exculpatory and indemnification provisions) of this Section
9.3 and of Section 9.6 shall apply to any such sub-agent and to the Affiliates of any such
sub-agent, and shall apply to their respective activities as sub-agent as if such sub-agent and
Affiliates were named herein. Notwithstanding anything herein to the contrary, with respect to
each sub-agent appointed by Administrative Agent, (i) such sub-agent shall be a third party
beneficiary under this Agreement with respect to all such rights, benefits and privileges
(including exculpatory rights and rights to indemnification) and shall have all of the rights and
benefits of a third party beneficiary, including an independent right of action to enforce such
rights, benefits and privileges (including exculpatory rights and rights to indemnification)
directly, without the consent or joinder of any other Person, against any or all of the Credit
Parties and the Lenders, (ii) such rights, benefits and privileges (including exculpatory rights
and rights to indemnification) shall not be modified or amended without the consent of such
sub-agent, and (iii) such sub-agent shall only have obligations to Administrative Agent and not to
any Credit Party, Lender




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or any other Person and no Credit Party, Lender or any other Person shall
have any rights, directly or indirectly, as a third party beneficiary or otherwise, against such
sub-agent.




     9.4. Agents Entitled to Act as Lender. The agency hereby created shall in no way impair or
affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its
individual capacity as a Lender hereunder. With respect to its participation in the Loans and the
Letters of Credit, each Agent shall have the same rights and powers hereunder as any other Lender
and may exercise the same as if it were not performing the duties and functions delegated to it
hereunder, and the term “Lender” shall, unless the context clearly otherwise indicates, include
each Agent in its individual capacity. Any Agent and its Affiliates may accept deposits from, lend
money to, own securities of, and generally engage in any kind of banking, trust, financial advisory
or other business with Company or any of its Affiliates as if it were not performing the duties
specified herein, and may accept fees and other consideration from Company for services in
connection herewith and otherwise without having to account for the same to Lenders.



     9.5. Lenders’ Representations, Warranties and Acknowledgment.



          (a) Each Lender represents and warrants that it has made its own independent investigation of
the financial condition and affairs of Company and its Subsidiaries in connection with Credit
Extensions hereunder and that it has made and shall continue to make its own appraisal of the
creditworthiness of Company and its Subsidiaries. No Agent shall have any duty or responsibility,
either initially or on a continuing basis, to make any such investigation or any such appraisal on
behalf of Lenders or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at any time or times
thereafter, and no Agent shall have any responsibility with respect to the accuracy of or the
completeness of any information provided to Lenders.




          (b) Each Lender, by delivering its signature page to this Agreement shall be deemed to have
acknowledged receipt of, and consented to and approved, each Credit Document and each other
document required to be approved by any Agent, Requisite Lenders or Lenders, as applicable on the
Closing Date. Notwithstanding anything herein to the contrary, each Lender and Agent also
acknowledges that the Lien and security interest granted to Collateral Agent pursuant to the Pledge
and Security Agreement and any other Collateral Documents and that the exercise of any right or
remedy by Collateral Agent are, in each case, subject to the provisions of the Intercreditor
Agreement and, to the extent applicable, the European Intercreditor Agreement. In the event of a
conflict or any inconsistency between the terms of the Intercreditor Agreement and, to the extent
applicable, the European Intercreditor Agreement, on the one hand, and the Pledge and Security
Agreement or any other Collateral Documents, on the other hand, the terms of the Intercreditor
Agreement and, to the extent applicable, the European Intercreditor Agreement, shall govern and
control.




     9.6. Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees
to indemnify each Agent, to the extent that such Agent shall not have been reimbursed by any Credit
Party, for and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including reasonable counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted
against such Agent in exercising its powers, rights and remedies or performing its duties hereunder
or under the other Credit Documents or otherwise in its capacity as such Agent in any way relating
to or arising out of this Agreement or the other Credit Documents; provided, no Lender
shall be liable for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross
negligence or willful misconduct. If any indemnity furnished to any Agent for any purpose



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shall,
in the opinion of such Agent, be insufficient or become impaired, such Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished; provided, in no event shall this sentence require any
Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action,
judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof;
and provided further, this sentence shall not be deemed to require any Lender to
indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence.




     9.7. Successor Administrative Agent and Collateral Agent. Administrative Agent or Collateral
Agent may resign at any time by giving thirty days’ prior written notice thereof to Lenders and
Company, and Administrative Agent or Collateral Agent may be removed at any time with cause by an
instrument or concurrent instruments in writing delivered to Company and Administrative Agent or
Collateral Agent, as applicable, and signed by Requisite Lenders and without cause by an instrument
or concurrent instruments in writing delivered to Company and Administrative Agent or Collateral
Agent, as applicable, and signed by Lenders holding at least 66% of the aggregate Revolving
Commitments or Loans then outstanding. Upon any such notice of resignation or any such removal,
Requisite Lenders shall have the right to appoint a successor Administrative Agent or successor
Collateral Agent, as applicable, and if no Default or Event of Default shall have occurred and be
continuing, with the consent of Company, such consent not to be unreasonably withheld or delayed.
Upon the acceptance of any appointment as Administrative Agent or Collateral Agent hereunder by a
successor Administrative Agent or successor Collateral Agent, that successor Administrative Agent
or successor Collateral Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring or removed Administrative Agent or the retiring or
removed Collateral Agent, as applicable, and the retiring or removed Administrative Agent or the
retiring or removed Collateral Agent, as applicable, shall promptly (i) transfer to such successor
Administrative Agent or successor Collateral Agent, as applicable, all sums, Securities and other
items of Collateral held under the Collateral Documents, together with all records and other
documents reasonably necessary or appropriate in connection with the performance of the duties of
the successor Administrative Agent or successor Collateral Agent, as applicable, under the Credit
Documents, and (ii) execute and deliver to such successor Administrative Agent or successor
Collateral Agent, as applicable, such amendments to financing statements, and take such other
actions, as may be reasonably necessary or appropriate in connection with the assignment to such
successor Administrative Agent or successor Collateral Agent, as applicable, of the security
interests created under the Collateral Documents, whereupon such retiring or removed Administrative
Agent or such retiring or removed Collateral Agent, as applicable, shall be discharged from its
duties and obligations hereunder. After any retiring or removed Administrative Agent’s resignation
or removal hereunder as an Administrative Agent, or any retiring or removed Collateral Agent’s
resignation or removal hereunder as Collateral Agent, the provisions of this Section 9 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was Administrative
Agent or Collateral Agent hereunder.



