exv10w4





 EXHIBIT
10.4

EXECUTION VERSION




SECOND LIEN 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




WILMINGTON TRUST COMPANY

as Administrative Agent and Collateral Agent,




 






$83,750,000 Initial Principal Amount

Second Lien Senior Secured Term Credit Facility




 






 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	SECTION 1. DEFINITIONS AND INTERPRETATION
	 	 	2	 
	 
	 	 	 	 
	1.1. Definitions
	 	 	2	 
	1.2. Accounting Terms
	 	 	26	 
	1.3. Interpretation, etc.
	 	 	27	 
	 
	 	 	 	 
	SECTION 2. LOANS
	 	 	27	 
	 
	 	 	 	 
	2.1. Loans
	 	 	27	 
	2.2. [Reserved]
	 	 	27	 
	2.3. [Reserved]
	 	 	27	 
	2.4. [Reserved]
	 	 	28	 
	2.5. Pro Rata Shares; Availability of Funds
	 	 	28	 
	2.6. Use of Proceeds
	 	 	28	 
	2.7. Evidence of Debt; Register; Lenders’ Books and Records; Notes
	 	 	28	 
	2.8. Interest on Loans
	 	 	29	 
	2.9. Conversion/Continuation
	 	 	30	 
	2.10. Default Interest
	 	 	31	 
	2.11. Fees
	 	 	31	 
	2.12. [Reserved]
	 	 	31	 
	2.13. Voluntary Prepayments and Commitment Reductions
	 	 	31	 
	2.14. Mandatory Prepayments
	 	 	31	 
	2.15. Application of Prepayments/Reductions
	 	 	33	 
	2.16. General Provisions Regarding Payments
	 	 	33	 
	2.17. Ratable Sharing
	 	 	35	 
	2.18. Making or Maintaining LIBOR Loans
	 	 	35	 
	2.19. Increased Costs; Capital Adequacy
	 	 	37	 
	2.20. Taxes; Withholding, etc.
	 	 	38	 
	2.21. Obligation to Mitigate
	 	 	41	 
	2.22. [Reserved]
	 	 	41	 
	2.23. Removal or Replacement of a Lender
	 	 	41	 
	2.24. Payment of Obligations
	 	 	42	 
	2.25. Incremental Facility
	 	 	42	 
	 
	 	 	 	 
	SECTION 3. CONDITIONS PRECEDENT
	 	 	43	 
	 
	 	 	 	 
	3.1. Closing Date
	 	 	43	 
	3.2. Conditions to Each Credit Extension
	 	 	47	 
	 
	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	48	 
	 
	 	 	 	 
	4.1. Organization; Requisite Power and Authority; Qualification
	 	 	48	 
	4.2. Capital Stock and Ownership
	 	 	48	 
	4.3. Due Authorization
	 	 	49	 
	4.4. No Conflict
	 	 	49	 
	4.5. Governmental Consents
	 	 	49	 
	4.6. Binding Obligation
	 	 	49	 
	4.7. Historical Financial Statements
	 	 	49	 
	4.8. Projections
	 	 	50	 
	4.9. No Material Adverse Change
	 	 	50	 
	4.10. No Restricted Junior Payments
	 	 	50	 
	4.11. Adverse Proceedings, etc.
	 	 	50	 
	4.12. Payment of Taxes
	 	 	50	 






i









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	4.13. Properties
	 	 	50	 
	4.14. Environmental Matters
	 	 	51	 
	4.15. No Defaults
	 	 	51	 
	4.16. Material Contracts
	 	 	52	 
	4.17. Governmental Regulation
	 	 	52	 
	4.18. Margin Stock
	 	 	52	 
	4.19. Employee Matters
	 	 	52	 
	4.20. Employee Benefit Plans
	 	 	52	 
	4.21. Compliance with Statutes, etc.
	 	 	53	 
	4.22. Disclosure
	 	 	53	 
	4.23. Patriot Act
	 	 	53	 
	4.24. Solvency
	 	 	54	 
	4.25. Senior Indebtedness
	 	 	54	 
	 
	 	 	 	 
	SECTION 5. AFFIRMATIVE COVENANTS
	 	 	54	 
	 
	 	 	 	 
	5.1. Financial Statements and Other Reports
	 	 	54	 
	5.2. Existence
	 	 	57	 
	5.3. Payment of Taxes and Claims
	 	 	57	 
	5.4. Maintenance of Properties
	 	 	58	 
	5.5. Insurance
	 	 	58	 
	5.6. Inspections
	 	 	58	 
	5.7. Lenders Meetings
	 	 	59	 
	5.8. Compliance with Laws
	 	 	59	 
	5.9. Environmental
	 	 	59	 
	5.10. Subsidiaries
	 	 	60	 
	5.11. Further Assurances
	 	 	62	 
	5.12. Control Accounts; Approved Deposit Accounts
	 	 	62	 
	5.13. Post Closing Covenants
	 	 	63	 
	 
	 	 	 	 
	SECTION 6. NEGATIVE COVENANTS
	 	 	63	 
	 
	 	 	 	 
	6.1. Indebtedness
	 	 	63	 
	6.2. Liens
	 	 	65	 
	6.3. [Reserved]
	 	 	67	 
	6.4. No Further Negative Pledges
	 	 	67	 
	6.5. Restricted Junior Payments
	 	 	67	 
	6.6. Restrictions on Subsidiary Distributions
	 	 	68	 
	6.7. Investments
	 	 	68	 
	6.8. Financial Covenants
	 	 	70	 
	6.9. Fundamental Changes; Disposition of Assets; Acquisitions
	 	 	71	 
	6.10. Disposal of Subsidiary Interests
	 	 	73	 
	6.11. Sales and Lease-Backs
	 	 	73	 
	6.12. Transactions with Shareholders and Affiliates
	 	 	73	 
	6.13. Conduct of Business
	 	 	74	 
	6.14. Modifications of Indebtedness, Organizational Documents and Certain
Other Agreements; Etc.
	 	 	74	 
	6.15. Fiscal Year
	 	 	75	 
	 
	 	 	 	 
	SECTION 7. GUARANTY
	 	 	75	 
	 
	 	 	 	 
	7.1. Guaranty of the Obligations
	 	 	75	 






ii









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	7.2. Contribution by Guarantors
	 	 	75	 
	7.3. Payment by Guarantors
	 	 	75	 
	7.4. Liability of Guarantors Absolute
	 	 	76	 
	7.5. Waivers by Guarantors
	 	 	77	 
	7.6. Guarantors’ Rights of Subrogation, Contribution, etc.
	 	 	78	 
	7.7. Subordination of Other Obligations
	 	 	79	 
	7.8. Continuing Guaranty
	 	 	79	 
	7.9. Authority of Guarantors or Company
	 	 	79	 
	7.10. Financial Condition of Company
	 	 	79	 
	7.11. Bankruptcy, etc.
	 	 	79	 
	7.12. Discharge of Guaranty Upon Sale of Guarantor
	 	 	80	 
	7.13. Indemnity
	 	 	80	 
	 
	 	 	 	 
	SECTION 8. EVENTS OF DEFAULT
	 	 	80	 
	 
	 	 	 	 
	8.1. Events of Default
	 	 	80	 
	 
	 	 	 	 
	SECTION 9. AGENTS
	 	 	83	 
	 
	 	 	 	 
	9.1. Appointment of Agents
	 	 	83	 
	9.2. Powers and Duties
	 	 	83	 
	9.3. General Immunity
	 	 	83	 
	9.4. Agents Entitled to Act as Lender
	 	 	85	 
	9.5. Lenders’ Representations, Warranties and Acknowledgment
	 	 	85	 
	9.6. Right to Indemnity
	 	 	86	 
	9.7. Successor Administrative Agent and Collateral Agent
	 	 	86	 
	9.8. Collateral Documents and Guaranty
	 	 	87	 
	9.9. Withholding Taxes
	 	 	88	 
	9.10. Credit Agreement
	 	 	88	 
	 
	 	 	 	 
	SECTION 10. MISCELLANEOUS
	 	 	88	 
	 
	 	 	 	 
	10.1. Notices
	 	 	88	 
	10.2. Expenses
	 	 	88	 
	10.3. Indemnity
	 	 	89	 
	10.4. Set-Off
	 	 	90	 
	10.5. Amendments and Waivers
	 	 	90	 
	10.6. Successors and Assigns; Participations
	 	 	91	 
	10.7. [Reserved]
	 	 	94	 
	10.8. Independence of Covenants
	 	 	95	 
	10.9. Survival of Representations, Warranties and Agreements
	 	 	95	 
	10.10. No Waiver; Remedies Cumulative
	 	 	95	 
	10.11. Marshalling; Payments Set Aside
	 	 	95	 
	10.12. Severability
	 	 	95	 
	10.13. Obligations Several; Independent Nature of Lenders’ Rights
	 	 	95	 
	10.14. Headings
	 	 	96	 
	10.15. APPLICABLE LAW
	 	 	96	 
	10.16. CONSENT TO JURISDICTION; SERVICE OF PROCESS
	 	 	96	 
	10.17. WAIVER OF JURY TRIAL
	 	 	96	 
	10.18. Confidentiality
	 	 	97	 
	10.19. Usury Savings Clause
	 	 	97	 
	10.20. Counterparts
	 	 	98	 






iii









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	10.21. Effectiveness
	 	 	98	 
	10.22. Patriot Act
	 	 	98	 
	10.23. Electronic Execution of Assignments
	 	 	98	 
	10.24. No Fiduciary Duty
	 	 	98	 






iv









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	APPENDICES:

