Exhibit 10.2


 




 





 


$25,000,000 Revolving
Loan

$45,000,000 Term Loan

€14,000,000 Euro Term Loan 

€7,000,000 Euro Revolving Loan


 




CREDIT AGREEMENT


 


dated as of


 


November 16, 2007


 


among


 


DYNAMIC
MATERIALS CORPORATION,

DYNAMIC MATERIALS LUXEMBOURG 2 S. Â R.L.,


 


The Guarantors Party
Hereto,


 


The Lenders Party Hereto,


 


JPMORGAN CHASE BANK, N.A.

as Administrative Agent 

for the Revolving Credit Lenders and the Term Lenders


 


J.P.MORGAN EUROPE
LIMITED,

as Administrative Agent for the Euro Revolving Credit Lenders

and the Euro Term Lenders


 


and


 


JPMORGAN SECURITIES INC.,

as Sole Bookrunner and Lead Arranger


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Defined Terms

  	
  1

  
	
  Section 1.02

  	
  Classification of Loans and Borrowings

  	
  26

  
	
  Section 1.03

  	
  Terms Generally

  	
  26

  
	
  Section 1.04

  	
  Accounting Terms; GAAP

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE II The Credits

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Commitments

  	
  27

  
	
  Section 2.02

  	
  Loans and Borrowings

  	
  27

  
	
  Section 2.03

  	
  Requests for Borrowings

  	
  28

  
	
  Section 2.04

  	
  Swingline Loans

  	
  29

  
	
  Section 2.05

  	
  Letters of Credit; Existing Letters of Credit

  	
  32

  
	
  Section 2.06

  	
  Euro Letters of Credit

  	
  36

  
	
  Section 2.07

  	
  Funding of Borrowings

  	
  40

  
	
  Section 2.08

  	
  Interest Elections

  	
  41

  
	
  Section 2.09

  	
  Termination and Reduction of Commitments

  	
  43

  
	
  Section 2.10

  	
  Repayment of Loans; Evidence of Debt

  	
  43

  
	
  Section 2.11

  	
  Prepayment of Loans

  	
  45

  
	
  Section 2.12

  	
  Fees

  	
  48

  
	
  Section 2.13

  	
  Interest

  	
  50

  
	
  Section 2.14

  	
  Alternate Rate of Interest

  	
  50

  
	
  Section 2.15

  	
  Increased Costs

  	
  51

  
	
  Section 2.16

  	
  Break Funding Payments

  	
  53

  
	
  Section 2.17

  	
  Taxes

  	
  53

  
	
  Section 2.18

  	
  Payments Generally; Pro Rata Treatment; Sharing of Set-offs; Sharing
  of Collateral Proceeds and Payments After Default

  	
  55

  
	
  Section 2.19

  	
  Mitigation Obligations; Replacement of Lenders

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE III Representations and
  Warranties

  	
  59

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Organization

  	
  59

  
	
  Section 3.02

  	
  Authority Relative to this Agreement

  	
  60

  
	
  Section 3.03

  	
  No Violation

  	
  60

  
	
  Section 3.04

  	
  Financial Statements

  	
  61

  
	
  Section 3.05

  	
  No Undisclosed Liabilities

  	
  61

  
	
  Section 3.06

  	
  Litigation

  	
  61

  
	
  Section 3.07

  	
  Compliance with Law

  	
  61

  
	
  Section 3.08

  	
  Material Contracts

  	
  62

  
	
  Section 3.09

  	
  Properties

  	
  62

  
	
  Section 3.10

  	
  Intellectual Property

  	
  62

  
	
  Section 3.11

  	
  Taxes

  	
  63

  
	
  Section 3.12

  	
  Environmental Compliance

  	
  63

  



 


i

















 


	
  Section 3.13

  	
  Labor Matters

  	
  64

  
	
  Section 3.14

  	
  Investment and Holding Company Status

  	
  64

  
	
  Section 3.15

  	
  Insurance

  	
  64

  
	
  Section 3.16

  	
  Solvency

  	
  64

  
	
  Section 3.17

  	
  ERISA

  	
  64

  
	
  Section 3.18

  	
  Disclosure

  	
  64

  
	
  Section 3.19

  	
  Margin Stock

  	
  65

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV Conditions

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Effective Date

  	
  65

  
	
  Section 4.02

  	
  Each Credit Event

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE V Affirmative Covenants

  	
  69

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Financial Statements and Other Information

  	
  69

  
	
  Section 5.02

  	
  Notices of Material Events

  	
  70

  
	
  Section 5.03

  	
  Existence; Conduct of Business

  	
  71

  
	
  Section 5.04

  	
  Payment of Obligations

  	
  71

  
	
  Section 5.05

  	
  Maintenance of Properties; Insurance

  	
  71

  
	
  Section 5.06

  	
  Books and Records; Inspection Rights

  	
  71

  
	
  Section 5.07

  	
  Compliance with Laws

  	
  71

  
	
  Section 5.08

  	
  Use of Proceeds and Letters of Credit

  	
  71

  
	
  Section 5.09

  	
  Additional Guarantees and Security Documents

  	
  72

  
	
  Section 5.10

  	
  Compliance with ERISA

  	
  73

  
	
  Section 5.11

  	
  Compliance with Environmental Laws; Environmental Reports

  	
  73

  
	
  Section 5.12

  	
  Maintain Business

  	
  74

  
	
  Section 5.13

  	
  Further Assurances and New Intellectual Property

  	
  74

  
	
  Section 5.14

  	
  Delivery of Title Policies

  	
  74

  
	
  Section 5.15

  	
  Post Closing Joinder

  	
  74

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI Negative Covenants

  	
  74

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Indebtedness

  	
  75

  
	
  Section 6.02

  	
  Liens

  	
  76

  
	
  Section 6.03

  	
  Fundamental Changes

  	
  78

  
	
  Section 6.04

  	
  Asset Sales

  	
  78

  
	
  Section 6.05

  	
  Investments

  	
  79

  
	
  Section 6.06

  	
  Swap Agreements

  	
  80

  
	
  Section 6.07

  	
  Restricted Payments

  	
  81

  
	
  Section 6.08

  	
  Transactions with Affiliates

  	
  81

  
	
  Section 6.09

  	
  Restrictive Agreements

  	
  82

  
	
  Section 6.10

  	
  Business Acquisitions

  	
  82

  
	
  Section 6.11

  	
  Constituent Documents

  	
  83

  
	
  Section 6.12

  	
  Sales and Leasebacks

  	
  83

  
	
  Section 6.13

  	
  Capital Expenditures

  	
  84

  
	
  Section 6.14

  	
  Changes in Fiscal Year

  	
  84

  
	
  Section 6.15

  	
  Fixed Charge Coverage Ratio

  	
  84

  



 


ii

















 


	
  Section 6.16

  	
  Leverage Ratio

  	
  84

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII Events of Default and
  Remedies

  	
  84

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Events of Default

  	
  84

  
	
  Section 7.02

  	
  Cash Collateral

  	
  87

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII The Administrative
  Agent

  	
  87

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX Guarantee

  	
  89

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  The Guarantee

  	
  89

  
	
  Section 9.02

  	
  Guarantee Unconditional

  	
  91

  
	
  Section 9.03

  	
  Discharge Only upon Payment in Full; Reinstatement In Certain
  Circumstances

  	
  92

  
	
  Section 9.04

  	
  Waiver by Each Guarantor

  	
  92

  
	
  Section 9.05

  	
  Subrogation

  	
  93

  
	
  Section 9.06

  	
  Stay of Acceleration

  	
  93

  
	
  Section 9.07

  	
  Limit of Liability

  	
  93

  
	
  Section 9.08

  	
  Release upon Sale

  	
  93

  
	
  Section 9.09

  	
  Benefit to Guarantor

  	
  94

  
	
  Section 9.10

  	
  Jurisdiction Specific Provisions

  	
  94

  
	
   

  	
   

  	
   

  
	
  ARTICLE X Miscellaneous

  	
  94

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Notices

  	
  94

  
	
  Section 10.02

  	
  Waivers; Amendments

  	
  97

  
	
  Section 10.03

  	
  Expenses; Indemnity; Damage Waiver

  	
  98

  
	
  Section 10.04

  	
  Successors and Assigns

  	
  101

  
	
  Section 10.05

  	
  Survival

  	
  104

  
	
  Section 10.06

  	
  Counterparts; Integration; Effectiveness

  	
  105

  
	
  Section 10.07

  	
  Severability

  	
  105

  
	
  Section 10.08

  	
  Right of Setoff

  	
  105

  
	
  Section 10.09

  	
  Governing Law; Jurisdiction; Consent to Service of Process

  	
  106

  
	
  Section 10.10

  	
  WAIVER OF JURY TRIAL

  	
  107

  
	
  Section 10.11

  	
  Headings

  	
  107

  
	
  Section 10.12

  	
  Confidentiality

  	
  107

  
	
  Section 10.13

  	
  Interest Rate Limitation

  	
  108

  
	
  Section 10.14

  	
  USA Patriot Act

  	
  109

  
	
  Section 10.15

  	
  Joint and Several Liability; Limitation

  	
  109

  



 


iii

















 


SCHEDULES:


 


Schedule 1.01 –Existing
Letters of Credit


Schedule 2.01 –
Commitments


Schedule 3.01 –
Organization


Schedule 3.03 –
No Violations


Schedule 3.05 –
No Undisclosed Liabilities


Schedule 3.06 –
Litigation


Schedule 3.07 –
Compliance with Law


Schedule 3.08 –
Material Contracts


Schedule 3.09 –
Properties


Schedule 3.10 –
Intellectual Property


Schedule 3.12 –
Environmental Compliance


Schedule 3.15 –
Insurance


Schedule
4.01(l) – Payoffs to Other Lenders


Schedule
4.01(r) – Environmental Reports


Schedule 6.01 –
Existing Indebtedness


Schedule 6.02 –
Existing Liens


Schedule 6.05 –
Permitted Investments


Schedule
6.08(j) – Permitted Affiliate Agreements


Schedule 6.09 –
Restrictive Agreements


Schedule 9.10 –
Jurisdiction Specific Provisions


 