     9.8. Collateral Documents and Guaranty.



          (a) Agents under Collateral Documents and Guaranty. Each Lender hereby further
authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the
benefit of Secured Parties, (i) to be the agent for and representative of Lenders with respect to
the Guaranty, the Collateral and the Collateral Documents provided that neither Administrative
Agent nor Collateral Agent shall owe any fiduciary duty, duty of loyalty, duty of care, duty of
disclosure or any other obligation whatsoever to any holder of Obligations with respect to any
Hedge Agreement, (ii) to enter into the Intercreditor Agreement and the other Collateral Documents,
and each Lender agrees to be bound by the




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terms of the Intercreditor Agreement and each other
Collateral Document (including to the extent required to give effect to the validity, perfection or
priority of the Liens granted thereunder) and (iii) to manage, supervise and otherwise deal with
the Collateral (including the making of Protective Advances on behalf of the Lenders in an
aggregate amount not to exceed the lesser of $15,000,000 and the aggregate amount of the unused
Revolving Commitments). Subject to Section 10.5, without further written consent or authorization
from Lenders, Administrative Agent or Collateral Agent, as applicable may execute any documents or
instruments necessary to (i) release any Lien encumbering any item of Collateral that is the
subject of a sale or other disposition of assets permitted hereby or to which Requisite Lenders (or
such other Lenders as may be required to give such consent under Section 10.5) have otherwise
consented or (ii) release any Guarantor from the Guaranty pursuant to Section 7.12 or with respect
to which Requisite Lenders (or such other Lenders as may be required to give such consent under
Section 10.5) have otherwise consented; provided that Collateral Agent shall not enter into or
consent to any material amendment, modification, termination or waiver of the Intercreditor
Agreement without the prior written consent of the Requisite Lenders (or such other Lenders as may
be required to give such instructions under Section 10.5).




          (b) Right to Realize on Collateral and Enforce Guaranty.





          (i) Anything contained in any of the Credit Documents to the contrary notwithstanding,
Company, Administrative Agent, Collateral Agent and each Lender hereby agree that (A) no
Lender shall have any right individually to realize upon any of the Collateral or to enforce
the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder
may be exercised solely by Administrative Agent, on behalf of Lenders in accordance with the
terms hereof and all powers, rights and remedies under the Collateral Documents may be
exercised solely by Collateral Agent, and (B) in the event of a foreclosure by Collateral
Agent on any of the Collateral pursuant to a public or private sale, Collateral Agent or any
Lender may be the purchaser of any or all of such Collateral at any such sale and Collateral
Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in
its or their respective individual capacities unless Requisite Lenders shall otherwise agree
in writing) shall be entitled, for the purpose of bidding and making settlement or payment
of the purchase price for all or any portion of the Collateral sold at any such public sale,
to use and apply any of the Obligations as a credit on account of the purchase price for any
collateral payable by Collateral Agent at such sale.




          (ii) Notwithstanding the provisions of this Agreement or the Collateral Documents,
Collateral Agent shall not have any obligation to exercise rights or remedies against
Collateral consisting of Real Property or of stock of any Subsidiary that owns any Real
Property (the “Specified Remedies”), and if Requisite Lenders determine that the Specified
Remedies should be pursued, they shall give written notice thereof to Administrative Agent
and Collateral Agent. Upon such notice, Collateral Agent may, in its sole and absolute
discretion, elect to pursue the Specified Remedies (provided that it shall have no
obligation to do so) and, if Collateral Agent does not so elect, the Requisite Lenders shall
appoint a separate Real Estate Collateral Agent to pursue the Specified Remedies. Any such
Real Estate Collateral Agent, in its
capacity as such, shall be entitled to the indemnities and other benefits and
protections of this Section 9 to the same extent as Collateral Agent




          (iii) No Hedge Agreement will create (or be deemed to create) in favor of any Lender
Counterparty that is a party thereto any rights in connection with the management or release
of any Collateral or of the obligations of any Guarantor under the Credit Documents.



SECTION 10. MISCELLANEOUS




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     10.1. Notices. Any notice or other communication herein required or permitted to be given to
a Credit Party, Collateral Agent, Administrative Agent, Swing Line Lender or Issuing Bank, shall be
sent to such Person’s address as set forth on Appendix B or in the other relevant Credit Document,
and in the case of any Lender, the address as indicated on Appendix B or otherwise indicated to
Administrative Agent in writing. Each notice hereunder shall be in writing and may be personally
served, telexed or sent by telefacsimile or United States mail or courier service and shall be
deemed to have been given when delivered in person or by courier service and signed for against
receipt thereof, upon receipt of telefacsimile or telex, or three Business Days after depositing it
in the United States mail with postage prepaid and properly addressed; provided, no notice
to any Agent shall be effective until received by such Agent; provided further, any
such notice or other communication shall at the request of Administrative Agent be provided to any
sub-agent appointed pursuant to Section 9.3(c) hereto as designated by Administrative Agent from
time to time.