	 	A
	 	Commitments
	 

	 	B
	 	Notice Addresses; Principal Offices
	 
	 	 	 	 
	SCHEDULES:

	 	1.1
	 	Existing Joint Ventures
	 

	 	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
	 

	 	B
	 	Note
	 

	 	C
	 	Assignment Agreement
	 

	 	D
	 	Certificate Re Non-bank Status
	 

	 	E
	 	Closing Date Certificate
	 

	 	F
	 	Compliance Certificate
	 

	 	G
	 	Counterpart Agreement
	 

	 	H-1
	 	Intercreditor Agreement
	 

	 	H-2
	 	European Intercreditor Agreement
	 

	 	I
	 	Pledge and Security Agreement
	 

	 	J
	 	Landlord Waiver and Consent Agreement
	 

	 	K
	 	Secretary’s Certificate
	 

	 	L
	 	Aircraft Security Agreement
	 

	 	M
	 	Solvency Certificate
	 

	 	N
	 	Joinder Agreement







v











 





SECOND LIEN CREDIT AND GUARANTY AGREEMENT




          This SECOND LIEN 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 and WILMINGTON TRUST COMPANY
(“Wilmington Trust”), as Administrative Agent (together with its permitted successors and assigns
in such capacity, “Administrative Agent”), and as Collateral Agent (together with its permitted
successor and assigns in such capacity, “Collateral 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 make certain loans to Company, in an original aggregate
principal amount not to exceed $83,750,000 (not taking into account any interest capitalized as
principal), 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 Revolving 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 and (iii) to provide financing for working capital purposes and general corporate
purposes;



     WHEREAS, Company has agreed to secure all of its Obligations by granting to Collateral Agent,
for its benefit and for the benefit of the other 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 its benefit and for the benefit of the other
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.




          “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 Guarantor or any property of Company, Parent or any Guarantor.




          “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 of such Person, (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 or (iii) solely with respect to the use of the term “Affiliate” in the definitions of the
terms “Eligible Assignee,” “Permitted Holders” and “Requisite Lenders,” to have discretionary
authority to make investment decisions pursuant to an investment management agreement, advisory
contract, power-of-attorney or similar agreement with respect to financial services entered into by
that Person.




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




          “Aggregate Amounts Due” as defined in Section 2.17.





2









 








          “Aggregate Payments” as defined in Section 7.2.




          “Agreement” means this Second Lien 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 L, as it may be amended,
restated, supplemented or otherwise modified from time to time.




          “Applicable Margin” means (i) with respect to LIBOR Rate Loans, (a) 11.25% per annum for Cash
Interest and (b) 13.25% per annum for PIK Interest and (ii) with respect to Base Rate Loans, (a)
10.25% per annum for Cash Interest and (b) 12.25% per annum for PIK Interest.




          “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 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.




          “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.




3









 








          “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.




          “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%;
provided that at no time shall the Base Rate be less than 5.0% per annum. 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, Lender and Lender Counterparty.




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




          “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 Parent and
its Subsidiaries 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 Parent or any of its Subsidiaries) and
for which Parent and its Subsidiaries have not provided or are 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).




          “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



4









 






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 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;




          (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




5









 








          (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 Interest” as defined in Section 2.8.




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




          “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 50% 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 Revolving Loan Agreement or any agreement evidencing Indebtedness
described in Section 8.1(b) other than a change of control (or similar concept) of a type similar
to that described in clause (a) above, shall occur.




          “Chapter 11 Case” and “Chapter 11 Cases” as defined in the recitals to the Agreement.




          “Closing Date” means June 27, 2008.




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




          “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 the commitment of a Lender to make or otherwise fund a Loan and
“Commitments” means such commitments of all Lenders in the aggregate. The terms “Commitment” and
“Commitments” shall include, if the context requires, New Term Loan Commitments. The amount of
each Lender’s Commitment as of the Closing Date is set forth on Appendix A. The aggregate amount
of the Commitments as of the Closing Date is $83,750,000.





6









 








          “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) Consolidated Net Income, plus, to the extent
reducing Consolidated Net Income, the sum, without duplication, of the amounts for such period of
(a) Consolidated Interest Expense, (b) consolidated income withholding, franchise and similar tax
expense, (c) total depreciation expense, (d) total amortization expense (including amortization of
intangibles), (e) fees, costs and expenses incurred in connection with this Agreement, the European
AR Factoring Facilities, the European First Lien Term Loan Agreement, the Revolving Loan Agreement
and the issuance by Parent of its Series A Redeemable Voting Mandatorily Convertible Preferred
Stock on the Closing Date, (f) fees, costs, expenses and charges in connection with the Company’s
emergence from the Chapter 11 Cases so long as such fees, costs, expenses and charges 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, (g) 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 of Parent and its Subsidiaries
and other non-recurring items; provided, however, cash operational restructuring
charges shall not exceed $22,500,000 for the period commencing on July 1, 2008 through the Maturity
Date, (h) losses from extraordinary items, (i) foreign exchange losses, (j) 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, (k)
non-cash compensation charges, including any such charges arising from stock options, restricted
stock grants or other equity-incentive programs, (l) expenses to the extent actually reimbursed in
cash under any indemnification, and (m) 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 (or recurring with respect to non-Cash) items increasing Consolidated Net
Income for such period, (b) gains from extraordinary items, (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; provided, however, that for purposes of calculating Consolidated
Adjusted EBITDA for any period that includes any of the fiscal quarters ended on or about March 31,
2008, December 31, 2007 and September 30, 2007, Consolidated Adjusted EBITDA for such fiscal
quarter shall be deemed to be $26,800,000, $18,400,000 and $14,300,000, respectively.




          “Consolidated Current Assets” means, as at any date of determination, the total assets of a
Person and its Subsidiaries on a consolidated basis that may properly be classified as current
assets in conformity with GAAP, excluding Cash and Cash Equivalents.




          “Consolidated Current Liabilities” means, as at any date of determination, the total
liabilities of a Person and its Subsidiaries on a consolidated basis that may properly be
classified as current liabilities in conformity with GAAP, excluding the current portion of long
term debt.




          “Consolidated Excess Cash Flow” means, for any Fiscal Year, the excess (if any), of




          (a) (i) Consolidated Adjusted EBITDA of the Credit Parties for such Fiscal Year plus (ii)
reductions to working capital of the Credit Parties for such Fiscal Year (i.e., the decrease,
if
any,



7









 






in Consolidated Current Assets minus Consolidated Current Liabilities from the beginning to
the end of such Fiscal Year);




          minus




          (b) the sum (for such Fiscal Year) of (i) Consolidated Interest Expense paid in cash by the
Credit Parties, (ii) scheduled principal repayments with respect to the permanent reduction of
Indebtedness (including, without limitation, under the Revolving Loan Agreement to the extent
accompanied by a corresponding permanent reduction in commitments thereunder) of the Credit
Parties, to the extent made and permitted to be made hereunder, (iii) all Federal, state, local and
foreign income withholding, franchise, state single business unitary and similar Taxes paid in cash
or payable (only to the extent related to Taxes associated with such Fiscal Year) by the Credit
Parties, (iv) Capital Expenditures to the extent made by the Credit Parties in such Fiscal Year,
(v) the portion of the purchase price paid in cash by the Credit Parties with respect to Permitted
Acquisitions to the extent such Permitted Acquisitions were permitted hereunder, (vi) cash
Investments by the Credit Parties permitted to be made hereunder, (vii) fees paid to the Credit
Parties by Foreign Subsidiaries in respect of management services, reimbursement of direct costs,
financial reporting, tax services, internal audit services, accounting services (viii) fees, costs
and expenses that are incurred by the Credit Parties in connection with equity issuances, issuances
of Indebtedness, dispositions and investments, (ix) additions to working capital of the Credit
Parties (i.e., the increase, if any, in Consolidated Current Assets minus Consolidated Current
Liabilities from the beginning to the end of such Fiscal Year); and (x) without duplication to any
amounts deducted in preceding clauses (i) through (viii), all items added back to Consolidated Net
Income in determining Consolidated Adjusted EBITDA of the Credit Parties that represent amounts
paid in cash;



provided that, to the extent otherwise included herein and without duplication, Net Asset Sale
Proceeds and Net Insurance/Condemnation Proceeds which are applied towards the prepayment of Loans
and/or the repair, replacement, substitution, restoration of or reinvestment in property in
accordance with Section 2.14 shall be excluded from the calculation of Consolidated Excess Cash
Flow; and provided, further, that there shall be excluded from the calculation of
Consolidated Excess Cash Flow for any Fiscal Year any amounts attributable to any Person that was
acquired in a Permitted Acquisition consummated during such Fiscal Year to the extent such amounts
relate to the period prior to the consummation of the relevant Permitted Acquisition.




          “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 closing fees under the Revolving Loan Agreement 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




8









 







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.




          “Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance
sheet amount of all Indebtedness of Parent and its Subsidiaries (or, if higher, the par value or
stated face amount (including, with respect to the Indebtedness hereunder, the Principal Amount of
the Loans) of all such Indebtedness (other than zero coupon Indebtedness)) determined on a
consolidated basis in accordance with GAAP.