EXHIBITS:


 


	
  Exhibit 1.1A

  	
  —

  	
  Form of Assignment and Assumption (Section 1.01)

  
	
  Exhibit 1.1B(i)

  	
  —

  	
  Form of Joinder Agreement (Domestic) (Section 1.01)

  
	
  Exhibit 1.1B(ii)

  	
  —

  	
  Form of Joinder Agreement (Foreign (Section 1.01)

  
	
  Exhibit 1.1C(i)

  	
  —

  	
  Form of Security Agreement (US Borrower) (Section 1.01)

  
	
  Exhibit 1.1C(ii)

  	
  —

  	
  Form of Security Agreement (Euro Borrower) (Section 1.01)

  
	
  Exhibit 1.1D

  	
  —

  	
  Form of Security Agreements (European (Section 1.01)

  
	
  Exhibit 1.1E

  	
  —

  	
  Mandatory Cost Calculation

  
	
  Exhibit 2.06

  	
  —

  	
  Form of Euro Letter of Credit

  
				



 


iv

















 


CREDIT AGREEMENT dated as of November 16, 2007
(this “Agreement”), among Dynamic Materials Corporation, a Delaware
corporation (the “US Borrower”, or sometimes referred to as the “Parent”),
Dynamic
Materials Luxembourg 2 S.à r.l.,
a private limited liability company (société
à responsabilité limitée), incorporated and existing under
the laws of the Grand-Duchy of Luxembourg, with registered office at 41,
boulevard Prince Henri, L-1724 Luxembourg, Grand-Duchy of Luxembourg, in the
process of registration with the Luxembourg trade and companies register (Registre de Commerce et des Sociétés Luxembourg)
and a Subsidiary of the Parent (the “Euro Borrower,” and, together with
the US Borrower, the “Borrowers”), the Guarantors party hereto, the
Lenders party hereto, JPMorgan Chase Bank, N.A., as Administrative Agent for
the Revolving Credit Lenders and the Term Lenders, J.P. Morgan Europe
Limited, as Administrative Agent for the Euro Revolving Credit Lenders and the
Euro Term Lenders and JPMorgan Securities Inc., as Sole Bookrunner and Lead
Arranger (the “Arranger”).


 


PRELIMINARY STATEMENT:


 


The US Borrower has requested that the Lenders provide
the Borrowers with a credit facility pursuant to which the Lenders will commit
to make revolving credit loans up to $25,000,000, a term loan of $45,000,000,
€14,000,000 Euro term loan and a €7,000,000 Euro revolving credit loan.


 


NOW, THEREFORE, in consideration of the foregoing and
the mutual covenants set forth herein, the Borrowers, Guarantors, the
Administrative Agent and the Lenders agree as follows:


 


ARTICLE I

Definitions


 


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


 


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


 


“Acquisition” means the indirect acquisition by
the US Borrower of the Target pursuant to the Acquisition Agreement.


 


“Acquisition Agreement” means the Purchase,
Sale and Assignment Agreement to be dated on or about November         ,
2007, among the sellers named therein, Blitz F07-dreihundert-vierzehn GmbH (in
the future: DYNAenergetics Holding GmbH) (“DYNAenergetics Holding GmbH”), as purchaser, and the US Borrower, as purchaser
guarantor, which agreement is in form and substance reasonably acceptable to
the Administrative Agent.


 

















 


“Adjusted LIBO Rate” means, with respect to any
Eurodollar Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the LIBO
Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.


 


“Administrative Agent” means JPMorgan Chase
Bank, N.A. in its capacity as administrative agent for the Revolving Credit
Lenders and the Term Lenders hereunder.


 


“Administrative Agents” means the
Administrative Agent and the Euro Administrative Agent.


 


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


 


“Affiliate” means, with respect to a specified
Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the Person specified.


 


“Aggregate Excess Cash Flow Amount” has the
meaning set forth in Section 2.11(b).


 


“Agreement” has the meaning set forth in the
introductory paragraph hereof.


 


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


 


“Applicable Margin” means, on any day, the
applicable per annum percentage set forth at the appropriate intersection in
the table shown below, based on the Leverage Ratio for the most recently ended
trailing four-quarter period with respect to which the US Borrower is required
to have delivered the financial statements pursuant to Section 5.01(a)
or Section 5.01(b), as applicable (said calculation to be made by the
Administrative Agent as soon as practicable after receipt by the Administrative
Agent of all required financial statements for the applicable period):


 


	
  Leverage Ratio

  	
   

  	
  Eurocurrency/

  Eurodollar Margin

  	
   

  	
  ABR Margin

  	
   

  
	
         X
  > 2.00

  	
   

  	
  2.00

  	
  %

  	
  0.50

  	
  %

  
	
  2.00
  > X > 1.50

  	
   

  	
  1.75

  	
  %

  	
  0.25

  	
  %

  
	
  1.50
  > X > 1.00

  	
   

  	
  1.50

  	
  %

  	
  0.00

  	
  %

  
	
  1.00
  > X

  	
   

  	
  1.25

  	
  %

  	
  0.0

  	
  %

  



 


Each change in the Applicable Margin shall take effect
on each date on which such financial statements are required to be delivered
pursuant to Section 5.01(a) or Section 5.01(b), as 


 


2

















 


applicable, commencing with the date on which such
financials statements are required to be delivered for the trailing
four-quarter period ending September 30, 2007. Notwithstanding the foregoing,
for the period from the Closing Date through receipt of financial statements
pursuant to Section 5.01(b) for the fiscal quarter ended March 31, 2008,
the Eurocurrency/Eurodollar Margin will be 1.75 and the ABR Margin will be 0.25.
In the event that any financial statement delivered pursuant to Section
5.01(a) or Section 5.01(b), as applicable, is shown to be inaccurate
when delivered (regardless of whether this Agreement or the Commitments are in
effect when such inaccuracy is discovered), and such inaccuracy, if corrected,
would have led to the application of a higher Applicable Margin for any period
(an “Applicable Period”) than the Applicable Margin applied for such
Applicable Period, and only in such case, then the US Borrower shall
immediately (i) deliver to the Administrative Agent corrected financial
statements for such Applicable Period, (ii) determine the Applicable Margin for
such Applicable Period based upon the corrected financial statements, and (iii)
immediately pay to the Administrative Agent the accrued additional interest
owing as a result of such increased Applicable Margin for such Applicable
Period, which payment shall be promptly applied by the Administrative Agent in
accordance with Section 2.18. This provision is in addition to rights of
the Administrative Agents and Lenders with respect to Section 2.13(f)
and their other respective rights under this Agreement.


 


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


 


“Approved Fund” has the meaning assigned to
such term in Section 10.04(b).


 


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


 


 “Asset Sale”
means a Disposition by any Borrower or any of its respective Subsidiaries to
any Person of (a) substantially all of the assets, or any material division or
line of business, of such Borrower or any such Subsidiary, or (b) any other
assets of such Borrower or any such Subsidiary, including, without limitation,
any accounts receivable, but excluding in each case of clause (a) and (b) above
the Dispositions permitted in Section 6.04.


 


“Assignment and Assumption” means an assignment
and assumption entered into by a Lender and an assignee (with the consent of
any party whose consent is required by 


 


3

















 


Section 10.04), and accepted by the
Administrative Agents, as applicable, in the form of Exhibit 1.1A or any
other form approved by the Administrative Agent and the US Borrower.


 


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


 


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


 


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


 


“Borrowers” has the meaning given in the
preamble.


 


“Borrowing” means (a) Revolving Loans of the
same Type, made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect, (b) Term
Loans of the same Type, made, converted or continued on the same date and, in
the case of Eurodollar Loans, as to which a single Interest Period is in
effect, (c) Euro Revolving Loans of the same Type, made, converted or continued
on the same date and as to which a single Interest Period is in effect
(d) Euro Term Loans, (e) a Swingline Loan or (f) a Euro Swingline Loan.


 


“Borrowing Request” means a request by the US
Borrower or the Euro Borrower, as applicable, for a Borrowing in accordance
with Section 2.03.


 


“Business Acquisition” means (a) an Investment
by any Borrower or any other Person pursuant to which such Person shall become
a Subsidiary of such Borrower or shall be merged into or consolidated with such
Borrower or any of its Subsidiaries or (b) an acquisition by any Borrower or
any of its respective Subsidiaries of the property and assets of any Person
that constitute substantially all of the assets of such Person or any division
or other business unit of such Person.


 


“Business Day” means any day that is not a
Saturday, Sunday or other day on which commercial banks in New York City, New
York, London, England, Luxembourg and Denver, Colorado are authorized or
required by Law to remain closed; provided that, when used in connection
with a Eurodollar Loan, the term “Business Day” shall also exclude any
day on which banks are not open for dealings in dollar deposits in the London
interbank market (and, with respect to any Borrowing, if the Loans which are
the subject of such Borrowing are denominated in Euros, shall exclude any day
that is not a TARGET Day).


 


“Capital Expenditures” means, for any period
and a specified Person, expenditures in respect of fixed or capital assets,
including the capital portion of the lease payments made in respect of Capital
Lease Obligations, in each case which are required to be capitalized on a
balance sheet of such Person prepared in accordance with GAAP, but excluding
expenditures for the repair or replacement of any fixed or capital assets which
were destroyed or damaged, in whole or in part, to the extent financed by the
proceeds of any insurance policy or expenditures for any fixed or capital
assets to the extent financed by the proceeds from the 


 


4

















 


issuance of any Equity Interests in the US Borrower
or, proportionately, to the extent financed by the proceeds of any issuance of
Equity Interests in any Subsidiary of the US Borrower that is not a Wholly
Owned Subsidiary to any Person that is not the US Borrower or any of its
Subsidiaries.


 


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


 


“Casualty Event” means, with respect to any
property of any Borrower or any of its respective Subsidiaries, loss of title
with respect to such property or any loss of or damage to or destruction of, or
any condemnation or other taking of, such property, in each case for which such
Borrower or such Subsidiary receives insurance proceeds or proceeds of a
condemnation award or other compensation, in each case to the extent that such
proceeds or other compensation exceeds $1,000,000.