     10.2. Expenses. Whether or not the transactions contemplated hereby shall be consummated,
Company agrees to pay within 10 Business Days of written demand (including documentation reasonably
supporting such request consistent with past practice) (a) all the actual documented (consistent
with past practice) and reasonable costs and out-of-pocket expenses of preparation of the Credit
Documents and any consents, amendments, waivers or other modifications thereto; (b) the reasonable
fees, reasonable documented (consistent with past practice) out-of-pocket expenses and
disbursements of one primary counsel, one local and foreign counsel in each applicable local and
foreign jurisdiction and one specialty counsel in each applicable specialty area of law to the
Agents in connection with the negotiation, preparation, execution and administration of the Credit
Documents and any consents, amendments, waivers or other modifications thereto and any other
documents or matters requested by Company; (c) all the actual documented (consistent with past
practice) costs and reasonable out-of-pocket expenses of creating and perfecting Liens in the
Collateral in favor of Collateral Agent, for the benefit of Lenders pursuant hereto, including
filing and recording fees, reasonable out-of-pocket expenses and taxes, stamp or documentary taxes,
search fees, title insurance premiums and reasonable fees, expenses and disbursements of one
counsel to the Agents and of one local or foreign counsel in each applicable local and foreign
jurisdiction and one specialty counsel in each applicable specialty area of law providing any
opinions that any Agent or Requisite Lenders may request in respect of the Collateral or the Liens
created pursuant to the Collateral Documents; (d) all the actual documented (consistent with past
practice) costs and reasonable fees, reasonable documented (consistent with past practice)
out-of-pocket expenses and disbursements of any auditors, accountants, consultants or appraisers
(including a reasonable per diem allowance as the Administrative Agent or Collateral Agent may
establish for any in-house auditors); (e) all the actual documented (consistent with past practice)
costs and reasonable expenses (including the reasonable fees, expenses and disbursements of any
appraisers, consultants, advisors and agents employed or retained by Collateral Agent and its
counsel) in connection with the custody or preservation of any of the Collateral; (f) all other
actual and reasonable costs and expenses incurred by each Agent in connection with the negotiation,
preparation and execution of the Credit Documents and any consents, amendments, waivers or other
modifications thereto and the transactions contemplated thereby; and (g) after the occurrence of a
Default or an Event of Default, all actual costs and out-of-pocket expenses, including
reasonable attorneys’ fees (including allocated costs of internal counsel) and costs of
settlement, incurred by any Agent, Lenders or Issuing Bank in enforcing any Obligations of or in
collecting any payments due from any Credit Party hereunder or under the other Credit Documents by
reason of such Default or Event of Default (including in connection with the sale of, collection
from, or other realization upon any of the Collateral or the enforcement of the Guaranty) or in
connection with any refinancing or restructuring of the credit arrangements provided hereunder in
the nature of a “work-out” or pursuant to any insolvency or bankruptcy cases or proceedings;
provided, however, in the absence of any conflicts, reasonable



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attorneys’ fees and costs under this
clause (g) shall be limited to one counsel for the Administrative Agent and Collateral Agent,
collectively, and one counsel for the Lenders and Issuing Bank, collectively.



     10.3. Indemnity.



          (a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the
transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject
to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent, Syndication
Agent, Documentation Agent and each Lender (which term shall include Issuing Bank for purposes of
this Section 10.3) and the officers, partners, directors, trustees, employees, agents, investment
advisors, sub-agents and Affiliates of each Agent, Syndication Agent, Documentation Agent and each
Lender (each, an “Indemnitee”), from and against any and all Indemnified Liabilities;
provided, no Credit Party shall have any obligation to any Indemnitee hereunder with
respect to any Indemnified Liabilities (i) to the extent such Indemnified Liabilities arise from
the gross negligence, bad faith or willful misconduct of that Indemnitee or (ii) arising from any
action solely between or among the Lenders or solely among the Indemnitees other than any such
actions that arise from an act or an omission of any Credit Party (provided that notwithstanding
the foregoing provisions of this clause (ii), the Administrative Agent, acting in such capacity,
shall be indemnified (subject to the limitations set forth in clause (i) above)). To the extent
that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3
may be unenforceable in whole or in part because they are in violation of any law or public policy,
the applicable Credit Party shall contribute the maximum portion that it is permitted to pay and
satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.




          (b) To the extent permitted by applicable law, no party hereto shall assert, and each party
hereto hereby waives, any claim against any other party and their respective Affiliates, directors,
employees, attorneys, agents or sub-agents, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) (whether or not the
claim therefor is based on contract, tort or duty imposed by any applicable legal requirement)
arising out of, in connection with, arising out of, as a result of, or in any way related to, this
Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or
referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use
of the proceeds thereof or any act or omission or event occurring in connection therewith, and
Company hereby waives, releases and agrees not to sue upon any such claim or any such damages,
whether or not accrued and whether or not known or suspected to exist in its favor.