          “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.




          “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 G
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,
and all other documents, instruments or agreements executed and delivered by a Credit Party for the
benefit of any Agent or any Lender in connection herewith on or after the date hereof.




9









 








          “Credit Extension” means the making of a Loan or New Term Loan.




          “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.




          “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.




          “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).




          “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.




          “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.




          “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




10









 







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 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.




          “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




11









 







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 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 on or about 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 H-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.




          “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.




12









 








          “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.




          “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.




          “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.




          “Foreign Collateral Agreement” means each pledge agreement or similar instrument, in form and
substance reasonably satisfactory to the Administrative Agent (in consultation with the Lenders)
(or, in the case of any such agreement or instrument executed on the Closing Date, reasonably
satisfactory to each of the Lenders), executed by any Credit Party on the Closing Date or from time
to time thereafter in accordance with Section 5.10 or 5.13 with respect to the Capital Stock of any
Foreign Subsidiary, as




13









 







such Foreign Collateral Agreement may be amended, restated, supplemented or
otherwise modified from time to time.




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




          “Funding Amount” means an amount in cash equal to each Lender’s pro rata share of the Loan
Proceeds.




          “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.




          “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 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.




14









 








          “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 Amount Date” as defined in Section 2.25.




          “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 any Lien on any property or asset owned by that Person
regardless of whether the indebtedness secured




15









 







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 H-1, as it may be amended, supplemented, or otherwise modified from time to time.




          “Interest Payment Date” means with respect to (i) any Loan that is a Base Rate Loan, each
March 31, June 30, September 30 and December 31 of each year, commencing on the first such date




16









 







to
occur after the Closing Date and the final maturity date of such Loan; and (ii) any Loan that is a
LIBOR Loan, the last day of each LIBOR Period applicable to such Loan; provided, in the
case of each LIBOR Period of longer than three months “Interest Payment Date” shall also include
each date that is three months, or an integral multiple thereof, after the commencement of such
LIBOR Period.




          “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.




          “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.




          “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”).




          “Joinder Agreement” means an agreement substantially in the form of Exhibit N.




          “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.




          “Landlord Personal Property Collateral Access Agreement” means a Landlord Waiver and Consent
Agreement substantially in the form of Exhibit J 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 or a




17









 







Joinder
Agreement. The term “Lender” shall include, if the context requires, each New Term Loan Lender.




          “Lender Counterparty” means each Lender, each Agent and each of their respective Affiliates
counterparty to a Hedge Agreement (including any Person who is an Agent or 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 an Agent or a Lender, as the case may be) including, without
limitation, each such Affiliate that enters into a joinder agreement with Collateral Agent.




          “Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i) Consolidated
Total Debt as of such day to (ii) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period
ending on such date.




          “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 three or six
months (or, if available to all of the Lenders, nine or twelve months) as selected by Company in
the applicable Funding Notice or Conversion/Continuation Notice, (i) initially, commencing on the
Closing 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 the page of the
Reuters Screen which displays an average British Bankers Association Interest Settlement Rate (such
page currently being 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 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; provided, that at no time shall the LIBOR Rate be less
than 3% per annum.




          “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 or license in the
nature thereof) and




18









 







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 a loan made by a Lender to Company pursuant to Section 2.1 and shall include, if
the context requires, New Term Loans.




          “Loan Proceeds” means an amount in cash, equal to $67,000,000, which constitutes the net cash
proceeds of the Loans made on the Closing Date.




          “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, 2013, and (ii) the date of the
acceleration of the Obligations pursuant to Section 8.1.




          “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.




          “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.




19









 








          “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.




          “New Term Loan” as defined in Section 2.25.




          “New Term Loan Commitments” as defined in Section 2.25.




          “New Term Loan Lender” as defined in Section 2.25.




          “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).




          “Note” means a promissory note substantially in the form of Exhibit B, 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 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) or Hedge Agreement, 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




20









 







bankruptcy proceeding), payments for early termination of Hedge Agreements,
fees, expenses, indemnification or otherwise.




          “Obligee Guarantor” as defined in Section 7.7.




          “Old Dura” as defined 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 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.




          “Parent” as defined in the preamble hereto.




          “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;




          (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;





21









 








          (d) with respect to any Permitted Acquisition by the Credit Parties, 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 (as
determined in accordance with Section 6.8(b));




          (e) with respect to any Permitted Acquisition by the Credit Parties, 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); and




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




          “Permitted Holders” means each of Pacificor, LLC, Bennett Management Corporation, Wilfrid
Aubrey LLC, DuPont Capital Management, Frontier Ridge Investments LLC, 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.




          “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.




22









 








          “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.




          “PIK Election” as defined in Section 2.8.




          “PIK Interest” as defined in Section 2.8.




          “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 I, 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. Any Lender may make commercial loans or other loans at rates of interest at, above or
below the Prime Rate.




          “Principal Amount” means, as the context requires, (i) the aggregate outstanding unpaid
principal amount of the Loans, equal to $83,750,000 when made on the Closing Date, as the same may
be increased pursuant to Section 2.8 hereof, decreased pursuant to Sections 2.13 and 2.14 hereof or
otherwise adjusted in accordance herewith (including the making of New Term Loans); or (ii) each
Lenders’ Pro Rata Share thereof.




          “Principal Office” means, for each Agent, 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.




          “Pro Rata Share” means, at any time, with respect to each Lender, the percentage obtained by
dividing (A) an amount equal to the Principal Amount held by that Lender at such time by (B) an
amount equal to the Principal Amount of all Loans at such time.




          “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.




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




          “Registration Rights Agreement” means that certain Registration Rights Agreement, dated as of
June 27, 2008, entered into by and among Parent, each of the Lenders party hereto as of the Closing
Date and each of the other parties listed on the signatures pages thereto.




23









 








          “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 U.S. Securities and Exchange
Commission under the Securities Act and Exchange Act as in effect from time to time.




          “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, at any time, one or more Lenders having or holding more than 50% of
the Principal Amount at such time; provided, however, that Requisite Lenders shall,
in any event, consist of at least two (2) Lenders that are not Affiliates of each other, unless, at
such time, there is only a single Lender or all Lenders are Affiliates of each other;
provided, further, that for the purposes of tabulating “Requisite Lenders” in
connection with an acceleration of the Obligations pursuant to Section 8.1 and with any amendments,
modifications, terminations or waivers requiring Requisite Lender consent pursuant to Section
10.5(a), if any Lender (together with its Affiliates), at the time of any such tabulation, has or
holds (a) issued and outstanding capital stock of Parent representing 10% or more of the voting
power in elections for directors of Parent on a fully-diluted basis and (b) 30% or more of the
Principal Amount, then such tabulation shall be determined by (I) reducing the Principal Amount
held by such Lender (together with its Affiliates) so as to equal, in the aggregate, 30% of the
Principal Amount (such reduction to be ratable among such Lender and its Affiliates) and (II)
ratably increasing the Principal Amount held by Lenders other than such Lender (together with its
Affiliates) so as to equal, in the aggregate, 70% of the Principal Amount.




          “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 defeasance), sinking fund or similar payment with
respect to, any Subordinated Indebtedness or any intercompany Indebtedness.




          “Revolving Loan Agreement” means that certain Senior Secured Revolving Credit and Guaranty
Agreement, dated as of June 27, 2008, entered into by and among Company, Parent, the guarantors
party thereto from time to time, the lenders party thereto from time to time, General Electric
Capital Corporation, as administrative agent and as collateral agent, Wachovia Bank, National
Association, as syndication agent, and Bank of American, N.A., as issuing bank and documentation
agent.





24









 








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




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




          “Secured Parties” means the Agents, Lenders, and the Lender Counterparties and shall include,
without limitation, all former Agents, Lenders, and Lender Counterparties to the extent that any
Obligations owing to such Persons were incurred while such Persons were Agents, Lenders 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, 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.




          “Subject Transaction” as defined in Section 6.7(b).




          “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 (in
consultation with the Lenders).




          “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.





25









 








          “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.




          “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.




     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, 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.




26









 








     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




     2.1. Loans.



          (a) Loan Commitments. Subject to the terms and conditions hereof, each Lender
severally agrees to make, on the Closing Date, a Loan to Company in an amount equal to such
Lender’s Commitment, which Loan shall by funded by each such Lender in an amount equal to the
Funding Amount of such Lender. Company may make only one borrowing under the Commitment, which
shall be on the Closing Date. Any amount borrowed under this Section 2.1(a) and subsequently
repaid or prepaid may not be reborrowed. Subject to Sections 2.13(a) and 2.14, all amounts owed
hereunder with respect to the Loans shall be paid in full no later than the Maturity Date. Each
Lender’s Commitment shall terminate immediately and without further action on the Closing Date
after giving effect to the funding of its Funding Amount to Company in respect of such Lender’s
Commitment. For the avoidance of doubt, it is understood and agreed that, immediately as of the
Closing Date, interest shall accrue on the full stated Principal Amount of the Loans and the full
stated Principal Amount shall be due and payable on the Maturity Date.




          (b) Borrowing Mechanics for Loans.





          (i) Company shall deliver to Administrative Agent a fully executed Funding Notice no
later than two Business Days prior to the Closing Date. Promptly upon receipt by
Administrative Agent of such Funding Notice, Administrative Agent shall notify each Lender
of the proposed borrowing.