 


“Change in Control” means (a) any Person or
group (within the meaning of Rule 13d-5 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934 as in effect on the date
hereof) shall become the beneficial owner (as defined in Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934 as
in effect on the date hereof) of issued and outstanding Equity Interests of the
Parent representing more than 35% of the aggregate voting power in elections
for directors of the Parent on a fully diluted basis; or (b) a majority of
the members of the board of directors of the Parent shall cease to be either
(i) Persons who were members of the board of directors on the Closing Date or
(ii) Persons who became members of such board of directors after the
Closing Date and whose election or nomination was approved by a vote or consent
of the majority of the members of the board of directors that are either described
in clause (i) above or who were elected under this clause (ii).


 


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


 


“Class”, when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are Revolving Loans, Term Loans, Swingline Loans, Euro Revolving Loans or Euro
Term Loans and, when used in reference to any Commitment, refers to whether
such Commitment is a Revolving Loan Commitment, a Term Loan Commitment, a Euro
Revolving Loan Commitment or a Euro Term Commitment.


 


“Closing Date” means the date of the initial
Loan hereunder.


 


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


 


5

















 


“Collateral” means all of the property
described in the Security Agreements serving as security for the Loans.


 


 “Commitment”
means any Term Loan Commitment, Revolving Loan Commitment, Euro Revolving Loan
Commitment or Euro Term Loan Commitment, as the context may require, and “Commitments”
means any or all of the foregoing, as the context may require.


 


“Commitment Fee Rate” means, on any day, the
applicable per annum percentage set forth at the appropriate intersection in
the table shown below, based on the Leverage Ratio for the most recently ended
trailing four-quarter period with respect to which the US Borrower is required
to have delivered the financial statements pursuant to Section 5.01(a)
or Section 5.01(b), as applicable (said calculation to be made by the
Administrative Agent as soon as practicable after receipt by the Administrative
Agent of all required financial statements for the applicable period):


 


	
  Leverage Ratio

  	
   

  	
  Commitment Fee Rate

  	
   

  
	
           X>2.00

  	
   

  	
  0.375

  	
  %

  
	
  2.00≥X>1.50

  	
   

  	
  0.350

  	
  %

  
	
  1.50≥X>1.00

  	
   

  	
  0.300

  	
  %

  
	
  1.00≥X

  	
   

  	
  0.250

  	
  %

  



 


Each change in the
Commitment Fee Rate shall take effect on each date on which such financial
statements are required to be delivered pursuant to Section 5.01(a) or Section
5.01(b), as applicable, commencing with the date on which such financials
statements are required to be delivered for the four-quarter period ending
September 30, 2007. Notwithstanding the foregoing, for the period from the
Closing Date through receipt of financial statements pursuant to Section
5.01(a) for the fiscal quarter ended March 31, 2008, the Commitment Fee
Rate will be 0.35%. In the event
any financial statement delivered pursuant to Section 5.01(a) or Section
5.01(b), as applicable, is shown to be inaccurate when delivered
(regardless of whether this Agreement or the Commitments are in effect when
such inaccuracy is discovered), and such inaccuracy, if corrected, would have
led to a higher Commitment Fee Percentage for any period (as “Applicable
Commitment Fee Period”) than the Commitment Fee Percentage applied for such
Applicable Commitment Fee Period, and only in such case, then the US Borrower
shall immediately (i) deliver to the Administrative Agent corrected financial
statements for such Applicable Commitment Fee Period, (ii) determine the
Commitment Fee Percentage for such Applicable Commitment Fee Period based on
the corrected financial statements, and (iii) immediately pay to the
Administrative Agent the additional accrued commitment fees owing as a result
of such increased Commitment Fee Rate for such Applicable Commitment Fee
Period, which payment shall be promptly applied in accordance with Section
2.11. This provision is in addition to the rights of the Administrative
Agents and Lenders with respect to Section 2.12(f) and their other
respective rights under this Agreement.


 


“Consolidated EBITDA” means, for any Person,
for any period, Net Income of such Person and its consolidated Subsidiaries
determined on a consolidated basis in accordance with GAAP for such period, plus,
to the extent deducted in the determination of such Net Income and without
duplication, (a) provisions for income taxes, (b) Interest Expense, (c)
depreciation 


 


6

















 


and amortization expense, (d) extraordinary,
non-recurring charges and (e) other non-cash charges; and minus, to the
extent included in the determination of such Net Income and without
duplication, (i) interest income, (ii) extraordinary, non-recurring income,
revenue or gains and (iii) other non-cash income. Notwithstanding anything
herein to the contrary, for purposes of determining Consolidated EBITDA of the
Parent and its Subsidiaries for all periods until and including the quarter
ending September 30, 2008, (i) such Consolidated EBITDA shall be determined on
a combined basis by combining, without duplication, (A) the Consolidated EBITDA
of the Parent and its Subsidiaries (other than DYNAenergetics Beteiligungs
GmbH, the Target and their respective Subsidiaries) determined on a consolidated
basis in accordance with GAAP with (B) the Consolidated EBITDA of each of
DYNAenergetics Beteiligungs GmbH, the Target and their respective Subsidiaries
determined on an unconsolidated basis in accordance with the generally accepted
accounting principles in its respective jurisdiction of incorporation or German
GAAP, as applicable, that has been applied to the preparation of its respective
financial statements for each of the relevant periods that is a part of the
period of calculation and that is prior to the quarter ending March 31, 2008.


 


“Consolidated Funded Indebtedness” of any
Person, means, without duplication, Indebtedness of such Person and its
consolidated Subsidiaries, determined on a consolidated basis in accordance
with GAAP, evidenced by a note, bond, debenture or similar instrument with
regularly scheduled interest payments and a maturity date.


 


“Consolidated Pro Forma EBITDA” means, for any
Person, for any period, without duplication, Consolidated EBITDA of such
Person, (i) plus the Consolidated EBITDA for such period of any Subsidiary of
Person acquired during such period, as if acquired on the first day of such
period and (ii) minus the Consolidated EBITDA for such period of any Subsidiary
of such Person disposed of during such period, as if disposed of on the first
day of such period, determined in a manner reasonably satisfactory to
Administrative Agent.


 


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


 


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


 


“Default Rate” means a rate per annum equal to
(a) with respect to Eurodollar Loans, the rate otherwise applicable to
Eurodollar Loans plus 2%, (b) with respect to Eurocurrency Loans, the rate
otherwise applicable to Eurocurrency Loans plus 2%, (c) with respect to Euro
Swingline Loans, the rate otherwise applicable to Euro Swingline Loans plus 2%
and (d) with respect to all other amounts, the rate otherwise applicable to ABR
Loans plus 2%.


 


“Disposition” means sale, lease, conveyance or
other disposition.


 


“dollars” or “$” refers to lawful money
of the United States of America.


 


7

















 


“Domestic Subsidiary” means any Subsidiary of
the US Borrower (other than a Subsidiary of any Foreign Subsidiary) that is
organized under the Laws of the United States of America, any State thereof or
the District of Columbia.


 


“Earnings Available for Fixed Charges” means,
for any period of determination, an amount equal to (a) Consolidated EBITDA
plus (b) lease expenses minus (c) cash income taxes minus (d) Non-Financed
Capital Expenditures in each case for the Parent and its Subsidiaries,
determined on a consolidated basis as reported in the annual audited and the
quarterly unaudited financial statements of the Parent provided in accordance
with Section 5.01.


 


“Effective Date” means the date on which the
conditions specified in Section 4.01 are satisfied (or waived in
accordance with Section 10.02).


 


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


 


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


 


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


 


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


 


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


 


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


 


8

















 


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


 


“EURIBOR” means, in relation to any Loan in
Euro for any Interest Period, an interest rate per annum equal to the
applicable Screen Rate as of 11:00 am Brussels, Belgium time on the second
TARGET Days (excluding any TARGET Day that is not a London Business Day) prior
to the beginning of such Interest Period for the offering of deposits in Euro
for a period comparable to the Interest Period of the relevant Loan.


 


“Euro”, “Euros” and “€”
mean the single currency of the Participating Member States.


 


“Euro Administrative Agent” means J.P. Morgan
Europe Limited in London, England, an Affiliate of the Administrative Agent,
acting at the request of the Administrative Agent, in its capacity as
administrative agent for the Euro Term Lenders and the Euro Revolving Credit
Lenders hereunder.


 


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


 


“Euro Availability Period” means the period
from and including the Effective Date to but excluding the earlier of the
Revolving Credit Termination Date and the date of termination of the Euro
Revolving Loan Commitments.


 


“Euro Borrower” has the meaning given in the
preamble.


 


“Euro Guarantors” means each of the Euro
Borrower’s existing and subsequently acquired or organized Wholly Owned
Subsidiaries and each of the US Borrower’s existing and subsequently acquired
or organized Foreign Subsidiaries that are Wholly Owned Subsidiaries (other
than the Euro Borrower), which Subsidiaries guarantee the Obligations of the
Euro Borrower under the Loan Documents.


 


“Euro Indemnitee” has the meaning set forth in Section
10.03(b).


 


“Euro Issuing Lender” means J.P. Morgan
Europe Limited, in its capacity as the issuer of Euro Letters of Credit
hereunder, and its successors in such capacity as provided in Section
2.06(i). The Euro Issuing Lender may, in its discretion, arrange for one or
more Euro Letters of Credit to be issued by Affiliates of the Euro Issuing
Lender, in which case the term 


 


9

















 


“Euro Issuing Lender” shall include any Affiliate with
respect to Euro Letters of Credit issued by such Affiliate.


 


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


 


“Euro LC Exposure” means, at any time, the sum
of (a) the aggregate undrawn amount of all Euro Letters of Credit at such
time plus (b) the aggregate amount of all Euro LC Disbursements that
have not yet been reimbursed by the Euro Borrower or converted into a Euro
Revolving Loan or Euro Swingline Loan pursuant to Section 2.06(e) at
such time. The Euro LC Exposure of any Lender at any time shall be its
Euro Applicable Percentage of the total Euro LC Exposure at such time.


 


“Euro Letter of Credit” means any Letter of
Credit issued pursuant to Section 2.06 of this Agreement.