     10.4. Set-Off. Subject to the terms of the Intercreditor Agreement, in addition to any rights
now or hereafter granted under applicable law and not by way of limitation of any such rights, upon
the occurrence and during the continuation of any Event of Default each Lender (which term shall
include Issuing Bank for purposes of this Section 10.4) is hereby authorized by each Credit Party
at any time or from time to time subject to the consent of Administrative Agent (such consent not
to be unreasonably withheld or delayed), without notice to any Credit Party or to any other Person
(other than Administrative Agent), any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and
all deposits (general or special, including Indebtedness evidenced by certificates of deposit,
whether matured or unmatured, but not including payroll, trust or other similar accounts) and any
other Indebtedness at any time held or owing by such Lender to or for the credit or the account of
any Credit Party against and on account of the obligations and liabilities of any Credit Party to
such Lender hereunder and under the other Credit Documents, including all claims of any nature or
description arising out of or connected hereto, the Letters of Credit and participations therein or
with any other Credit Document, irrespective of whether or not such Lender shall have made any
demand hereunder.



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     10.5. Amendments and Waivers.



          (a) Requisite Lenders’ Consent. Subject to Section 10.5(b) and 10.5(c), no amendment,
modification, termination or waiver of any provision of the Credit Documents, or consent to any
departure by any Credit Party therefrom, shall in any event be effective without the written
concurrence of the applicable Credit Parties and the Requisite Lenders; provided that
Administrative Agent may, with the consent of Company only, amend, modify or supplement this
Agreement to cure any ambiguity, omission, defect or inconsistency, so long as such amendment,
modification or supplement does not adversely affect the rights of any Lender.




          (b) Affected Lenders’ Consent. Without the written consent of each Lender that would
be directly affected thereby, no amendment, modification, termination, or consent shall be
effective if the effect thereof would:





          (i) extend the scheduled final maturity of any Loan or Note;




          (ii) waive, reduce or postpone any scheduled repayment of principal (but not
prepayment);




          (iii) extend the stated expiration date of any Letter of Credit beyond the Maturity
Date;




          (iv) reduce the rate of interest on any Loan (other than any waiver of any increase in
the interest rate applicable to any Loan pursuant to Section 2.10) or any fee payable
hereunder or waive, amend or reduce any prepayment premium (provided, however, a waiver of
any default interest, Default or Event of Default shall not be deemed to be a reduction in
the rate of interest or any fee);




          (v) extend the time for payment of any such interest, fees or any prepayment premium;




          (vi) reduce or forgive the principal amount of any Loan or any reimbursement obligation
in respect of any Letter of Credit;




          (vii) amend, modify, terminate or waive any provision of this Section 10.5(b) or
Section 10.5(c);




          (viii) amend the definition of “Requisite Lenders” or “Pro Rata Share”;




          (ix) release all or substantially all of the Collateral or all or substantially all of
the Guarantors from the Guaranty except as expressly provided in the Credit Documents;




          (x) consent to the assignment or transfer by any Credit Party of any of its rights and
obligations under any Credit Document;




          (xi) amend or modify the advance rates set forth in the definition of “Borrowing Base”;
or




          (xii) amend Section 10.6 in a manner that would further restrict assignments.



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          (c) Other Consents. No amendment, modification, termination or waiver of any
provision of the Credit Documents, or consent to any departure by any Credit Party therefrom,
shall:





          (i) amend, modify, terminate or waive any provision of Section 9 as the same applies to
any Agent, or any other provision hereof or of any other Credit Document as the same
applies to the rights or obligations of any Agent, in each case without the written consent
of such Agent;




          (ii) except as set forth in Section 10.5(b), amend the definition of “Borrowing Base”
or any term defined therein which would result in Company being extended additional credit
hereunder with the consent of the Lenders holding at least 66% of the aggregate Revolving
Commitments or Loans then outstanding; or




          (iii) amend, modify, terminate or waive any obligation of Lenders relating to the
purchase of participations in Letters of Credit as provided in Section 2.4 without the
written consent of Administrative Agent and of Issuing Bank.



          (d) Execution of Amendments, etc. Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender or any Issuing Bank, as applicable, execute
amendments, modifications, waivers or consents on behalf of such Lender. Any waiver or consent
shall be effective only in the specific instance and for the specific purpose for which it was
given. No notice to or demand on any Credit Party in any case shall entitle any Credit Party to
any other or further notice or demand in similar or other circumstances. Any amendment,
modification, termination, waiver or consent effected in accordance with this Section 10.5 shall be
binding upon each Lender at the time outstanding, each future Lender and, if signed by a Credit
Party, on such Credit Party.




     10.6. Successors and Assigns; Participations.



          (a) Generally. This Agreement shall be binding upon the parties hereto and their
respective successors and permitted assigns and shall inure to the benefit of the parties hereto
and the successors and assigns of Lenders and Issuing Banks. No Credit Party’s rights or
obligations hereunder nor any interest therein may be assigned or delegated by any Credit Party
without the prior written consent of all Lenders and each Issuing Bank. 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 and, to the extent expressly contemplated
hereby, Affiliates of each of the Agents and Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.




          (b) Register. Company, Agents, Lenders and each Issuing Bank shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes hereof, and, except as provided in Section
10.6(d) below, no assignment or transfer of any such Commitment or Loan shall be effective, in each
case, unless and until an Assignment Agreement effecting the assignment or transfer thereof shall
have been delivered
to and accepted by Administrative Agent and recorded in the Register, as provided in Section
10.6(e). Prior to such recordation, all amounts owed with respect to the applicable Commitment or
Loan shall be owed to the Lender listed in the Register, as the owner thereof, and any request,
authority or consent of any Person who, at the time of making such request or giving such authority
or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent
holder, assignee or transferee of the corresponding Commitments or Loans.