          (ii) Each Lender shall make its Funding Amount available to Administrative Agent not
later than 12:00 p.m. (noon) (New York City time) on the Closing Date, by wire transfer of
same day funds in Dollars, at the Principal Office designated by Administrative Agent. Upon
satisfaction or waiver of the conditions precedent specified herein, Administrative Agent
shall make the Loan Proceeds available to Company on the Closing Date by causing an amount
of same day funds in Dollars equal to the Loan Proceeds received by Administrative Agent to
be credited to the account of Company designated by Company in writing to Administrative
Agent or such other account designated by Company in writing to Administrative Agent.



     2.2. [Reserved]



     2.3. [Reserved]



27









 





     2.4. [Reserved]



     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) [Reserved.]




     2.6. Use of Proceeds. Company shall utilize the proceeds of the Loans, together with the
proceeds of the European AR Factoring Facilities, the European First Lien Term Loan Agreement, the
Revolving Loan Agreement and additional cash to be repatriated from the Company’s Foreign
Subsidiaries, 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 and (iii) to provide financing for working capital purposes and general
corporate purposes. 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 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 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. 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 reasonable prior notice, and
Administrative Agent shall have the right to share any information obtained by it in connection
with any such inspection



28









 






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 Loans to Company.




     2.8. Interest on Loans.



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





          (i) in the case of (A) a Base Rate Loan, at the Base Rate plus the Applicable Margin in
effect at such time for Base Rate Loans or (B) in the case of a LIBOR Loan, at the LIBOR
Rate plus the Applicable Margin in effect at such time for LIBOR Loans;




          (ii) on any Interest Payment Date, Company may, at its option, elect to pay interest on
the Loans: (1) entirely in cash (“Cash Interest”) or (2) entirely in kind by having such
interest capitalized, compounded and added to the Principal Amount of the Loans (“PIK
Interest”). PIK Interest shall bear interest from the date of the applicable Interest
Payment Date at the same rate per annum and payable in the same manner as in the case of the
original principal amount of the Loans, and shall otherwise be treated as principal
hereunder for all purposes and shall be considered a Loan of the same Type for which the
interest was capitalized. To the extent the Company elects to pay PIK Interest (a “PIK
Election”), Company shall provide
Administrative Agent written notice of its PIK Election with respect to any Interest
Payment Date at least ten days prior to the immediately preceding Interest Payment Date;
provided that with respect to the first Interest Payment Date after the Closing
Date, such election may be made at any time up to five days after the Closing Date. If a
PIK Election is not made by Company in a timely fashion or at all with respect to an
Interest Payment Date, the Company shall pay all such interest as PIK Interest.
Administrative Agent shall provide written notice of any PIK Election to all Lenders
promptly upon receipt thereof.



          (b) The basis for determining the rate of interest with respect to any 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. If on any day a 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 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



29









 






for any LIBOR Loan in the Funding Notice or any Conversion/Continuation Notice, Company
shall be deemed to have selected a LIBOR Period of three months. 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 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.




          (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 day 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, in each case 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 (i) 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; (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 of the Loans, including final maturity of the Loans; provided,
however, with respect to any voluntary prepayment of a Base Rate Loan, accrued interest
shall instead be payable on the next succeeding Interest Payment Date (except if all Loans are
being repaid in full).




     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 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




30









 







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 written election of Requisite Lenders or Administrative Agent, the Principal Amount
of all Loans outstanding 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 the applicable Loans (or, in the case of
any such fees and other amounts, at a rate which is 2% per annum in excess of the interest rate
otherwise payable hereunder for Base Rate Loans); provided, in the case of LIBOR Loans,
upon the expiration of the LIBOR Period in effect at the time any such increase in interest rate is
effective such LIBOR Loans shall thereupon become Base Rate Loans and shall thereafter bear
interest payable upon demand at a rate which is 2% per annum in excess of the interest rate
otherwise payable hereunder for Base Rate Loans. 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. Company agrees to pay to Agents such other fees in the amounts and at the times
separately agreed upon.



     2.12. [Reserved]



     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.




          (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; and




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


in each case given to Administrative Agent 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). 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).




     2.14. Mandatory Prepayments. Subject to the provisions of the Intercreditor Agreement, the
European Intercreditor Agreement and the Revolving Loan Agreement, the Loans shall be repaid in the
manner provided in Sections 2.14(a) through (g) below.



31









 





          (a) Asset Sales. Promptly but in no event later than two Business Days following the
date of receipt by any Credit Party 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 the Loans and accrued interest thereon in an
aggregate amount equal to such Net Asset Sale Proceeds; provided, however, that
Company will only be required to make prepayments 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; and further provided, so long as no Event of
Default shall have occurred and be continuing, Company shall have the option, directly or through
one or more of its Subsidiaries, to invest Net Asset Sale Proceeds within three hundred sixty-five
days of receipt thereof (or within four hundred fifty-five days of receipt thereof if Company or
any of its Subsidiaries is contractually committed to invest such proceeds within three hundred and
sixty-five days thereof) in assets used or useful in the business of Company and its Subsidiaries.




          (b) Insurance/Condemnation Proceeds. Promptly, but in no event later than one
Business Day following the date of receipt by any Credit Party or Administrative Agent or
Collateral Agent as loss payee, of any Net Insurance/Condemnation Proceeds, Company shall prepay
the Loans and accrued interest thereon in an aggregate amount equal to such Net
Insurance/Condemnation Proceeds; provided, so long as no Event of Default shall have
occurred and be continuing, Company shall have the
option, directly or through one or more of its Subsidiaries to invest such Net
Insurance/Condemnation Proceeds within three hundred sixty-five days of receipt thereof (or within
four hundred fifty-five days of receipt thereof if Company or any of its Subsidiaries is
contractually committed to invest such proceeds within three hundred and sixty-five days thereof)
in long term productive assets of the general type used in the business of Company and its
Subsidiaries, which investment may include the repair, restoration or replacement of the applicable
assets thereof.




          (c) In the event that there shall be Consolidated Excess Cash Flow for any Fiscal Year
(commencing with the Fiscal Year ending December 31, 2009), Company shall, no later than one
hundred-twenty days after the end of such Fiscal Year, prepay the Loans and accrued interest
thereon in an aggregate amount equal to (i) 75% of such Consolidated Excess Cash Flow minus
(ii) voluntary repayments of the Loans and voluntary prepayments of the Indebtedness under the
Revolving Loan Agreement, so long as the commitments thereunder are permanently reduced thereby;
provided, that if, as of the last day of the most recently ended Fiscal Year, the Leverage
Ratio (determined for any such period by reference to the Compliance Certificate delivered pursuant
to Section 5.1(c) calculating the Leverage Ratio as of the last day of such Fiscal Year) shall be
2.25:1.00 or less, Company shall only be required to make the prepayments otherwise required hereby
in an amount equal to (i) 50% of such Consolidated Excess Cash Flow minus (ii) voluntary
repayments of the Loans and voluntary prepayments of the Indebtedness under the Revolving Loan
Agreement, so long as the commitments thereunder are permanently reduced thereby; and
provided, further, that (A) so long as no Default or Event of Default shall have
occurred and be continuing, Company shall have the option, directly or through one or more of its
Subsidiaries, to invest such Consolidated Excess Cash Flow within three hundred sixty-five days of
the applicable date of determination (or within four hundred fifty-five days of the applicable date
of determination if Company or any of its Subsidiaries is contractually committed to invest such
Consolidated Excess Cash Flow within three hundred and sixty-five days thereof) in assets used or
useful in the business of Company and its Subsidiaries.




          (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 by any Credit Party (other than with
respect to any Indebtedness permitted to be incurred pursuant to Section 6.1(m)) after the Closing





32









 







Date, Company shall prepay the Loans and accrued interest thereon 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) [Reserved].




          (f) Prepayment Certificate. Concurrently with any prepayment of the Loans pursuant to
Sections 2.14(a) through 2.14(d), Company shall deliver to Administrative Agent a certificate of an
Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds or
Consolidated Excess Cash Flow, 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.




     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 to prepay outstanding Loans, on a pro rata basis, to
the full extent thereof, subject to the terms of the Intercreditor Agreement.




          (b) Any prepayment of any Loan pursuant to Sections 2.14(a) through 2.14(d) shall be applied,
without premium or penalty (except as provided in Section 2.18(c)) to prepay outstanding Loans, on
a pro rata basis, to the full extent thereof; provided that any Lender may elect, by
written notice to Administrative Agent within one Business Day of notice of such prepayment and in
the manner specified by Administrative Agent, prior to any mandatory prepayment of Loans required
to be made by Company pursuant to Section 2.14, to decline all or any portion of any mandatory
prepayment of its Loans, in which case the aggregate amount of the mandatory prepayment that would
have been applied to prepay such Loans but was so declined shall be re-offered to those Lenders
under this Agreement who have initially accepted such mandatory prepayment (and the prepayment
amount of each such Lender shall be based upon each accepting Lender’s pro rata share of the
outstanding principal amounts of all Loans extended by all accepting Lenders in the re-offer). In
the event of such a re-offer, the relevant Lenders may elect, by written notice to Administrative
Agent within three Business Days of such re-offer and in the manner specified by Administrative
Agent, to decline all or any portion of the amount of such mandatory prepayment that is re-offered
to them, in which case the aggregate amount of the prepayment that would have been applied to
prepay such Loans pursuant to such re-offer but was so declined shall be retained by Company to be
used for any other purpose not prohibited by this Agreement.