 


 “Euro
Revolving Credit Lender” means a Lender with a Euro Revolving Loan
Commitment or, if the Euro Revolving Loan Commitments have terminated or
expired, a Lender with Euro Revolving Credit Exposure.


 


“Euro Revolving Loan Commitment” means, with
respect to each Euro Revolving Credit Lender, the commitment of such lender to
make Euro Revolving Loans and to acquire participations in Euro Letters of
Credit and Euro Swingline Loans hereunder, expressed as an amount representing
the maximum aggregate amount of such Lender’s Euro Revolving Credit Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to Section
2.09 and (b) reduced or increased from time to time pursuant to assignments
by or to such Lender pursuant to Section 2.19 or Section 10.04. The
initial amount of each such Lender’s Euro Revolving Loan Commitment is set
forth on Schedule 2.01, or in the Assignment and Assumption pursuant to
which such lender shall have assumed its Euro Revolving Loan Commitment, as
applicable. The initial aggregate amount of the Lenders’ Euro Revolving Loan
Commitment is €7,000,000.


 


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


 


“Euro Revolving Loan” means a Loan made in
Euros pursuant to Section 2.01(d).


 


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


 


“Euro Swingline Lender” means J.P. Morgan
Europe Limited, in its capacity as lender of Euro Swingline Loans hereunder.


 


“Euro Swingline Loan” means a Loan made
pursuant to Section 2.04(b).


 


10

















 


“Euro Swingline Rate” means, in relation to a
Euro Swingline Loan, the percentage rate per annum which is the aggregate of:


 


(a)           the
arithmetic mean of the rates (rounded upwards to four decimal places) as
supplied to the Euro Administrative Agent at its request quoted by the
Reference Bank to leading banks in the European interbank market as of 11.00
a.m., London time on the date of Borrowing for that Euro Swingline Loan for the
offering of deposits in Euro for a period comparable to the Interest Period for
the relevant Euro Swingline Loan and for settlement on that day; and


 


(b)           1.75
per cent per annum; and


 


(c)           Mandatory
Cost (if any).


 


“Euro Term Lender” means a Lender with a Euro
Term Loan Commitment or an outstanding Euro Term Loan.


 


“Euro Term Loans” means the loans made by the
Euro Term Lenders to the Euro Borrower pursuant to this Agreement.


 


“Euro Term Loan Commitment” means, with respect
to each Lender, the commitment of such Lender to make a Euro Term Loan hereunder
in the amount set forth on Schedule 2.01, as such Commitment may be
reduced or increased pursuant to Section 2.19 or Section 10.04. The
initial aggregate amount of the Lenders’ Euro Term Loan Commitment is
€14,000,000.


 


“Euro Term Loan Maturity Date” means the fifth
anniversary of the Closing Date.


 


“Eurocurrency Borrowing” means a Borrowing
comprised of one or more Eurocurrency Loans.


 


“Eurocurrency Lender” means a Euro Term Lender,
or a Euro Revolving Credit Lender , a Euro Swingline Lender or a Euro Issuing
Lender.


 


“Eurocurrency Loan” means a Euro Term Loan or a
Euro Revolving Loan.


 


“Eurocurrency Rate” means EURIBOR.


 


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


 


“Event of Default” has the meaning assigned to
such term in Section 7.01.


 


“Excess Cash Flow” means, for any period, the
remainder of the following, all calculated for such period, in respect of the
Parent and its Subsidiaries on a consolidated basis in accordance with GAAP and
without duplication: (a)  Consolidated EBITDA, minus (b) (i) cash
Interest Expense, (ii) scheduled principal payments of Indebtedness,
(iii) voluntary prepayments 


 


11

















 


of Indebtedness to the extent not re-borrowed
(excluding voluntary prepayments of Revolving Loans or Swingline Loans whether
or not re-borrowed and excluding repayments of Indebtedness to the extent
repaid with proceeds of other Indebtedness), (iv) income taxes, (v) cash
payments of acquisitions which are not financed with proceeds of new equity or
which are financed with Indebtedness pursuant to Section 6.01(c) and, in each
case, which are not deducted in the calculation of Net Income or Consolidated
EBITDA, and (vi) Non-Financed Capital Expenditures for such period.


 


“Excluded Taxes” means, with respect to the
Administrative Agents, any Lender, the Issuing Lender, the Euro Issuing Lender,
or any other recipient of any payment to be made by or on account of any
obligation of any Borrower hereunder, (a) income, franchise or other similar
taxes imposed on (or measured by) its net income by the United States of
America, or by any other Governmental Authority by reason of a present or
former connection between such Borrower and the jurisdiction of the
Governmental Authority imposing the tax, or any political subdivision thereof
(other than any such connection arising solely from such Administrative Agents,
Lender, Issuing Lender, Euro Issuing Lender, or other recipient having
executed, delivered, performed its obligations or received a payment under, or
enforced this Agreement), (b) any branch profits taxes imposed by the United
States of America or any similar tax imposed by any other jurisdiction in which
such Borrower is located, and (c) in the case of any such Lender (other than an
assignee pursuant to a request by such Borrower under Section 2.19(b)),
any deduction or withholding in respect of Tax that is imposed on amounts
payable to such Lender at the time such Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such
Lender’s failure to comply with Section 2.17(e), except to the extent
that such Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from such Borrower with respect to such deduction or withholding in
respect of Tax pursuant to Section 2.17(a).


 


“Existing Letters of Credit” means those
letters of credit described on Schedule 1.01 attached hereto.


 


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


 


“Fee Letter” means the letter agreement, dated
September 7, 2007, among the US Borrower, the Administrative Agents and
the sole book runner and lead arranger.


 


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


 


“Fitch” means Fitch Ratings, Ltd.


 


12

















 


“Fixed Charge Coverage Ratio” means, for any
period, the ratio of (a) Earnings Available for Fixed Charges to (b) Fixed
Charges.


 


“Fixed Charges” means, for any period of
determination, without duplication, the sum of (a) cash Interest Expense
and (b) lease expense, (c) scheduled principal payments (excluding any
payments made pursuant to Section 2.10) hereunder, and (d) cash
dividends in each case, for the Parent and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.


 


“Foreign Lender” means any Lender that is not a
“US person” within the meaning of Section 7701(a)(30) of the Code.


 


“Foreign Subsidiary” means a Subsidiary of the
US Borrower that is not a “US person” within the meaning of Section 7701(a)(30)
of the Code.


 


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


 


“German GAAP” means generally accepted
accounting principles in the Federal Republic of Germany.


 


“Governmental Approval” means (i) any
authorization, consent, approval, license, waiver, or exemption, by or with;
(ii) any notice to; (iii) any declaration of or with; or (iv) any registration
by or with, or any other action or deemed action by or on behalf of, any
Governmental Authority.


 


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


 


“guarantee” of or by any Person (the “guarantor”)
means any obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness of any other Person
(the “primary obligor”) in any manner, whether directly or indirectly,
and including any obligation of the guarantor, direct or indirect, (a) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or lease
property, securities or services for the purpose of assuring the owner of such
Indebtedness of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or (d) as
an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness; provided, that the term guarantee
shall not include endorsements for collection or deposit in the ordinary course
of business. The amount of any guarantee of any guarantor shall be deemed to be
the lower of (i) an amount equal to the stated or determinable amount of
the primary obligation in respect of which such guarantee is made and
(ii) the maximum amount for which such guarantor may be liable pursuant to
the terms of the instrument embodying such guarantee, unless such primary 


 


13

















 


obligation and the maximum amount for which such
guarantor may be liable are not stated or determinable, in which case the
amount of such guarantee shall be such guarantor’s maximum reasonably
anticipated liability in respect thereof as determined by the US Borrower in
good faith.


 


“Guarantees” means the guarantees issued
pursuant to this Agreement as contained in Article IX.


 


“Guarantors” means the US Borrower, US
Guarantors and the Euro Guarantors.


 


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


 


“Indebtedness” of any Person means, without
duplication, (a) all obligations of such Person for borrowed money or with
respect to deposits or advances of any kind, (b) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid,
(d) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (e) all
obligations of such Person in respect of the deferred purchase price of
property or services (excluding current accounts payable incurred in the ordinary
course of business), (f) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property owned or acquired by such Person,
whether or not the Indebtedness secured thereby has been assumed, (g) all
guarantees by such Person of Indebtedness of others, (h) the principal
portion of all Capital Lease Obligations of such Person, (i) all obligations,
contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers’ acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person’s ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.


 


“Indemnified Taxes” means Taxes other than
Excluded Taxes.


 


“Indemnitee” means a Euro Indemnitee or a US
Indemnitee.


 


“Information Memorandum” means the Confidential
Information Memorandum dated September 2007  relating
to the Borrowers and the Transactions.


 


“Interest Election Request” means a request by
the US Borrower to convert or continue a Revolving Loan or a Term Loan or a
request by the Euro Borrower to continue a Eurocurrency Borrowing, in each case
in accordance with Section 2.08.


 


“Interest Expense” means, for any Person, for
any period, determined on a consolidated basis in accordance with GAAP, the sum
of all interest on Indebtedness paid or 


 


14

















 


payable (including the portion of rents payable under
Capital Lease Obligations allocable to interest) in or for such period, plus
all original issue discount and other interest expense associated with
Indebtedness accreted or amortized or required to be accreted or amortized in
or for such period.


 


“Interest Payment Date” means (a) with respect
to any ABR Loan (other than a Swingline Loan), the last day of each March,
June, September and December and the Revolving Credit Termination Date or the
Term Loan Maturity, as applicable; (b) with respect to any Eurodollar Loan, the
last day of the Interest Period applicable to the Borrowing of which such Loan
is a part and, in the case of a Eurodollar Borrowing with an Interest Period of
more than three months’ duration, each day prior to the last day of such
Interest Period that occurs at intervals of three months’ duration after the
first day of such Interest Period; (c) with respect to any Eurocurrency Loan,
the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest
Period of more than three months’ duration, each day prior to the last day of
such Interest Period that occurs at intervals of three months’ duration after
the first day of such Interest Period and until Euro Term Loan Maturity Date;
(d) with respect to any Swingline Loan, the day that such Loan is required
to be repaid, and (e) with respect to any Euro Swingline Loan, the last day of
the Interest Period applicable thereto or on the last Business Day of each
calendar month.