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          (c) Right to Assign. Each Lender shall have the right at any time to sell, assign or
transfer all or a portion of its rights and obligations under this Agreement, including, without
limitation, all or a portion of its Commitment or Loans owing to it or other Obligation
(provided, however, that each such assignment shall be of a uniform, and not
varying, percentage of all rights and obligations under and in respect of any Loans and any related
Commitments):





          (i) to any Person meeting the criteria of clause (i) of the definition of the term of
“Eligible Assignee” and the applicable requirements of the last sentence of the definition
of “Eligible Assignee” upon (subject to Section 10.6(d)) the giving of notice to Company and
Administrative Agent; and




          (ii) to any Person meeting the criteria of clause (ii) of the definition of the term of
“Eligible Assignee” and the applicable requirements of the last sentence of the definition
of “Eligible Assignee” upon giving of notice to Company and Administrative Agent, consented
to by each of Company and Administrative Agent (such consent not to be (x) unreasonably
withheld or delayed or, (y) in the case of Company, required at any time an Event of Default
shall have occurred and then be continuing); provided, further each such assignment
pursuant to this Section 10.6(c)(ii) shall be in an aggregate amount of not less than
$2,500,000 (or such lesser amount as may be agreed to by Company and Administrative Agent or
as shall constitute the aggregate amount of the Loan of the assigning Lender) with respect
to the assignment of Loans.



          (d) Mechanics. The assigning Lender and the assignee thereof shall execute and
deliver to Administrative Agent an Assignment Agreement, together with such forms, certificates or
other evidence, if any, with respect to United States federal income tax withholding matters as the
assignee under such Assignment Agreement may be required to deliver to Administrative Agent
pursuant to Section 2.20(c) or (f). Notwithstanding anything contained in this Section 10.6 to the
contrary, a Lender may transfer all or any of its rights hereunder to a Eligible Assignee that is
an Affiliate or a Related Fund of such Lender, in each such case without delivering an Assignment
Agreement to Administrative Agent or to Company or complying with the notice requirements of
Section 10.6(c)(i) above, and the failure of the transferring Lender to so deliver an Assignment
Agreement and comply with such notice requirements shall not affect the legality, validity or
binding effect of such transfer; provided, however, that Company and Administrative
Agent may continue to deal solely and directly with the transferring Lender until such Assignment
Agreement has been delivered to Administrative Agent and such notice requirements have been
satisfied and the relevant assignment shall have been recorded in the Register or the comparable
register referred to in the penultimate sentence of Section 2.7(b). No transfer of all or any part
of an Obligation shall be effective for any purpose until it shall be registered on the Register or
the comparable register referred to in the penultimate sentence of Section 2.7(b). Participations
need not be registered on the Register to be effective for all purposes.




          (e) Notice of Assignment. Upon its receipt of a duly executed and completed
Assignment Agreement (and any forms, certificates or other evidence required by this Agreement in
connection therewith), Administrative Agent shall record the information contained in such
Assignment Agreement in the Register, shall give prompt notice thereof to Company and shall
maintain a copy of
such Assignment Agreement, and Company shall be entitled to regard the assigning Lender as a
Lender hereunder until such notice is received; provided, that any assignment or transfer
recorded in any comparable register as permitted hereunder shall be effective when made.




          (f) Representations and Warranties of Assignee. Each Lender, upon execution and
delivery hereof or upon executing and delivering an Assignment Agreement, as the case may be,
represents and warrants as of the Closing Date or as of the applicable Closing Date (as defined in
the




111









 







applicable Assignment Agreement) that (i) it is an Eligible Assignee; (ii) it has experience
and expertise in the making of or investing in commitments or loans such as the applicable
Commitments or Loans, as the case may be; (iii) it will make or invest in, as the case may be, its
Commitments or Loans for its own account in the ordinary course of its business and without a view
to distribution of such Commitments or Loans within the meaning of the Securities Act or the
Exchange Act or other federal securities laws (it being understood that, subject to the provisions
of this Section 10.6, the disposition of such Loans or any interests therein shall at all times
remain within its exclusive control) and (iv) has provided all the certificate documents and forms
required by Section 2.20 to the extent applicable.




          (g) Effect of Assignment. Subject to the terms and conditions of this Section 10.6,
as of the “Assignment Effective Date” (i) the assignee thereunder shall have the rights and
obligations of a “Lender” hereunder to the extent of its interest in the Loans and Commitments as
reflected in the Register and shall thereafter be a party hereto and a “Lender” for all purposes
hereof; and (ii) the assigning Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned to the assignee, relinquish its rights (other than any rights which
survive the termination hereof under Section 10.9) and be released from its obligations hereunder
(and, in the case of an assignment covering all or the remaining portion of an assigning Lender’s
rights and obligations hereunder, such Lender shall cease to be a party hereto on the Assignment
Effective Date; provided, anything contained in any of the Credit Documents to the contrary
notwithstanding, (y) Issuing Bank shall continue to have all rights and obligations thereof with
respect to such Letters of Credit until the cancellation or expiration of such Letters of Credit
and the reimbursement of any amounts drawn thereunder and (z) such assigning Lender shall continue
to be entitled to the benefit of all indemnities hereunder as specified herein with respect to
matters arising out of the prior involvement of such assigning Lender as a Lender hereunder); (iii)
the Commitments shall be modified to reflect any Commitment of such assignee and any Revolving
Commitment of such assigning Lender, if any; and (iv) if any such assignment occurs after the
issuance of any Note hereunder, the assigning Lender shall, upon the effectiveness of such
assignment or as promptly thereafter as practicable, surrender its applicable Notes to
Administrative Agent for cancellation, and thereupon Company shall issue and deliver new Notes, if
so requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning
Lender, with appropriate insertions, to reflect the new Revolving Commitments and/or outstanding
Loans of the assignee and/or the assigning Lender.