          (c) [Reserved].




          (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




33









 







date due at Administrative Agent’s Principal Office for the account of Lenders; for purposes of
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 shall be accompanied by
payment of accrued interest on the principal amount being repaid or prepaid, and all such payments
(and, in any event, any payments in respect of any Loan on a date when interest is due and payable
with respect to such Loan) shall be applied to the payment of interest then due and payable before
application to principal.




          (c) 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”, 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.




          (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 Obligations in respect of any fees, expense reimbursements or
indemnities then due to any Agent;



34









 






          (ii) second, to pay Obligations in respect of any expense reimbursements or indemnities
then due to the Lenders;




          (iii) third, to pay Obligations in respect of any fees then due to the Lenders;




          (iv) fourth, to pay interest then due and payable in respect of the Loans;




          (v) fifth, to pay or prepay Principal Amounts on the Loans;




          (vi) sixth, to pay amounts due and owing Lender Counterparties in respect of Hedge
Agreements; and




          (vii) seventh, 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) – (vi) above, then 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 interest in the
aggregate outstanding Obligations described in such clauses. The order of priority set forth in
clauses (i) – (ii) 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, 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
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.



35









 





          (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) the Funding Notice or any 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
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




36









 







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 the date
specified therefor in the Funding Notice or the 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 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 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




37









 







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 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 participations therein or
other obligations hereunder with respect to the Loans 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 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.




          (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 Tax from any sum paid or payable by any
Credit Party to any Agent or any Lender 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




38









 







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),
with respect to Taxes other than 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), 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 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 (or are subject to a reduced rate of) 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 reduction, or,



39









 




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 D 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 (a “Certificate
Re Non-Bank Status”) prior to becoming a Lender, or upon the expiration of any form or certificate
previously provided by such Lender, or upon any change of the applicable lending office of such
Lender that renders such form or certificate invalid, or upon the occurrence of any other event
requiring a change in such form or certificate, or at such other time as may
be reasonably required in writing by Company or Administrative Agent. Each foreign Lender
shall promptly notify the Company and the Administrative Agent at any time it determines it is no
longer in a position to provide any previously delivered certificate or form. 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 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 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) unless otherwise
provided, the provisions of this Section 2.20 shall not apply to any participants.




          (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.




40









 








     2.21. Obligation to Mitigate. Each Lender agrees that, as promptly as practicable after the
officer of such Lender responsible for administering its Loans, 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 Loans, 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 Loans through such other office or in accordance with such other measures, as the case may be,
would not otherwise adversely affect such 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 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.



     2.22. [Reserved].



     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 written request for such withdrawal; or (b) 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, or Non-Consenting Lender (the “Terminated Lender”), Company may, by giving
written notice to 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 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; provided, (1) on the date of such assignment, the
Replacement Lender shall pay to Terminated Lender an amount equal to the sum of the Principal
Amount of, and all accrued interest on, all outstanding Loans of the Terminated Lender, (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, such Terminated Lender
shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such



41









 







Terminated Lender to indemnification hereunder shall survive as to such Terminated Lender. Each
Lender agrees that if Company exercises its option hereunder to cause an assignment by such Lender
as a Non-Consenting Lender or Terminated Lender, such Lender shall, promptly after receipt of
written notice of such election, execute and deliver all documentation necessary to effectuate such
assignment in accordance with Section 10.6. In the event
that a Lender does not comply with the requirements of the immediately preceding sentence
within one Business Day after receipt of such notice, each Lender hereby authorizes and directs the
Administrative Agent to execute and deliver such documentation as may be required to give effect to
an assignment in accordance with Section 10.6 on behalf of a Non-Consenting Lender or Terminated
Lender and any such documentation so executed by the Administrative Agent shall be effective for
purposes of documenting an assignment pursuant to Section 10.6.



     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.



     2.25. Incremental Facility. Company may by written notice to Administrative Agent elect to
request the establishment of one or more new term loan commitments (the “New Term Loan
Commitments”), by an amount not in excess of $16,250,000 in the aggregate and not less than
$5,000,000 individually (or such lesser amount which shall be approved by Administrative Agent (in
consultation with the Lenders) or such lesser amount that shall constitute the difference between
$16,250,000 and all such New Term Loan Commitments obtained prior to such date), and integral
multiples of $500,000 in excess of that amount. Each such notice shall specify (A) the date (each,
an “Increased Amount Date”) on which Company proposes that the New Term Loan Commitments shall be
effective, which shall be a date not less than 10 Business Days after the date on which such notice
is delivered to Administrative Agent and (B) the identity of each Lender or other Person that is an
Eligible Assignee (each, a “New Term Loan Lender”) to whom Company proposes any portion of such New
Term Loan Commitments be allocated and the amounts of such allocations; provided that any
Lender approached to provide all or a portion of the New Term Loan Commitments may elect or
decline, in its sole discretion, to provide a New Term Loan Commitment. Such New Term Loan
Commitments shall become effective, as of such Increased Amount Date; provided that (1) no
Default or Event of Default shall exist on such Increased Amount Date before or after giving effect
to such New Term Loan Commitments, as applicable; (2) both before and after giving effect to the
making of any Series of New Term Loans, each of the conditions set forth in Section 3.2 shall be
satisfied; (3) Company and its Subsidiaries shall be in pro forma compliance with each the covenant
set forth in Section 6.8(a) as of the last day of the most recently ended Fiscal Quarter after
giving effect to such New Term Loan Commitments; (4) the New Term Loan Commitments shall be
effected pursuant to one or more Joinder Agreements executed and delivered by Company, New Term
Loan Lender and Administrative Agent, and each of which shall be recorded in the Register and each
New Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) Company
shall make any payments required pursuant to Section 2.18(c) in connection with the New Term Loan
Commitments; and (6) Company shall deliver or cause to be delivered any legal opinions or other
documents reasonably requested by Administrative Agent (in consultation with the Lenders) in
connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be
designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement.



     On any Increased Amount Date on which any New Term Loan Commitments of any Series are
effective, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term
Loan Lender of any Series shall make a Loan to Company (a “New Term Loan”) in an amount equal to
its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall



42









 







become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New
Term Loans of such Series made pursuant thereto. Administrative Agent shall notify Lenders
promptly
upon receipt of Company’s notice of each Increased Amount Date and in respect thereof the
Series of New Term Loan Commitments and the New Term Loan Lenders of such Series.



          The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series
shall be, except as otherwise set forth herein, identical to the Loans including, without
limitation, with regard to any security interest granted and the priority thereof. In any event,
the yield applicable to the New Term Loans of each Series shall be determined by Company and the
applicable new Lenders and shall be set forth in each applicable Joinder Agreement;
provided however that the yield applicable to the New Term Loans (after giving
effect to all upfront or similar fees or original issue discount payable with respect to such New
Term Loans) shall not be greater than the applicable yield payable pursuant to the terms of this
Agreement as amended through the date of such calculation with respect to the Loans (including any
upfront or similar fees or original issue discount payable to the initial Lenders hereunder) unless
the interest rate with respect to the Loans is increased so as to cause the then applicable yield
under this Agreement on the Loans to equal the yield then applicable to the New Term Loans (after
giving effect to all upfront or similar fees or original issue discount payable with respect to
such New Term Loans). Each Joinder Agreement may, without the consent of any other Lenders, effect
such amendments to this Agreement and the other Credit Documents as may be necessary or
appropriate, in the opinion of Requisite Lenders, to effect the provision of this Section 2.25.




SECTION 3. CONDITIONS PRECEDENT




     3.1. Closing Date. The obligation of any Lender to make a Loan is subject to the
satisfaction, or waiver in accordance with Section 10.5, of the following conditions; provided,
that, with respect to deliverables made to the Administrative Agent, each such deliverable shall be
in form and substance satisfactory to the each of the Lenders (and each Lender shall be responsible
for reviewing such deliverable) and the Administrative Agent shall not be responsible in any way
for such form and substance and shall not be responsible for ascertaining the adequacy or
effectiveness of such deliverables:



          (a) Credit Documents. Administrative Agent and each of the 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 and (v) such other
documents as Administrative Agent or any Lender 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.



43









 






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




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




          (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 giving
effect to original issue discount thereon) of the European First Lien Term Loan Agreement
and (C) at least $110,000,000 in revolving credit commitments under the Revolving Loan
Agreement.




          (iv) The Administrative Agent and each of the Lenders shall have received reasonably
satisfactory evidence that all obligations (other than contingent obligations contemplated
by the Plan for which no claim has been made) under the Existing DIP Agreements shall have
been (or substantially concurrently will be) repaid in full in cash, the Existing DIP
Agreements shall have been (or substantially concurrently will be) terminated and all liens,
guarantees and security interests related thereto shall have been (or substantially
concurrently will be) terminated or released.



          (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
each of the Lenders.




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




          (f) Financial Statements and Projections and Operating Results.