 


“Interest Period” means with respect to any
Eurodollar Borrowing and any Eurocurrency Borrowing, the period commencing on
the date of such Borrowing and ending on the numerically corresponding day in
the calendar month that is one, two, three or six months thereafter, as the
Borrower may elect; provided, that (i) if any Interest Period would end
on a day other than a London Business Day (in the case of any Eurodollar
Borrowing) or a TARGET Day that is not also a London Business Day (in the case
of any Eurocurrency Borrowing), such Interest Period shall be extended to the
next succeeding London Business Day or TARGET Day that is a London Business
Day, as applicable, unless such next succeeding London Business Day or TARGET
Day that is a London Business Day, as applicable, would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding London Business Day or TARGET Day that is not also a London Business
Day, as applicable, and (ii) any Interest Period pertaining to a Eurodollar
Borrowing or a Eurocurrency Borrowing that commences on the last London
Business Day (in the case of any Eurodollar Borrowing) or TARGET Day that is a
London Business Day (in the case of any Eurocurrency Borrowing) of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last London
Business Day or TARGET Day that is a London Business Day, as applicable, of the
last calendar month of such Interest Period. For purposes hereof, the date of a
Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.


 


“Investment” means any investment in any
Person, whether by means of a purchase of Equity Interests or debt securities,
capital contribution, loan, guarantee, time deposit or otherwise (but not
including any demand deposit).


 


“Issuing Lender” means JPMorgan Chase Bank,
N.A., in its capacity as the issuer of Letters of Credit hereunder, and its
successors in such capacity as provided in Section 2.05(i), 


 


15

















 


and, solely with respect to the Existing Letters of
Credit, Wells Fargo Bank, N.A. The Issuing Lender may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates of the
Issuing Lender, in which case the term “Issuing Lender” shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate.


 


“Joinder Agreement” means those agreements in
the form of Exhibit 1.1B(i) and Exhibit 1.1B(ii).


 


“Law” means all laws, statutes, treaties,
ordinances, codes, acts, rules, regulations, Government Approvals and Orders of
all Governmental Authorities, whether now or hereafter in effect.


 


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


 


“LC Exposure” means, at any time, the sum of
(a) the aggregate undrawn amount of all outstanding Letters of Credit at such
time plus (b) the aggregate amount of all LC Disbursements that
have not yet been reimbursed by or on behalf of the US Borrower or
converted into a Revolving Loan or Swingline Loan pursuant to Section 2.05(e)
at such time. The LC Exposure of any Lender at any time shall be its Applicable
Percentage of the total LC Exposure at such time.


 


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


 


“Letter of Credit” means any letter of credit
issued pursuant to Section 2.05 of this Agreement.


 


“Leverage Ratio” means, for any trailing four
quarter period, the ratio of Consolidated Funded Indebtedness of the Parent on
the last day of such period to Consolidated Pro Forma EBITDA of the Parent for
such trailing four-quarter period.


 


“LIBO Rate” means, with respect to any
Eurodollar Borrowing for any Interest Period, the rate appearing on Page 3750
of the Telerate System Incorporated Service, the Dow Jones Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately
11:00 a.m., London, England time, two (2) Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the “LIBO Rate” with respect to
such Eurodollar Borrowing for such Interest Period shall be the rate at which
dollar deposits of $5,000,000 and for a maturity comparable to such Interest
Period are offered by the principal London, England office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., 


 


16

















 


London, England time, two Business Days prior to the
commencement of such Interest Period.


 


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


 


“Loan Documents” means this Agreement, the
Letters of Credit (and any applications therefor and reimbursement agreements
relating thereto), the Security Documents, the Fee Letter and each Swap
Agreement with any Lender or Affiliate thereof entered into pursuant to Section
6.07.


 


“Loans” means the loans made by the Lenders to
the US Borrower or the Euro Borrower, as applicable, pursuant to this
Agreement.


 


“London Business Day” means a day that is not a
Saturday, Sunday or other day on which commercial banks in London, England are
authorized or required by Law to remain closed.


 


“Mandatory Cost” means the percentage rate per
annum calculated by the Euro Administrative Agent in accordance with Exhibit
1.1E.


 


“Market Rate of Exchange” has the meaning set
forth in Section 2.11(d).


 


“Material Adverse Effect” means a material
adverse effect on (i) the business, operations, assets, property, or condition
(financial or otherwise) of the either of the Borrowers and their respective
Subsidiaries, taken as a whole, (ii) the ability of the Borrowers or Guarantors
to perform their Obligations under the Loan Documents, (iii) the validity or
enforceability of any of the Loan Documents or (iv) the rights and
remedies of the Administrative Agents and the Lenders under the Loan Documents.


 


“Material Contract” means any contract or
agreement, written or oral, to which either of the Borrowers or any of their
Subsidiaries is a party to the extent a default under such contract could
reasonably be expected to have a Material Adverse Effect.


 


“Material Indebtedness” means Indebtedness
(other than the Loans, Letters of Credit and Euro Letters of Credit) or
obligations in respect of one or more Swap Agreements, of any one or more of
the Borrowers and their respective Subsidiaries in an aggregate principal
amount exceeding $2,000,000. For purposes of determining Material Indebtedness,
the “principal amount” of the obligations of either of the Borrowers or any of
their respective Subsidiaries in respect of any Swap Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting agreements)
that such Borrower or such Subsidiary would be required to pay if such Swap
Agreement were terminated at such time.


 


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


 


17

















 


“Mortgages” means mortgages on real property,
including the leasehold in Pennsylvania.


 


“Mortgaged Property” means the real property
located in Pennsylvania and Connecticut covered by the Mortgages.


 


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


 


“Net Cash Proceeds” means:


 


(a)           with
respect to any Asset Sale, the cash proceeds received by any Borrower or any of
its respective Subsidiaries (including cash proceeds subsequently received in
respect of non-cash consideration initially received) in respect thereof, net
of (i) payments, fees, premiums, underwriting discounts, commissions, costs and
expenses paid or incurred in connection with such Asset Sale, (ii) amounts
provided as a reserve against any liabilities under any indemnification
obligations associated with such Asset Sale (provided that amounts
released from such reserves shall constitute Net Cash Proceeds), (iii) all
Taxes paid or payable in connection with such Asset Sale and (iv) the amount of
all payments required to be made as a result of such Asset Sale to repay any
Indebtedness (other than the Loans) secured by such asset or otherwise subject
to mandatory prepayment as a result of such Asset Sale; and


 


(b)           with
respect to any Casualty Event, the cash insurance proceeds, cash condemnation
awards and other cash compensation received by any Borrower or any of its
respective Subsidiaries in respect thereof, net of (i) payments, fees,
premiums, costs and expenses paid or incurred in connection with such Casualty
Event, including costs and expenses incurred in connection with the collection
of such proceeds, awards or other compensation in respect of such Casualty
Event, (ii) all Taxes paid or payable in connection with such Casualty
Event and (iii) the amount of all payments required to be made as a result of
such Casualty Event to repay any Indebtedness (other than the Loans) secured by
such asset or otherwise subject to mandatory prepayment as a result of such
Casualty Event;


 


provided that, in the case of any
Casualty Event, Net Cash Proceeds shall exclude all proceeds in respect of
business interruption insurance, and in each case of any Asset Sale or any
Casualty Event by a Subsidiary of the Parent that is not a Wholly Owned
Subsidiary of the Parent, only the Parent’s and its Wholly Owned Subsidiaries’
pro rata portion of such Net Cash Proceeds shall constitute Net Cash Proceeds.


 


“Net Income” means, for any Person, for any
period, the net income or loss of the for such period determined on a
consolidated basis in accordance with GAAP.


 


“New York Business Day” means a day that is not
a Saturday, Sunday or other day on which commercial banks in New York City, New
York are authorized or required by Law to remain closed.


 


18
















 


“Non-Financed Capital Expenditures” means
Capital Expenditures other than those financed by Indebtedness permitted under Section
6.01(c).


 


“Obligations” means all of the duties,
obligations and liabilities of any kind of the Borrowers and each Guarantor hereunder
or under any of the Loan Documents.


 


“Obligors” means the Borrowers and each
Guarantor.


 


“Order” means an order, writ, judgment, award,
injunction, decree, ruling or decision of any Governmental Authority or
arbitrator.


 


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


 


“Parent” has the meaning given in the preamble.


 


“Participant” has the meaning set forth in Section
10.04.


 


“Participating Member State” means a member
state of the European Community that adopts or has adopted the Euro as its
lawful currency under the legislation of the European Union for European
Monetary Union.


 


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


 


“Permitted Encumbrances” means:


 


(a)           Liens
imposed by law for Taxes that are not yet due or are being contested in
compliance with Section 5.04;


 


(b)           carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords’, suppliers’,
processors’ and other like Liens imposed by Law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.04;


 


(c)           pledges
and deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws or
regulations;


 


(d)           utility
deposits and deposits to secure the performance of bids, tenders,  contracts, leases, statutory obligations,
surety and appeal bonds (or deposits made to otherwise secure an appeal, stay
or discharge in the course of any legal proceeding), performance or completion
bonds and other obligations of a like nature, in each case in the ordinary
course of business;


 


(e)           judgment
liens in respect of judgments that do not constitute an Event of Default under clause
(k) of Section 7.01;


 


19

















 


(f)            easements,
zoning restrictions, rights-of-way, reservations, subdivisions and similar
encumbrances or rights of others for rights-of-way, utilities and other similar
purposes, or zoning or other restrictions as to the use of owned or leased real
property and minor defects and irregularities in title on real property imposed
by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business of either
Borrower or any of its respective Subsidiaries;


 


(g)           Liens
arising from filing UCC financing statements regarding leases permitted by this
Agreement; and


 


(h)           Liens
of licensors on licenses or sublicenses of Intellectual Property;


 


provided  that the term “Permitted
Encumbrances” shall not include any Lien securing Indebtedness.