          (h) Participations. Each Lender shall have the right at any time to sell one or more
participations to any Person (other than Company, any of its Subsidiaries or any of its Affiliates)
in all or any part of its Commitments, Loans or in any other Obligation. The holder of any such
participation, other than an Affiliate or Related Fund of the Lender granting such participation,
shall not be entitled to require such Lender to take or omit to take any action hereunder except
with respect to any amendment, modification or waiver that would (i) extend the final scheduled
maturity of any Loan or Note or Letter of Credit (unless such Letter of Credit is not extended
beyond the Maturity Date) in which such participant is participating, or reduce the rate or extend
the time of payment of interest or fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the principal amount
thereof, or increase the amount of the participant’s participation over the amount thereof then in
effect (it being understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Commitment shall not constitute a change in the terms of such participation,
and that an increase in any Commitment or Loan shall be permitted without the consent of any
participant if the participant’s participation is not increased as a result thereof), (ii) consent
to the assignment or transfer by any Credit Party of any of its rights and obligations under this
Agreement or (iii) release all or substantially all of the Collateral under the Collateral
Documents (except as expressly provided in the Credit Documents) supporting the Loans hereunder in
which such participant is participating. Company agrees that each participant shall be entitled
to the benefits of Sections 2.18(c), 2.19 and 2.20 to the same




112









 







extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (c) of this Section;
provided, (i) a participant shall not be entitled to receive any greater payment under
Section 2.19 or 2.20 than the applicable Lender would have been entitled to receive with respect to
the participation sold to such participant, unless the sale of the participation to such
participant is made with Company’s prior written consent and (ii) a participant that would be a
Non-US Lender if it were a Lender shall not be entitled to the benefits of Section 2.20 unless
Company is notified of the participation sold to such participant and such participant agrees, for
the benefit of Company, to comply with Section 2.20 as though it were a Lender. To the extent
permitted by law, each participant also shall be entitled to the benefits of Section 10.4 as though
it were a Lender, provided such Participant agrees to be subject to Section 2.17 as though it were
a Lender. In the event that any Lender sells participations in a Loan, such Lender shall maintain a
register on which it enters the name of all participants in the Loan held by it (the “Participant
Register”). A Loan (and the registered note, if any, evidencing the same) may be participated in
whole or in part only by registration of such participation on the Participant Register (and each
registered note shall expressly so provide). Any participation of such Loan (and the registered
note, if any, evidencing the same) may be effected only by the registration of such participation
on the Participant Register.




          (i) Certain Other Assignments. In addition to any other assignment permitted or
participation pursuant to this Section 10.6, (i) any Lender (which term shall include Issuing Bank
for purposes of this Section 10.6(i)) may assign and/or pledge without the consent of Company or
Administrative Agent all or any portion of its Loans, the other Obligations owed by or to such
Lender, and its Notes, if any, to secure obligations of such Lender including, without limitation,
to any Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any operating circular issued by such Federal Reserve
Bank and, in the case of any Lender that is a fund that originates or invests in commercial loans,
to any holder of, trustee for, or any other representative of holders of obligations owed or
securities issued by such fund as security for such obligations or securities; provided, no
Lender, as between Company and such Lender, shall be relieved of any of its obligations hereunder
as a result of any such assignment and pledge, and provided further, in no event
shall the applicable Federal Reserve Bank, pledgee, holder or trustee be considered to be a
“Lender” or be entitled to require the assigning Lender to take or omit to take any action
hereunder.




     10.7. [Reserved].



     10.8. Independence of Covenants. All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such covenants, the fact that
it would be permitted by an exception to, or would otherwise be within the limitations of, another
covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken
or condition exists.



     10.9. Survival of Representations, Warranties and Agreements. All representations, warranties
and agreements made herein shall survive the execution and delivery hereof and the making of any
Credit Extension. Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.18(c), 2.19, 10.2, 10.3 and 10.4, all
indemnification obligations of Company and its Subsidiaries under this Agreement and any other
Credit Document that
are not included in the foregoing provisions, and the agreements of Lenders set forth in
Sections 2.17, 9.3(b) and 9.6 shall survive the payment of the Loans, the cancellation or
expiration of the Letters of Credit and the reimbursement of any amounts drawn thereunder, and the
termination hereof. The indemnities and payment obligations in Section 2.20 shall survive
irrevocable payment in full of the Loans and termination of the Commitments.




113












 





     10.10. No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent, any
Lender or Issuing Bank in the exercise of any power, right or privilege hereunder or under any
other Credit Document shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other power, right or
privilege. The rights, powers and remedies given to each Agent, each Lender and each Issuing Bank
hereby are cumulative and shall be in addition to and independent of all rights, powers and
remedies existing by virtue of any statute or rule of law or in any of the other Credit Documents
or any of the Hedge Agreements. Any forbearance or failure to exercise, and any delay in
exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy
or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such
right, power or remedy.



     10.11. Marshalling; Payments Set Aside. Neither any Agent nor any Lender (which term shall
include Issuing Bank for purposes of this Section 10.11) shall be under any obligation to marshal
any assets in favor of any Credit Party or any other Person or against or in payment of any or all
of the Obligations. To the extent that any Credit Party makes a payment or payments to
Administrative Agent, Collateral Agent or Lenders (or to Administrative Agent or Collateral Agent
on behalf of Lenders), or any Agent or Lenders enforce any security interests or exercise their
rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law,
any other state or federal law, common law or any equitable cause, then, to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights
and remedies therefor or related thereto, shall be revived and continued in full force and effect
as if such payment or payments had not been made or such enforcement or setoff had not occurred.



     10.12. Severability. In case any provision in or obligation hereunder or any other Credit
Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.