          (i) Administrative Agent and each of the Lenders shall have received (a) unaudited
financial statements for the period ended April 27, 2008, including a statement of
operations for the 12-month period ending on such date, 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 each of
the Lenders, (b) a proforma closing balance sheet, adjusted to give effect to the
transactions contemplated by the



44









 







Plan, in form and substance reasonably satisfactory to each of the Lenders, and (c)
projections and supporting documentation with respect to Parent and its Subsidiaries in form
and substance reasonably satisfactory to each of the Lenders 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, as well as actual results for the
twelve months prior to the Closing Date).




          (ii) Consolidated Adjusted EBITDA for the four most recently completed Fiscal Quarters
for the period ended April 27, 2008, as shown on the financial statements referred to in
clause (i) of this Section 3.1(f), shall be not less than $80,000,000.



          (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, 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 each of the
Lenders.




          (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 its benefit and the benefit of the other Secured Parties,
as additional insured and loss payee thereunder to the extent required under Section 5.5.




          (i) Opinions of Counsel to Credit Parties. The Agents, each of the 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 any Lender shall reasonably request, dated as of the Closing Date, and otherwise
in form and substance reasonably satisfactory to each of the Lenders (and each Credit Party hereby
instructs such counsel to deliver such opinions to Agents and each of the Lenders).




          (j) Fees. Company shall have paid (i) to the Agents the fees payable on the Closing
Date referred to in Section 2.11 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 and (ii) to each of the Lenders, all remaining invoiced
fees and reasonable out-of-



45









 






pocket expenses (including reasonable fees and out-of-pocket expenses of counsel) required to
be paid to the Lenders on or before the Closing Date.




          (k) Closing Date Certificate. Company shall have delivered to Administrative Agent
and each of the Lenders 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 any
Lender, 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.




          (m) Material Adverse Change. There shall not have occurred any event or circumstance
since December 31, 2006 which has resulted in a Material Adverse Effect; provided,
however, for purposes of this Section 3.1(m), none of the matters disclosed in (x) the
Disclosure Statement filed in connection with the Plan of Reorganization prior to the date of
hereof and/or (y) Company’s Annual Report on Form 10-K for the year ended December 31, 2006, 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 any Lender and its counsel shall be
satisfactory in form and substance to such Lender and such counsel, and Administrative Agent and
each of the Lenders and such counsel shall have received all such counterpart originals or
certified copies of such documents as Administrative Agent and each of the Lenders may reasonably
request.




          (o) Convertible Preferred Stock Issuance. Each of the Lenders shall have received,
each in accordance with its Pro Rata Share, an aggregate number of shares of the Series A
Redeemable Voting Convertible Preferred Stock of Parent equal to 83,750. Each of the Lenders shall
have received copies of the Registration Rights Agreement originally executed and delivered by
Parent.




          (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 each Lender. 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 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 each of the Lenders. The material documentation to effectuate the Plan shall have
terms and conditions reasonably satisfactory to each of the Lenders, and no provision of such
documentation shall have been waived, amended, supplemented or otherwise modified in any material
respect that is adverse to the Lenders in any material respect without the consent of each of the
Lenders.




46









 








          (q) Availability. On the Closing Date, after giving effect to each of the financing
transactions made on the Closing Date and payment of all costs and expenses related thereto, Excess
Availability (as defined in the Revolving Loan Agreement) shall not be less than the greater of
$40,000,000 and the amount of Excess Availability (as defined in the Revolving Loan Agreement) that
is a condition precedent to borrowings on the Closing Date under the Revolving Loan Agreement.




          (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 each of the Lenders.




          (s) Patriot Act. The Agents and each of the 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 each of the 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 made on the Closing Date, (ii) the
Indebtedness contemplated by the European First Lien Term Loan Agreement, the European AR Factoring
Facilities and the Revolving 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.




          (u) No Default or Event of Default. No default or event of default shall have
occurred and be continuing under any other post-petition material debt of the Credit Parties as of
the Closing Date (after giving effect to the making of the Loans and each other extension of credit
in connection with the financing transactions of the Credit Parties occurring on the Closing Date).




          (v) Commitments. Company shall have obtained Commitments hereunder for at least
$83,750,000 in stated principal amount.




          (w) Letter of Direction. Administrative Agent shall have received a duly executed
letter of direction from Company addressed to Administrative Agent, on behalf of itself and the
Lenders, directing the disbursement on the Closing Date of the proceeds of the Loans.



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
on any Credit Date, including the Closing Date, is 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) 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



47









 







Date and true and correct in all material respects on any other Credit 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;




          (iii) 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 and each Lender shall be entitled, but not obligated to, request and receive, prior to
the making of any Loans, 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
Lender, 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
Agent telephonic notice (or electronic mail) by the required time of the proposed borrowing or
conversion/continuation, 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 or continuation/conversion. 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 the Agents and Lenders to enter into this Agreement and the Lenders to make
each Credit Extension to be made thereby, each Credit Party represents and warrants to each Agent
and each Lender, 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



48









 







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 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



49









 







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 Parent of the future financial performance
of Company 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 December 31, 2006, 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.



     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 federal income 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



50









 






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 a
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’ 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



51









 




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.



     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



52









 







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 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 in writing 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



53









 







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 made on the Closing
Date, (b) the Indebtedness contemplated by the European First Lien Term Loan Agreement, the
European AR Factoring Facilities and the Revolving 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), 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) Quarterly Financial Statements. Within 45 days after the end of each of the first
three Fiscal Quarters of each Fiscal Year, the unaudited consolidated and Consolidating balance
sheets 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 Quarter and the related unaudited consolidated and Consolidating (and with respect
to statements of income, consolidating) statements of income, stockholders’ equity and cash flows
of Parent and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of
the then current Fiscal Year to the end of such Fiscal Quarter, 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 projected financial statements delivered pursuant to
Section 5.1(n), all in reasonable detail, together with a Financial Officer Certification and a
Narrative Report with respect thereto.




          (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



54









 






selected by Parent, and
reasonably satisfactory to Administrative Agent (in consultation with the Lenders) (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 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 (in
consultation with the Lenders).




          (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 clause (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 or Requisite Lenders to enable Lenders and
their counsel to evaluate such matters.




55









 








          (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 (A) at the request of Administrative Agent or Requisite Lenders, 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; (B) 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
(C) copies of such other documents or
governmental reports or filings relating to any Employee Benefit Plan as Administrative Agent
or Requisite Lenders 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.




          (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



56









 






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) [Reserved.]




          (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 (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 to or received from the agent or lenders
under the European First Lien Term Loan Agreement and the Revolving Loan Agreement (other than
routine reporting or reports and notices (or corresponding reports and notices) already delivered
to the Administrative Agent and the Lenders under this 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 federal income 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,



57









 







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, 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 itself and the other 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 the Secured Parties 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. 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



58









 







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).



     5.7. Lenders Meetings. Company will, upon the reasonable request of Requisite Lenders,
participate in a conference call with Lenders once during each Fiscal Year at such time as may be
agreed to by Company and Requisite Lenders.



     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:





          (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 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;



59









 






          (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 Requisite Lenders 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, the Requisite Lenders or the administrative agent or
collateral agent under the Revolving 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 or Requisite Lenders may reasonably request and
in form and substance reasonably satisfactory to Administrative Agent (in consultation with the
Lenders). 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 Documents, foreign filings and related local opinions



60









 






requested shall be completed on or
prior to the 60th day after any such documentation is requested (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, the Requisite Lenders or the administrative agent or
collateral agent under the Revolving 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 its benefit and for the benefit of the other 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 or Requisite
Lenders may reasonably request and in form and substance satisfactory to Administrative Agent (in
consultation with the Lenders). 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) As soon as practicable, and in any event within ten days, following the acquisition or
formation of any first-tier Foreign Subsidiary, the Company shall give notice of such acquisition
or formation to the Administrative Agent. Upon the request by Administrative Agent (in
consultation with the Lenders), Company shall cause all Capital Stock of any material first-tier
Foreign Subsidiary acquired or formed after the Closing Date 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 (in consultation with the
Lenders), together with related written opinions of counsel to the Credit Parties as to such
matters as Administrative Agent (in consultation with the Lenders) may reasonably request and in
form and substance reasonably satisfactory to Administrative Agent (in consultation with the
Lenders).




          (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
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 Requisite Lenders 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



61









 






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 or Requisite Lenders 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 or Requisite Lenders 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 satisfactory to the
Administrative Agent (in consultation with the Lenders)).




     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) Subject to the Intercreditor Agreement, 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 (as defined below) 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) Subject to the Intercreditor Agreement, 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) Subject to the Intercreditor Agreement, 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 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.




62












 





          (d) Subject to the Intercreditor Agreement, 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) 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.




     5.13. Post Closing Covenants. Credit Parties 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 (excluding contingent indemnification obligations not due and
payable at or prior to the time the Commitments have been terminated and all other Obligations have
been paid in full), such Credit Party shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 6.



     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
$11,500,000 (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
(in consultation with the Lenders); (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 $1,667,500; 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






63









 







applicable promissory notes or intercompany subordination agreement that in any such
case, is reasonably satisfactory to Administrative Agent (in consultation with the Lenders);




          (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 Revolving Loan Agreement in an
aggregate principal amount not exceeding the Revolving Credit Facility 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;




          (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 $5,750,000 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;






64









 








          (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 $5,750,000
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 €4,600,000;




          (o) Indebtedness existing on the Closing Date under the foreign intercompany notes described
on 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
$1,150,000 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




          (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
€17,250,000 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, in each case
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
Revolving Loan Agreement and this 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);






65









 








          (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;




          (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;






66









 








          (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 $2,300,000 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 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)
customary 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 $1,150,000 in any Fiscal Year pursuant to and in accordance with stock option



67









 




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 $2,300,000; 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 and (d) so long as no Default or Event of
Default has occurred and is continuing or would result therefrom, the Credit Parties may make
repayment 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 any Fiscal Year.