 


“Permitted Investments” means:


 


(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
or instrumentality 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)           Euro-denominated
securities issued or unconditionally guaranteed or insured by any Participating
Member State or Switzerland (or by any agency or instrumentality thereof to the
extent such securities are backed by the full faith and credit of such
Participating Member State), in each case maturing within one year from the
date of acquisition thereof;


 


(c)           investments
in commercial paper maturing within one year from the date of acquisition
thereof and having, at such date of acquisition, a rating of at least F1 by
Fitch, P-1 by Moody’s or A-1 by S&P;


 


(d)           investments
in certificates of deposit, banker’s acceptances and time deposits maturing
within one year from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, (i) any
domestic office of any commercial bank organized under the laws of the United
States of America or any State thereof that has a combined capital and surplus
and undivided profits of not less than $500,000,000 or (ii) any financial
institution in a Participating Member State or Switzerland, which financial
institution has short term unsecured, unsubordinated and unguaranteed debt
instruments in issue having a rating of at least F1 by Fitch, P-1 by Moody’s or
A-1 by S&P; provided that with respect to any Foreign Subsidiary
whose country of organization or country where it conducts its business operations
is not a Participating Member State or Switzerland, Permitted Investments shall
also mean those investments that are comparable to the investments set forth in
this clause (d) in such Foreign Subsidiary’s country of organization or
country where it conducts business operations;


 


20

















 


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


 


(f)            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 at least AAA by S&P, Aaa by Moody’s or AAA by Fitch or (iii) are
rated as described in clause (ii) and invest solely in the assets described in clauses
(a) through (e) above.


 


“Permitted Liens” means Liens that any of the
Borrowers and their respective Subsidiaries are permitted to create, incur,
assume or permit to exist pursuant to Section 6.02.


 


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


 


“Plan” means any employee pension benefit plan
(other than a Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of
which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.


 


“Prime Rate” means the rate of interest per
annum publicly announced from time to time by JPMorgan Chase Bank, N.A. as its
prime rate in effect at its office located at 270 Park Avenue, New York,
New York; each change in the Prime Rate shall be effective from and including
the date such change is publicly announced as being effective.


 


 “Reference
Bank” means the principal London office of J. P. Morgan Europe Limited or
such other banks as may be appointed by the Euro Administrative Agent in
consultation with the US Borrower.


 


“Register” has the meaning set forth in Section
10.04.


 


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


 


“Required Lenders” means, at any time, Lenders
having Revolving Credit Exposures, Euro Revolving Credit Exposures, Euro Term
Loans, Term Loans and unused Commitments representing more than 50% of the sum
of the total Revolving Credit Exposures, Euro Revolving Credit Exposures, Euro
Term Loans, Term Loans and unused Commitments at such time.


 


“Response” means (a) “response” as such term is
defined in CERCLA, 42 U.S.C. §9601(24), and (b) all other actions required by
any Governmental Authority or voluntarily undertaken to:  (i) clean up, remove, treat, abate, or in any
other way address any Hazardous Material in the environment; (ii) prevent the
release or threatened release of any Hazardous Material; or (iii) perform
studies and investigations in connection with, or as a precondition to, clause
(i) or (ii) above.


 


21

















 


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


 


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


 


“Revolving Credit Lender” means a Lender with a
Revolving Loan Commitment or, if the Revolving Loan Commitments have terminated
or expired, a Lender with Revolving Credit Exposure.


 


“Revolving Credit Termination Date” means the
fifth anniversary of the Closing Date.


 


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


 


“Revolving Loan Commitment” means, with respect
to each Revolving Credit Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.09
or Section 2.19 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 2.18 or Section
10.04. The initial amount of each such Lender’s Revolving Loan Commitment
is set forth on Schedule 2.01, or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Revolving Loan Commitment,
as applicable. The initial aggregate amount of the Lenders’ Revolving Loan
Commitments is $25,000,000.


 


“S&P” means Standard & Poor’s Rating
Services, a division of the McGraw Hill Companies, Inc.


 


“Screen Rate” means, with respect to the
EURIBOR, the percentage rate per annum determined by the Euro Administrative
Agent to be the current rate of the Banking Federation of the European Union
for the Reuters (Telerate) Screen - Page 248. In the event that such rate does
not appear thereon (or otherwise on such service), the “Screen Rate” for
purposes of this definition shall be determined by:  (i) reference to such other comparable
publicly available service for displaying EURIBOR rates as may be reasonably
selected by the Euro Administrative Agent or (ii) at its option, the rate at
which Euros approximately equal in principal amount to such Borrowing and for a
maturity equal to the applicable Interest Period are offered in immediately
available funds to the principal office of the Euro Administrative Agent in
London, England by leading banks in the European Market for Euros at
approximately 11:00 a.m., London, England time, two (2) TARGET Days prior to
the commencement of such Interest Period.


 


22

















 


“Secured Parties” means, (a) in respect of the
Obligations of the US Borrower or the US Guarantors, the Administrative Agent,
each Lender (other than any Eurocurrency Lender) and each Affiliate of any such
Lender who is owed any portion of the Obligations of the US Borrower or the US
Guarantors or (b) in respect of the Obligations of the Euro Borrower and the
Euro Guarantors, the Euro Administrative Agent, each Eurocurrency Lender and
each Affiliate of any such Eurocurrency Lender who is owed any portion of the
Obligations of the Euro Borrower or the Euro Guarantors.


 


“Security Agreements” means (a) that certain
Security and Pledge Agreement substantially in the form of Exhibit 1.1C,
executed by the US Borrower and all of the Domestic Subsidiaries, if any, of
the US Borrower that are Wholly Owned Subsidiaries of the US Borrower and a
party thereto and to be joined by such other Domestic Subsidiaries of the US
Borrower as provided in Section 5.09(a)(ii) for the benefit of the
Secured Parties in respect of the Obligations of the US Borrower or the US
Guarantors pursuant to which each such party pledges substantially all of the
personal property of such Obligor in accordance with the terms of such Security
and Pledge Agreement and (b) those certain Security and Pledge Agreement and
Share Pledge Agreements substantially in the forms of Exhibit 1.1D,
executed by the Euro Borrower and certain of its Subsidiaries, which are party
thereto and to be joined by such Foreign and Domestic Subsidiaries of the US
Borrower as provided in Section 5.09(a)(i), Section 5.09(b) and Section
5.09(c), for the benefit of Secured Parties in respect of the Obligations
of the Euro Borrower and the Euro Guarantors pursuant to which each such party
pledges its right, title and interest in 100% of the Equity Interests in its
Foreign Subsidiaries that are Wholly Owned Subsidiaries of the Euro Borrower
and all of the shareholder loans owed to such party by such Foreign
Subsidiaries.


 


“Security Documents” means the Security
Agreements, the Mortgages, each Joinder Agreement, and each other security
document or pledge agreement delivered in accordance with applicable local or
foreign Law to grant a valid, perfected security interest in any property, and
all UCC or other financing statements or instruments of perfection required by
this Agreement, any security agreement or mortgage to be filed with respect to
the security interests in property and fixtures created pursuant to the
Security Agreement or any mortgage and any other document or instrument
utilized to pledge as collateral for any of the Obligations any property of
whatever kind or nature.


 


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


 


23

















 


Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.


 


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


 


“Swap Agreement” means any agreement with
respect to any swap, forward, future or derivative transaction or option or
similar agreement involving, or settled by reference to, one or more rates,
currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk
or value or any similar transaction or any combination of these transactions
that is entered into in the ordinary course of business for risk management
purposes and not for speculative purposes; provided that no phantom
stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
any Borrower or any of its respective Subsidiaries shall be a Swap Agreement.


 


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


 


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


 


“Swingline Loan” means a Loan made pursuant to Section
2.04(a).


 


“Swingline Rate” means a rate per annum equal
to the Alternate Base Rate plus the Applicable Margin.


 


“Target” means DYNAenergetics GmbH & Co.
KG.


 


“TARGET Day” means any day on which the
Trans-European Automated Real-time Gross Settlement Express Transfer payment
system is open for the settlement of payments in Euros.


 


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


 


24

















 


“Term Lender” means a Lender with Term Loan
Commitment or an outstanding Term Loan.


 


“Term Loan” means a Loan made pursuant to Section
2.01(b).


 


“Term Loan Commitment” means, with respect to
each Term Lender, the commitment of such Lender to make a Term Loan hereunder
in the amount set forth on Schedule 2.01, as such Commitment may be
reduced or increased pursuant to Section 2.18 or Section 10.04. The
initial amount of each such Lender’s Term Loan Commitment is set forth on Schedule
2.01, or in the Assignment and Assumption pursuant to which such Lender
shall have assumed its Term Loan Commitment, as applicable. The initial
aggregate amount of the Lenders’ Term Loan Commitments is $45,000,000.


 


“Term Loan Maturity Date” means the fifth
anniversary of the Closing Date.


 


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


 


 “Transactions”
means the execution, delivery and performance by the Borrowers of this
Agreement and the other Loan Documents, the borrowing of Loans, the use of the
proceeds thereof and the issuance of Letters of Credit hereunder.


 


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


 


“Uniform Commercial Code” or “UCC” means
the Uniform Commercial Code as in effect from time to time in the State of New
York or any other State the Laws of which are required to be applied in
connection with the issue or perfection of security interests.


 


“US Guarantors” means each of the US Borrower’s
existing and subsequently acquired or organized Wholly Owned Subsidiaries that
are Domestic Subsidiaries (other than any Domestic Subsidiary of any Foreign Subsidiary),
which US Guarantors guarantee certain Obligations under the Loan Documents
pursuant to either Section 9.01(a)(i) or Section 9.01(a)(ii).


 


“US Indemnitee” has the meaning set forth in Section
10.03(b).


 


25

















 


“Wholly Owned Subsidiary” means, with respect
to any parent at any date, a Subsidiary of which Equity Interests representing
100% of the equity or general partnership interests, as applicable (other than
director or nominal shares), are, as of such date, owned, Controlled or held by
such parent or one or more Wholly Owned Subsidiaries of such parent or by such
parent and one or more Wholly Owned Subsidiaries of such parent.