     10.13. Obligations Several; Independent Nature of Lenders’ Rights. The obligations of Lenders
(which term shall include Issuing Bank for purposes of this Section 10.13) hereunder are several
and no Lender shall be responsible for the obligations or Commitment of any other Lender hereunder.
Nothing contained herein or in any other Credit Document, and no action taken by Lenders pursuant
hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a Joint
Venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall
be a separate and independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out hereof and it shall not be necessary for any other Lender to be joined as an
additional party in any proceeding for such purpose.



     10.14. Headings. Section headings herein are included herein for convenience of reference
only and shall not constitute a part hereof for any other purpose or be given any substantive
effect.



     10.15. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE THE
APPLICATION OF LAWS OTHER THAN THOSE OF THE STATE OF NEW YORK.



114









 





     10.16. CONSENT TO JURISDICTION; SERVICE OF PROCESS. EACH PARTY HERETO HEREBY CONSENTS AND
AGREES THAT THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY OF NEW YORK, BOROUGH OF
MANHATTAN, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK SHALL HAVE
NONEXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE CREDIT PARTIES,
AGENTS AND LENDERS PERTAINING TO THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY
MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS;
PROVIDED, THAT AGENTS, LENDERS AND THE CREDIT PARTIES ACKNOWLEDGE THAT ANY APPEALS FROM ANY
SUCH COURT MAY HAVE TO BE HEARD BY A COURT IN A DIFFERENT JURISDICTION; PROVIDED
FURTHER, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE ANY AGENT
FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE
COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER
IN FAVOR OF ANY AGENT. EACH CREDIT PARTY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH CREDIT PARTY HEREBY WAIVES
ANY OBJECTION THAT SUCH CREDIT PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER
VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH
LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH CREDIT PARTY HEREBY WAIVES
PERSONAL SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND OTHER DOCUMENTS AND OTHER
SERVICE OF PROCESS OF ANY KIND AND CONSENTS TO SUCH SERVICE IN ANY SUIT, ACTION OR PROCEEDING
BROUGHT IN THE UNITED STATES OF AMERICA WITH RESPECT TO OR OTHERWISE ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS BY ANY MEANS PERMITTED BY
APPLICABLE REQUIREMENTS OF LAW, INCLUDING BY THE MAILING THEREOF (BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID) TO THE ADDRESS OF COMPANY SPECIFIED IN SECTION 10.1 (AND SHALL BE EFFECTIVE WHEN
SUCH MAILING SHALL BE EFFECTIVE, AS PROVIDED THEREIN).



     10.17. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY
OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
LOAN TRANSACTION OR THE LENDER/COMPANY RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE
TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE



115









 







MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY
REFERRING TO THIS SECTION 10.17 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE
OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE
HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
BY THE COURT.



     10.18. Confidentiality. Each Agent and each Lender (which term shall include Issuing Bank for
purposes of this Section 10.18) shall hold all non-public information regarding Company and its
Subsidiaries and their businesses identified as such by Company and obtained by such Lender
pursuant to the requirements hereof in accordance with such Lender’s customary procedures for
handling confidential information of such nature, it being understood and agreed by Company that,
in any event, each Agent and each Lender may make (i) disclosures of such information to Affiliates
of such Lender or Agent and to their respective agents and advisors (and to other Persons
authorized by a Lender or Agent to organize, present or disseminate such information in connection
with disclosures otherwise made in accordance with this Section 10.18), (ii) disclosures of such
information reasonably required by any bona fide or potential assignee, transferee or participant
in connection with the contemplated assignment, transfer or participation of any Loans or any
participations therein or by any direct or indirect contractual counterparties (or the professional
advisors thereto) to any swap or derivative transaction relating to Company and its obligations
(provided, such assignees, transferees, participants, counterparties and advisors are advised of
and agree to be bound by either the provisions of this Section 10.18 or other provisions at least
as restrictive as this Section 10.18), (iii) disclosure to any rating agency when required by it,
provided that, prior to any disclosure, such rating agency shall undertake in writing to
preserve the confidentiality of any confidential information relating to the Credit Parties
received by it from any of the Agents or any Lender, and (iv) disclosures required or requested by
any governmental agency or representative thereof or by the NAIC or pursuant to legal or judicial
process; provided, unless specifically prohibited by applicable law or court order, each
Lender and each Agent shall make reasonable efforts to notify Company of any request by any
governmental agency or representative thereof (other than any such request in connection with any
examination of the financial condition or other routine examination of such Lender by such
governmental agency) for disclosure of any such non-public information prior to disclosure of such
information.



     10.19. Usury Savings Clause. (a) Notwithstanding any other provision herein, in respect of
any Credit Party, the aggregate interest rate charged with respect to any of the Obligations,
including all charges or fees in connection therewith deemed in the nature of interest under
applicable law, shall not exceed the Highest Lawful Rate. If the rate of interest (determined
without regard to the preceding sentence) under this Agreement at any time exceeds the Highest
Lawful Rate, the outstanding amount of the Loans made hereunder shall bear interest at the Highest
Lawful Rate until the total amount of interest due hereunder equals the amount of interest which
would have been due hereunder if the stated rates of interest set forth in this Agreement had at
all times been in effect. In addition, if when the Loans made hereunder are repaid in full the
total interest due hereunder (taking into account the increase provided for above) is less than the
total amount of interest which would have been due hereunder if the stated rates of interest set
forth in this Agreement had at all times been in effect, then to the extent permitted by law,
Company shall pay to Administrative Agent an amount equal to the difference between the amount of
interest paid and the amount of interest which would have been paid if the Highest Lawful Rate had
at all times been in effect. Notwithstanding the foregoing, it is the intention of Lenders, each
Issuing Bank and Company to conform strictly to any applicable usury laws. Accordingly, if any
Lender or Issuing Bank



116









 







contracts for, charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously
paid, shall at such Lender’s or Issuing Bank’s option be applied to the outstanding amount of the
Loans made hereunder or be refunded to Company.