     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 Revolving 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 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 $11,500,000 (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;





68









 








          (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 €4,600,000; and




          (i) Investments in any Joint Venture in an aggregate amount not to exceed at any time
$2,300,000 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;






69









 








          (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;




          (t) Capital Expenditures with respect to Company and its Subsidiaries permitted by Section
6.8(c); and




          (u) 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) Leverage Ratio. The Credit Parties shall not permit the Leverage Ratio as of the
last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending September 30, 2008, to
exceed the correlative ratio indicated:




	 	 	 	 	 
	Fiscal Quarter	 	Leverage Ratio
	September 30,
2008
	 	 	3.5:1.00	 
	December 31, 2008
	 	 	3.5:1.00	 
	March 31, 2009
	 	 	3.5:1.00	 
	June 30, 2009
	 	 	3.5:1.00	 
	September 30, 2009
	 	 	3.25:1.00	 
	December 31, 2009
	 	 	3.25:1.00	 
	March 31, 2010
	 	 	3.25:1.00	 
	June 30, 2010
	 	 	3.25:1.00	 
	September 30, 2010 and thereafter
	 	 	2.75:1.00	 






          (b) Certain Calculations. With respect to any period during which a Permitted
Acquisition or an Asset Sale has occurred (each, a “Subject Transaction”), for purposes of
determining compliance with the financial covenant set forth in Section 6.7(a), Consolidated
Adjusted EBITDA and the components of Consolidated Interest Expense shall be calculated with
respect to such period on a pro forma basis (including pro forma adjustments arising out of events
which are directly attributable to a specific transaction, are factually supportable and are
expected to have a continuing impact, in each case determined on a basis consistent with Article 11
of Regulation S-X promulgated under the Securities Act and as interpreted by the staff of the
Securities and Exchange Commission, which would include cost savings resulting from head count
reduction, closure of facilities and similar restructuring charges, which pro forma adjustments
shall be certified by the chief financial officer of Parent) using the historical financial
statements of any business so acquired or to be acquired or sold or to be sold and the consolidated
financial statements of Parent and its Subsidiaries which shall be reformulated as if such Subject
Transaction, and any Indebtedness incurred or repaid in connection therewith, had been consummated
or incurred or repaid at the beginning of such period.






70









 








          (c) Capital Expenditures. The Credit Parties shall not incur, nor permit their
Subsidiaries to incur, Capital Expenditures in the aggregate during each Fiscal Year set forth
below in excess of the maximum amount set forth below opposite such Fiscal Year:




	 	 	 	 	 
	Fiscal Year	 	Maximum Capital Expenditures
	2008
	 	$	75,000,000	 
	2009
	 	$	75,000,000	 
	2010 and thereafter
	 	$	80,000,000	 





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.




     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 liquidate, wind-up or dissolve itself (or suffer any
liquidation
or dissolution), or convey, sell, lease, 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 to the Collateral Agent 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






71









 







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 to the Collateral Agent 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 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 €23,000,000;




          (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 Transactions 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);




          (g) Asset Sales to the extent made pursuant to Sections 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;




          (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 $5,750,000; 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 $11,500,000 in the aggregate;






72









 








          (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;




          (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; and




          (s) Investments made in accordance with Section 6.7.




     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
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 Revolving 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 Transactions
with respect to assets of Foreign Subsidiaries so long as the aggregate proceeds of all such sales
does not exceed €23,000,000; 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 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



73









 




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 Revolving 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 Indebtedness, Organizational Documents and Certain Other Agreements;
Etc. No Credit Party shall, nor shall it permit any of its Subsidiaries to, (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 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
Revolving 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 Revolving 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 Federal Employer Identification Number 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



74









 




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 its benefit and for the
ratable benefit of the other 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 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



75









 




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 its benefit and
for the ratable benefit of the other 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;




          (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,






76









 







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 (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



77









 




(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.




     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, 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, 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



78









 




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. 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.



     7.10. Financial Condition of Company . The Loans 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





79









 







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
Requisite Lenders of such release upon the reasonable written 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 and expenses 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




     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 the
principal of any Loan, whether at stated maturity, by acceleration, by notice of voluntary
prepayment, by mandatory prepayment or otherwise; or (ii) 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 $5,750,000 or more or with an aggregate
principal amount of $11,500,000 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; provided, that an Event of Default (other than a payment default) under and as defined
in the Revolving Loan Agreement (a “Revolving Loan Event of Default”) shall not in and of itself
constitute an Event of Default under this clause until the earlier to occur of (x) a period of
thirty days has elapsed following notice of such Revolving Loan Event of Default from the
administrative agent or any lender under the Revolving Loan Agreement to Company, or from Company
to such administrative agent or any such





80









 







lender under the Revolving Loan Agreement and (y) the
acceleration of the maturity of any of the loans or the termination of any of the commitments under
the Revolving Loan Agreement as a result of such Revolving Loan Event of Default; 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 5.2, 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 its 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 against Parent or any of its 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 its 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 its 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 its 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 its Subsidiaries shall
make any assignment for the benefit of creditors; or (ii) Parent or any of its Subsidiaries shall
be unable, or shall fail generally, or shall admit in writing its



81









 




inability, to pay its debts as
such debts become due; or the board of directors (or similar governing body) of Parent or any of
its 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 $2,875,000 or (ii) in the aggregate at any time an amount in excess of
$11,500,000 (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) Employee Benefit Plans. (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
$5,750,000 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 $287,500 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 $5,750,000 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 shall immediately terminate, (B) each of the following shall immediately become due
and




82









 







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 and (II) all other Obligations; and (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. 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.




SECTION 9. AGENTS




     9.1. Appointment of Agents . Wilmington Trust Company is hereby appointed Administrative Agent and Collateral Agent
hereunder and under the other Credit Documents and each Lender 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 and Lenders 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. Regardless of whether an Event of Default has occurred and is
continuing, 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. Without limiting the generality of the foregoing, the Agents shall not
have any duty to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the Agents are required to
exercise as directed in writing by the Requisite Lenders (or such other number or percentage of the
Lenders as shall be necessary
under the circumstances as provided in Section 10.5). For the avoidance of doubt, neither
Agent shall be responsible for the filing, form or content of any Uniform Commercial Code financing
statements, fixture filings, Mortgages, deeds of trust and such other documents or instruments
entered into or filed on or around the Closing Date.



     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,





83









 







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, Administrative Agent
shall not have any liability arising from confirmations of the amount of outstanding Loans 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, in each case, as determined by a final judgment of a court of
competent jurisdiction. 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 written 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. Each 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 such Agent. Each 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 each 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 such 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 an
Agent, (i) such sub-agent shall be a third party beneficiary under this Agreement with respect to
all such





84









 







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 such Agent and not to any Credit Party, Lender 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. Each Agent shall not be responsible for the
negligence or misconduct of any such sub-agents (other than Affiliates of the Agents) selected by
it with reasonable care




     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, 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, an Assignment Agreement
or a Joinder 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 or as of the date of funding of New
Term Loans, if any. 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.






85









 








     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, in each case, as determined by a final judgment of a court of competent jurisdiction.
If any indemnity furnished to any Agent for any purpose 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 or without 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. 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) as reasonably requested, 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. If no
successor agent has accepted appointment as Administrative Agent or Collateral Agent, as the case
may be, by the date that is thirty days following a retiring Agent’s notice of resignation or
removal, the retiring Agent’s resignation shall nevertheless thereupon become effective, and the
Requisite Lenders shall assume and perform all of the duties of such Agent hereunder until such
time, if any, as the Requisite Lenders appoint a successor agent as provided above;
provided, however, that the retiring Agent shall continue to perform any and all
necessary bookkeeping and recordkeeping activities until a successor



86









 




agent has been appointed (and
shall be compensated by Company for performing any such duties as agreed in writing by such Agent
and Company). 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 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. 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 in writing 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 in writing;
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 or other disposition,
Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any
such sale or other disposition 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 or other disposition.




          (ii) Notwithstanding the provisions of this Agreement or the Collateral Documents,
Collateral Agent shall not have any obligation to exercise rights or remedies against



87









 






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. By
accepting the benefits of the Collateral, such Lender Counterparty shall be deemed to have
appointed Collateral Agent as its agent and agrees to be bound by the Credit Documents as a
Secured Party.



     9.9. Withholding Taxes . To the extent required by any applicable law, Administrative Agent may withhold from any
payment to any Lender an amount equivalent to any applicable withholding tax. If the Internal
Revenue Service or any other Governmental Authority asserts a claim that Administrative Agent did
not properly withhold tax from amounts paid to or for the account of any Lender because the
appropriate form was not delivered or was not properly executed or because such Lender failed to
notify Administrative Agent of a change in circumstance which rendered the exemption from, or
reduction of, withholding tax ineffective or for any other reason, such Lender shall indemnify
Administrative Agent fully for all amounts paid, directly or indirectly, by Administrative Agent as
tax or otherwise, including any penalties or interest and together with all expenses (including
legal expenses, allocated internal costs and out-of-pocket expenses) incurred.