 


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


 


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


 


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


 


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


 


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ARTICLE II




The Credits


 


Section 2.01           Commitments  Subject to the terms and conditions set forth
herein:


 


(a)           Each
Revolving Credit Lender agrees to make loans to the US Borrower from time
to time during the Availability Period in an aggregate principal amount that
will not result in such Lender’s Revolving Credit Exposure exceeding such
Lender’s Revolving Loan Commitment. Within the foregoing limits and subject to
the terms and conditions set forth herein, the US Borrower may borrow,
prepay and reborrow Revolving Loans. Notwithstanding the foregoing, no more
than $7,000,000 may be drawn
under the Revolving Loan Commitments on the Closing Date, and no more than
$12,500,000 may be outstanding under the Revolving Loan Commitments at any time
prior to compliance with the covenant contained in Section 5.15.


 


(b)           Each
Term Lender agrees to make a single loan to the US Borrower on the Closing
Date in the principal amount of such Lender’s Term Loan Commitment. The Term
Loan Commitments are not revolving in nature, and amounts prepaid or repaid
with respect to Term Loans may not be reborrowed.


 


(c)           Each
Euro Term Lender agrees to make a single loan to the Euro Borrower on the
Closing Date in the principal amount of such Lender’s Euro Term Loan Commitment.
The Euro Term Loan Commitments are not revolving in nature, and amounts prepaid
or repaid with respect to Euro Term Loans may not be reborrowed.


 


(d)           Each
Euro Revolving Credit Lender agrees to make Loans to the Euro Borrower from
time to time during the Availability Period in an aggregate amount that will
not result in such Lender’s Euro Revolving Credit Exposure exceeding such
Lender’s Euro Revolving Loan Commitment. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Euro Borrower may
borrow, prepay and reborrow Euro Revolving Loans. Notwithstanding the foregoing,
not more than €1,000,000 may be drawn under the Euro Revolving Loan Commitments
on the Closing Date, and no more than €3,500,000 may be outstanding under the
Euro Revolving Loan Commitments at any time prior to compliance with the
covenant contained in Section 5.15.


 


Section 2.02           Loans and Borrowings  (a) Each Loan of any Class (other than a
Swingline Loan or a Euro Swingline Loan) shall be made as part of a Borrowing
consisting of Loans of such Class made by the appropriate Lenders ratably in
accordance with their respective Commitments of such Class. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments of
the Lenders are several and no Lender shall be responsible for any other Lender’s
failure to make Loans as required.


 


(b)           Subject
to Section 2.13, each Borrowing under the Revolving Loan Commitment and
the Term Loan Commitment shall be comprised entirely of ABR Loans or Eurodollar
Loans as the US Borrower may request in accordance herewith. Each Lender at its
option may 


 


27

















 


make any Eurodollar Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect
such Lender’s Commitment or the obligation of the US Borrower to repay such
Loan in accordance with the terms of this Agreement. Each Borrowing under the
Euro Term Loan Commitment and the Euro Revolving Loan Commitment shall be
comprised entirely of Eurocurrency Loans.


 


(c)           At
the commencement of each Interest Period for any Eurodollar Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of
$100,000 and not less than $500,000. At the commencement of each Interest
Period for any Eurocurrency Borrowing, such Borrowing shall be in an aggregate
amount that is an integral multiple of €100,000 and not less than €1,000,000. At
the time that each ABR Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $50,000 and not less than
$100,000; provided that an ABR Borrowing may be in an aggregate amount
that is equal to (i) the entire unused balance of the total Revolving Loan
Commitments, (ii) that which is required to repay a Swingline Loan, or
(iii) that which is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e). Borrowings of more than
one Type and Class may be outstanding at the same time; provided that
there shall not at any time be more than a total of five (5) Eurodollar
Borrowings outstanding and there shall not at any time be more than a total of
five (5) Eurocurrency Borrowings outstanding.


 


(d)           Notwithstanding
any other provision of this Agreement, no Borrower shall be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Revolving Credit
Termination Date, Term Loan Maturity Date or Euro Term Loan Maturity Date, as
applicable.


 


Section 2.03           Requests for Borrowings  To request a Borrowing other than a Swingline
Loan or a Euro Swingline Loan, the US Borrower or the Euro Borrower, as
applicable, shall make such request by telephone (a) in the case of a Eurodollar
Borrowing, to the Administrative Agent, not later than 12:00 noon, New York
City time, three (3) Business Days before the date of the proposed Borrowing,
(b) in the case of an ABR Borrowing, to the Administrative Agent, not later
than 12:00 noon, New York City time, one (1) Business Day before the date of
the proposed Borrowing, or (c) in the case of a Eurocurrency Borrowing, to the
Euro Administrative Agent not later than 11:00 a.m., London, England time,
three (3) Business Days before the date of the proposed Borrowing; provided
that any such notice of an ABR Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e) may be given not later
than 11:00 a.m., New York City time, on the date of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent or the Euro
Administrative Agent, as applicable, of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the US Borrower or the Euro
Borrower, as applicable. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:


 


(i)            the
aggregate amount of the requested Borrowing;


 


(ii)           the
date of such Borrowing, which shall be a Business Day (or, in the case of a
Eurocurrency Borrowing, a TARGET Day that is a London Business Day);


 


28

















 


(iii)          the Class of such Borrowing;


 


(iv)          whether
such Borrowing is to be an ABR Borrowing, a Eurodollar Borrowing or a
Eurocurrency Borrowing, as applicable;


 


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


 


(vi)          the
location and number of the account to which funds are to be disbursed, which
shall comply with the requirements of Section 2.06.


 


If no election as to the Type of Borrowing is
specified, with respect to Borrowings under the Revolving Loan Commitments and
the Term Loan Commitments, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period is specified with respect to any requested
Eurodollar Borrowing or any Eurocurrency Borrowing, then the US Borrower or the
Euro Borrower, as applicable, shall be deemed to have selected an Interest
Period of one month’s duration. Promptly following receipt of a Borrowing
Request in accordance with this Section, with respect to Borrowings under the
Revolving Loan Commitments and the Term Loan Commitments, the Administrative
Agent shall advise each Lender having a Revolving Loan Commitment or a Term
Loan Commitment, as applicable, of the details such Borrowing Request and of
the amount of such Lender’s Loan to be made as part of the requested Borrowing.
Promptly following receipt of a Borrowing Request in accordance with this
Section, with respect to Borrowings under the Euro Term Loan Commitments and
the Euro Revolving Loan Commitments, the Euro Administrative Agent shall advise
each Lender having a Euro Term Loan Commitment or a Euro Revolving Loan
Commitment of the details of such Borrowing Request and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.


 


Section 2.04           Swingline Loans


 


(a)           US
Swingline Loans. (i) Subject to the terms and conditions set forth herein,
the Swingline Lender agrees to make Swingline Loans to the US Borrower from
time to time during the Availability Period in an aggregate principal amount at
any time outstanding that will not result in (i) the aggregate principal
amount of outstanding Swingline Loans exceeding $5,000,000 or (ii) the
total Revolving Credit Exposures exceeding the total Revolving Loan Commitments;
provided that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing
limits and subject to the terms and conditions set forth herein, the US
Borrower may borrow, prepay and reborrow Swingline Loans. Each Swingline Loan
shall be in an amount that is an integral multiple of $1 and not less than
$25,000.


 


(ii)  To request
a Swingline Loan, the US Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, New
York City time, on the day of a proposed Swingline Loan. Each such notice shall
be irrevocable and shall specify the requested date (which shall be a Business
Day) and amount of the requested Swingline Loan. The Administrative Agent will
promptly advise the Swingline Lender of any such notice received from the US
Borrower. The Swingline Lender shall make 


 


29

















 


each Swingline Loan available to the US Borrower by
means of a credit to the general deposit account of the US Borrower with the
Swingline Lender (or, in the case of a Swingline Loan made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e), by
remittance to the Issuing Lender) by 3:00 p.m., New York City time, on the
requested date of such Swingline Loan.


 


(iii)   The
Swingline Lender may by written notice given to the Administrative Agent not
later than 11:00 a.m., New York City time, on any Business Day require the
Revolving Credit Lenders to acquire participations on such Business Day in all
or a portion of the Swingline Loans outstanding. Such notice shall specify the
aggregate amount of Swingline Loans in which the Revolving Credit Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Revolving Credit Lender, specifying in such
notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each
Revolving Credit Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Administrative Agent, for
the account of the Swingline Lender, such Lender’s Applicable Percentage of
such Swingline Loan or Loans. Each Revolving Credit Lender acknowledges and
agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default or reduction or termination of
the Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Revolving Credit Lender
shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06
with respect to Loans made by such Lender (and Section 2.07 shall apply,
mutatis mutandis, to the payment
obligations of such Lender), and the Administrative Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Revolving Credit
Lenders. The Administrative Agent shall notify the US Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the US Borrower (or other party on behalf of the US
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Revolving
Credit Lenders that shall have made their payments pursuant to this paragraph
and to the Swingline Lender, as their interests may appear; provided
that any such payment so remitted shall be repaid by the Swingline Lender or to
the Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the US Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the US Borrower of any default in the payment thereof.


 


(b)           Euro
Swingline Loans. (i) Subject to the terms and conditions set forth herein,
the Euro Swingline Lender agrees to make Euro Swingline Loans to the Euro
Borrower from time to time during the Euro Availability Period in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Euro Swingline Loans exceeding
€1,000,000 or (ii) the total Euro Revolving Credit Exposures exceeding the
total Euro Revolving Loan Commitments; provided that the Euro Swingline
Lender shall not be required to make a Euro Swingline Loan to refinance an
outstanding Euro 


 


30

















 


Swingline Loan. Within
the foregoing limits and subject to the terms and conditions set forth herein,
the Euro Borrower may borrow, prepay and reborrow Euro Swingline Loans. Each
Euro Swingline Loan shall be in an amount that is not less than €250,000.