     10.20. Counterparts. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument. Delivery of an executed counterpart of
a signature page to this agreement by facsimile or in an email containing a “pdf” shall be as
effective as delivery of a manually executed counterpart of this Agreement.



     10.21. Effectiveness. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Company and Administrative Agent of
written or telephonic notification of such execution and authorization of delivery thereof.



     10.22. Patriot Act. Each Lender, Issuing Bank and Agent (for itself and not on behalf of any
Lender) hereby notifies Company that pursuant to the requirements of the Patriot Act, it is
required to obtain, verify and record information that identifies Company, which information
includes the name and address of Company and other information that will allow such Lender or
Administrative Agent, as applicable, to identify Company in accordance with the Patriot Act.



     10.23. Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and
words of like import in any Assignment Agreement shall be deemed to include electronic signatures
or the keeping of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.



[Remainder of page intentionally left blank]




117









 





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



DURA AUTOMOTIVE SYSTEMS, INC. (F/K/A

     NEW DURA, INC.)

NEW DURA HOLDCO, INC.

NEW DURA OPCO, INC.

DURA OPERATING CORP.

DURA SPICEBRIGHT, INC.

ADWEST ELECTRONICS, INC.

ATWOOD AUTOMOTIVE, INC.

ATWOOD MOBILE PRODUCTS, INC.

DURA AUTOMOTIVE SYSTEMS CABLE

     OPERATIONS, INC.

DURA GLOBAL TECHNOLOGIES, INC.

CREATION GROUP, INC.

CREATION GROUP HOLDINGS, INC.

CREATION GROUP TRANSPORTATION, INC.

KEMBERLY, INC.




	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






S-1









 





	 	 	 	 	 	 	 
	 	 	DURA SHIFTER L.L.C.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	DURA OPERATING CORP.,	 	 
	 

	 	Its:
	 	SOLE MEMBER	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	DURA AIRCRAFT OPERATING COMPANY, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	DURA OPERATING CORP.,	 	 
	 

	 	Its:
	 	SOLE MEMBER	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	DURA BRAKE SYSTEMS, L.L.C.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	DURA OPERATING CORP.,	 	 
	 

	 	Its:
	 	SOLE MEMBER	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	DURA CABLES NORTH LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	ATWOOD AUTOMOTIVE, INC.,	 	 
	 

	 	Its:
	 	SOLE MEMBER	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






S-2









 






	 	 	 	 	 	 	 
	 	 	DURA CABLES SOUTH LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	ATWOOD AUTOMOTIVE, INC.,	 	 
	 

	 	Its:
	 	SOLE MEMBER	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	DURA FREMONT L.L.C.	 	 
	 	 	DURA GLADWIN L.L.C.	 	 
	 	 	DURA MANCELONA L.L.C.	 	 
	 	 	DURA SERVICES L.L.C.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	DURA G.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	DURA OPERATING CORP.,	 	 
	 

	 	Its:
	 	MANAGING GENERAL PARTNER	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






S-3









 






	 	 	 	 	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION,

as Administrative Agent, Collateral Agent, and a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



S-4









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Documentation Agent, Issuing Bank and a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



S-5









 






	 	 	 	 	 



	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION

as Syndication Agent and a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




S-6









 





APPENDIX A

TO REVOLVING CREDIT AND GUARANTY AGREEMENT




Commitments




	 	 	 	 	 	 	 	 	 
	Lender	 	Commitment	 	Pro Rata Share
	General Electric Capital Corporation
	 	$	40,000,000	 	 	 	36.3636364	%
	Bank of America, N.A.
	 	$	35,000,000	 	 	 	31.8181818	%
	Wachovia Bank, National Association
	 	$	35,000,000	 	 	 	31.8181818	%
	Total
	 	$	110,000,000	 	 	 	100	%






APPENDIX A-1-1




 









 





APPENDIX B

TO REVOLVING CREDIT AND GUARANTY AGREEMENT




Notice Addresses




DURA OPERATING COMPANY



Dura Operating Corp.

2791 Research Drive

Rochester Hills, MI 48309




B-1









 





GENERAL ELECTRIC CAPITAL CORPORATION,

Administrative Agent’s and Collateral Agent’s Principal Office and as Lender:



General Electric Capital Corporation

500 West Monroe Street

Chicago, IL 60661

Attention: Dura Account Officer

Telecopier: 312-463-3840




with a copy to:



General Electric Capital Corporation

401 Merritt 7

Norwalk, CT 06856

Attention: Dura Account Officer

Telecopier: 203-956-4002




with a copy to:



General Electric Capital Corporation

500 West Monroe Street

Chicago, IL 60661

Attention: Corporate Counsel – Commercial Finance

Telecopier: 312-463-3840




with a copy to:



Winston & Strawn LLP

200 Park Avenue

New York, NY 10166

Attention: William D. Brewer

Telecopier: 212-294-4700




B-2









 








BANK OF AMERICA, N.A.,

Issuing Bank and as Lender



Bank of America Business Capital

335 Madison Avenue — 6th Floor

New York, NY 10017

Attention: Division President




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Lender



Wachovia Bank, N.A.

1133 Avenue of the Americas

New York, New York 10036

Attn: Portfolio Manager





B-3