     9.10. Credit Agreement . Notwithstanding anything to the contrary contained in this Agreement and the other Credit
Documents, in the event of any conflict between the terms of this Agreement and the terms of any
other Credit Document with respect to the rights, duties, powers and responsibilities of the
Agents, the terms of this Agreement shall govern and control.



SECTION 10. MISCELLANEOUS




     10.1. Notices . Any notice or other communication herein required or permitted to be given to a Credit
Party, Collateral Agent, or Administrative Agent, 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



88









 





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 its benefit and for the benefit of the other Secured Parties 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 the Lenders 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; (g) all fees as agreed upon in writing between the
Company and the Agents, including, without limitation, the fee schedule executed as of the date
hereof; and (h) after the occurrence of a Default or an Event of Default, all actual costs and
out-of-pocket expenses, including reasonable attorneys’ fees, out-of-pocket expenses and
disbursements (including allocated costs of internal counsel or default officers or both) and costs
of settlement, incurred by any Agent or Lender 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, lease or license 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 attorneys’ fees and
costs under this clause (h) shall be limited to one counsel for the Agents, collectively, and one
counsel for the Lenders, collectively.



     10.3. Indemnity .



          (a) In addition to the payment of fees and 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 and
each Lender and the officers, partners, directors, trustees, attorneys, advisors, employees,
agents, investment advisors, sub-agents and Affiliates of each 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, in each





89









 








case, as determined by a final judgment of
a court of competent jurisdiction 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 or any of its Subsidiaries (provided that notwithstanding the
foregoing provisions of this clause (ii), the Administrative Agent and the Collateral Agent, acting
in such capacities, 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 each
Credit Party 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 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, or
with any other Credit Document, irrespective of whether or not such Lender shall have made any
demand hereunder.



     10.5. Amendments and Waivers .



          (a) Requisite Lenders’ Consent. Subject to the additional requirements of 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:






90









 









          (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) [Reserved];




          (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;




          (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; or




          (xi) amend Section 10.6 in a manner that would further restrict assignments;



          (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; or (ii) amend,
modify or waive this Agreement or the Pledge and Security Agreement so as to alter the ratable
treatment of Obligations arising under the Credit Documents, in each case in a manner adverse to
any Lender Counterparty with Obligations then outstanding without the written consent of any such
Lender Counterparty;




          (d) Execution of Amendments, etc. Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender, 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 .



91









 





          (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. 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. 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 and Lenders 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.




          (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” 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” 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 $1,000,000 (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 a processing and recordation
fee of $3,500 and 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





92









 







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 and processing and recording fee have
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 a processing and recordation fee of $3,500 (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 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, 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); and (iii) 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 outstanding Loans of the assignee and/or
the assigning Lender.




93









 








          (h) Participations. Each Lender shall have the right at any time to sell one or more
participations to any Person 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 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 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 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 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].



94









 





     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 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.



     10.10. No Waiver; Remedies Cumulative . No failure or delay on the part of any Agent, any Lender 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 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 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 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



95









 




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.



     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



96









 




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 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 shall hold all non-public information regarding Company and its
Subsidiaries and their businesses identified as such by Company and obtained by such Agent or
Lender pursuant to the requirements hereof in accordance with such Agent’s or 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, (iv) disclosures in
connection with the exercise of remedies hereunder or under any other Credit Document and (v)
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 Agent or 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



97









 




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 and Company to conform
strictly to any applicable usury laws. Accordingly, if any Lender 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
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 and Agent (for itself and not on behalf of any Lender) hereby notifies Credit
Parties that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and
record information that identifies Credit Parties, which information includes the name and address
of Credit Parties 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.



     10.24. No Fiduciary Duty . Each Agent, each Lender and their Affiliates (collectively, solely for purposes of this
paragraph, the “Lenders”), may have economic interests that conflict with those of Company.
Company agrees that nothing in the Credit Documents or otherwise will be deemed to create an
advisory, fiduciary or agency relationship or fiduciary or other implied duty between the Lenders
and Company, its stockholders or its affiliates. The Credit Parties acknowledge and agree that (i)
the transactions contemplated by the Credit Documents are arm’s-length commercial transactions
between the Lenders, on the one hand, and Company, on the other, (ii) in connection therewith and
with the process leading to such transaction each of the Lenders is acting solely as a principal
and not the agent or fiduciary of Company, its management, stockholders, creditors or any other
person, (iii) no Lender has assumed an advisory or fiduciary responsibility in favor of Company
with respect to the transactions contemplated hereby or the process leading thereto (irrespective
of whether any Lender or any of its



98









 




affiliates has advised or is currently advising Company on
other matters) or any other obligation to Company except the obligations expressly set forth in the
Credit Documents and (iv) Company has consulted its own legal and financial advisors to the extent
it deemed appropriate. Company further acknowledges and agrees that it is responsible for making
its own independent judgment with respect to such transactions and the process leading thereto.
Company agrees that it will not claim that any Lender has rendered advisory services of any nature
or respect, or owes a fiduciary or similar duty to Company, in connection with such transaction or
the process leading thereto.




[Remainder of page intentionally left blank]




 









 





     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:	 	 	 	 






APPENDIX A-1-1




 









 





	 	 	 	 	 	 	 
	 	 	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:	 	 	 	 






APPENDIX A-1-1



 









 





	 	 	 	 	 	 	 
	 	 	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:	 	 	 	 






APPENDIX A-1-1




 









 






	 	 	 	 	 
	 	ADMINISTRATIVE AGENT AND COLLATERAL AGENT:



WILMINGTON TRUST COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



APPENDIX A-1-1





 









 





	 	 	 	 	 
	 	[INSERT LENDER LEGAL NAMES],
as Lender
 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



APPENDIX A-1-1





 









 





APPENDIX A

TO SECOND LIEN CREDIT AND GUARANTY AGREEMENT




Commitments




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Lender	 	Commitment*	 	 	Funding Amount	 	 	Pro Rata Share	 
	Pacificor, LLC
	 	$	50,000,000	 	 	$	40,000,000	 	 	 	59.70	%
	DuPont Capital
Management, on behalf
of the DuPont Pension
Trust
	 	$	18,750,000	 	 	$	15,000,000	 	 	 	22.39	%
	Newstart Factors, Inc.
	 	$	10,000,000	 	 	$	8,000,000	 	 	 	11.94	%
	Frontier Ridge
Investments LLC
	 	$	2,500,000	 	 	$	2,000,000	 	 	 	2.99	%
	Wilfrid Aubrey
International Limited
	 	$	1,625,000	 	 	$	1,300,000	 	 	 	1.94	%
	Wilfrid Aubrey Growth
Fund, L.P.
	 	$	875,000	 	 	$	700,000	 	 	 	1.05	%
	 
	 	 	 	 	 	 	 	 	 
	Total
	 	$	83,750,000	 	 	$	67,000,000	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 








 




			
	*	 	Principal Amount





APPENDIX A-1-1




 









 





APPENDIX B

TO SECOND LIEN CREDIT AND GUARANTY AGREEMENT




Notice Addresses




DURA OPERATING COMPANY



Dura Operating Corp.

2791 Research Drive

Rochester Hills, MI 48309




B-1









 








WILMINGTON TRUST COMPANY




Administrative Agent’s and Collateral Agent’s Principal Office:




Wilmington Trust Company

Rodney Square North

1100 N. Market Street

Wilmington, Delaware 19890

Attn: James Hanley

Facsimile: (302) 636-4145

Telephone: (302) 636-6453


with a copy to:


Nixon Peabody LLP

437 Madison Avenue

New York, New York 10022

Attn: Bart Pisella

Facsimile: (866) 947-2203




B-2









 





PACIFICOR FUND, LLC




Pacificor, LLC

740 State Street, Suite 202

Santa Barbara, CA 93101

Facsimile: (805) 435-1642


With a copy to:


Latham & Watkins LLP

885 Third Avenue

New York, New York 10022-4834

Attn: Mitchell A. Seider

Facsimile: (212) 751-4864

Telephone: (212) 906-1200




B-3









 





DUPONT PENSION TRUST




Wendy S Wyatt

DuPont Capital Management

Delaware Corporate Center

One Righters Parkway, Suite 3200

Wilmington, DE 19803

Telephone: (302) 477-6084

Facsimile: (302) 477-6384




FRONTIER RIDGE GLOBAL FUND LP




Frontier Ridge Capital LP

152 West 57th Stret

New York, NY 10019

Attn: Michael Choo

Telephone: (212) 492-8000

Facsimile: (212) 492-8001




NEWSTART FACTORS, INC.


Bennett Management Corporation

2 Stamford Plaza

Stamford, CT 06901

Attn: John V. Koerber

Telephone: (203) 353-3101

Facsimile: (203) 353-3113


WILFRID AUBREY INTERNATIONAL LIMITED

WILFRID AUBREY GROWTH FUND, L.P.


Wilfrid Aubrey LLC

Nicholas W. Walsh CFA

100 William Street Suite #1850

New York, NY 10038

Attn: Nicholas W. Walsh CFA

Telephone: (212) 675-4906





B-4