 


(ii)           To
request a Euro Swingline Loan, the Euro Borrower shall notify the Euro
Administrative Agent of such request by telephone (confirmed in writing by
telecopy no later than 9:00 a.m., London time), not later than 9:00 a.m.,
London time, on the day of a proposed Euro Swingline Loan. Each such notice
shall be irrevocable and shall specify the requested date (which shall be a
London Business Day) and amount of the requested Euro Swingline Loan. The Euro
Administrative Agent will promptly advise the Euro Swingline Lender of any such
notice received from the Euro Borrower. The Euro Swingline Lender shall make
each Euro Swingline Loan available to the Euro Borrower by means of a credit to
a deposit account of the Euro Borrower designated by Euro Borrower in writing
in its confirmation of its request for such Euro Swingline Loan (or, in the
case of a Euro Swingline Loan made to finance the reimbursement of a Euro LC
Disbursement as provided in Section 2.06(e)) by 3:00 p.m., London time,
on the requested date of such Euro Swingline Loan.


 


(iii)          The Euro Swingline Lender may by written
notice given to the Euro Administrative Agent not later than 11:00 a.m., London
time, on any London Business Day require the Euro Revolving Credit Lenders to
acquire participations on such London Business Day in all or a portion of the
Euro Swingline Loans outstanding. Such notice shall specify the aggregate
amount of Euro Swingline Loans in which the Euro Revolving Credit Lenders will
participate. Promptly upon receipt of such notice, the Euro Administrative
Agent will give notice thereof to each Euro Revolving Credit Lender, specifying
in such notice such Euro Lender’s Applicable Percentage of such Euro Swingline
Loan or Loans. Each Euro Revolving Credit Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Euro Administrative Agent, for the account of the Euro Swingline Lender, such
Lender’s Euro Applicable Percentage of such Euro Swingline Loan or Loans. Each
Euro Revolving Credit Lender acknowledges and agrees that its obligation to
acquire participations in Euro Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or an Event
of Default or reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Euro Revolving Credit Lender shall comply with its obligation
under this paragraph by wire transfer of immediately available funds, in the
same manner as provided in Section 2.06 with respect to Loans made by
such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of such
Lender), and the Euro Administrative Agent shall promptly pay to the Euro
Swingline Lender the amounts so received by it from the Euro Revolving Credit
Lenders. The Euro Administrative Agent shall notify the Euro Borrower of any
participations in any Euro Swingline Loan acquired pursuant to this paragraph,
and thereafter payments in respect of such Euro Swingline Loan shall be made to
the Euro Administrative Agent and not to the Euro Swingline Lender. Any amounts
received by the Euro Swingline Lender from the Euro Borrower (or other party on
behalf of the Euro Borrower) in respect of a Euro Swingline Loan after receipt
by the Euro Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Euro Administrative Agent; any such
amounts received by the Euro Administrative Agent shall be promptly remitted by
the Euro Administrative Agent to the Euro Revolving Credit Lenders that shall
have made their payments pursuant to this paragraph and to 


 


31

















 


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


 


Section 2.05           Letters of Credit; Existing Letters of
Credit.  (a) General. Subject
to the terms and conditions set forth herein, the US Borrower may request the
issuance of, and the Issuing Lender shall issue, Letters of Credit for the
account of the US Borrower or the account of any of its Subsidiaries, in a form
reasonably acceptable to the Administrative Agent and the Issuing Lender, at
any time and from time to time during the Availability Period. In the event of
any inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application or other
agreement submitted by the US Borrower to, or entered into by the US Borrower
with, the Issuing Lender relating to any Letter of Credit, the terms and
conditions of this Agreement shall control. The Existing Letters of Credit
shall be deemed to be issued hereunder and shall be Letters of Credit for all
purposes hereunder.


 


(b)           Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of
an outstanding Letter of Credit), the US Borrower shall hand deliver or
telecopy (or transmit by electronic communication, if arrangements for doing so
have been approved by the Issuing Lender) to the Issuing Lender and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which
shall be a New York Business Day), the date on which such Letter of Credit is
to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare, amend,
renew or extend such Letter of Credit. If requested by the Issuing Lender, the
US Borrower also shall submit a letter of credit application on the Issuing
Lender’s standard form in connection with any request for a Letter of Credit. A
Letter of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the US
Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension (i) the LC Exposure shall not
exceed $5,000,000 and (ii) the total Revolving Credit Exposures shall not
exceed the total Revolving Loan Commitments.


 


(c)           Expiration
Date. Each Letter of Credit shall expire at or prior to 5:00 p.m., New York
City time, on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the date that is
five (5) Business Days prior to the Revolving Credit Termination Date; provided,
however, that any Letter of Credit with a one-year tenor may provide for the
renewal thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (ii) above), and further provided,
the Existing Letters of Credit may expire later than one year after the date of
issuance, provided any renewal or extension thereof complies with the foregoing
provisions.


 


32

















 


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


 


(e)           Reimbursement.
If the Issuing Lender shall make any LC Disbursement in respect of a Letter of
Credit for the US Borrower’s own account or the account of any of its
Subsidiaries, the US Borrower shall reimburse such LC Disbursement by paying to
the Administrative Agent an amount equal to such LC Disbursement not later than
1:00 p.m., New York City time, on the date that such LC Disbursement is made,
if the US Borrower shall have received notice of such LC Disbursement prior to
11:00 a.m., New York City time, on such date, or, if such notice has not been
received by the US Borrower prior to such time on such date, then not later
than 1:00 p.m., New York City time, on the Business Day immediately following
the day that the US Borrower receives such notice, if such notice is not
received prior to such time on the day of receipt; provided that, if
such LC Disbursement is not less than $1,000,000,
the US Borrower may, subject to the conditions to borrowing set forth herein,
request, in accordance with Section 2.03 or Section 2.04, that
such payment be financed with an ABR Revolving Borrowing or Swingline Loan in
an equivalent amount and, to the extent so financed, the US Borrower’s
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing or Swingline Loan. If the US Borrower fails
to make such payment when due, the Administrative Agent shall notify each
Revolving Credit Lender of the applicable LC Disbursement, the payment then due
from the US Borrower in respect thereof and such Lender’s Applicable Percentage
thereof. Promptly following receipt of such notice, each Revolving Credit
Lender shall pay to the Administrative Agent its Applicable Percentage of the
payment then due from the US Borrower, in the same manner as provided in Section
2.07 with respect to Loans made by such Lender (and Section 2.07
shall apply, mutatis mutandis, to
the payment obligations of such Lender), and the Administrative Agent shall
promptly pay to the Issuing Lender the amounts so received by it from the
Revolving Credit Lenders. Promptly following receipt by the Administrative
Agent of any payment from the US Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the Issuing Lender or, to
the extent that the Revolving Credit Lenders have made payments pursuant to
this paragraph to reimburse the Issuing Lender, then to such Revolving Credit
Lenders and the Issuing Lender as their interests may appear. Any 


 


33

















 


payment made by a
Revolving Credit Lender pursuant to this paragraph to reimburse the Issuing
Lender for any LC Disbursement (other than the funding of ABR Revolving Loans
or a Swingline Loan as contemplated above) shall not constitute a Loan and
shall not relieve the US Borrower of its obligation to reimburse such LC
Disbursement.


 


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


 


(g)           Disbursement
Procedures. The Issuing Lender shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment
under a Letter of Credit. The Issuing Lender shall promptly notify the
Administrative Agent and the US Borrower by telephone (confirmed by telecopy)
of such demand for payment and whether the Issuing Lender has made or will make
an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the US Borrower of its obligation



 


34

















 


to reimburse the
Issuing Lender and the Revolving Credit Lenders with respect to any such LC
Disbursement.


 


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


 


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


 


(j)            Cash
Collateralization. If any Event of Default shall occur and be continuing,
on the Business Day that the US Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, or the Revolving Credit Lenders with LC Exposure
representing greater than 50% of the total LC Exposure demanding the deposit of
cash collateral pursuant to this paragraph), the US Borrower shall deposit in
an account with the Administrative Agent, in the name of the Administrative
Agent and for the benefit of the Revolving Credit Lenders, an amount in cash
equal to the LC Exposure as of such date plus any accrued and unpaid interest
thereon minus the amount on deposit in such account that has not been applied
against the Obligations of the US Borrower hereunder; provided that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the US Borrower described in clause (h) or (i) of Section 7.01.
Such deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the Obligations of the US Borrower under this
Agreement. The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits, which investments shall be
made at the 


 


35

















 


option and discretion of
the Administrative Agent (but, if so made, shall be limited to overnight bank
loans or other dollar-denominated investments generally comparable to those
described in clauses (a) through (f) of Permitted Investments) and at the
US Borrower’s risk and expense, such deposits shall not bear interest. Interest
or profits, if any, on such investments shall accumulate in such account. Moneys
in such account shall be applied by the Administrative Agent to reimburse the
Issuing Lender for LC Disbursements for which it has not been reimbursed and,
to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the US Borrower for the LC Exposure at such time
or, subject to the consent of Revolving Credit Lenders with LC Exposure representing
greater than 50% of the total LC Exposure, be applied to satisfy other
obligations of the US Borrower under this Agreement. If the US Borrower is required
to provide an amount of cash collateral hereunder, such amount (to the extent
not applied as aforesaid) shall be returned to the US Borrower within three
Business Days after all Events of Default have been cured or waived.


 


Section 2.06           Euro Letters of Credit.  (a) General. Subject to the terms and
conditions set forth herein, the Euro Borrower may request the issuance of, and
the Euro Issuing Lender shall issue, Euro Letters of Credit for the account of
the Euro Borrower or the account of any of its Subsidiaries, in a form
reasonably acceptable to the Euro Administrative Agent and the Euro Issuing
Lender, at any time and from time to time during the Availability Period. In
the event of any inconsistency between the terms and conditions of this Agreement
and the terms and conditions of any form of letter of credit application or
other agreement submitted by the Euro Borrower to, or entered into by the Euro
Borrower with, the Euro Issuing Lender relating to any Euro Letter of Credit,
the terms and conditions of this Agreement shall control.


 


(b)           Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Euro Letter of Credit (or the amendment, renewal or extension
of an outstanding Euro Letter of Credit), the Euro Borrower shall hand deliver
or telecopy to the Euro Issuing Lender and the Euro Administrative Agent (three
(3) London Business Days in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Euro Letter
of Credit, or identifying the Euro Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal or extension
(which shall be a London Business Day), the date on which such Euro Letter of
Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Euro Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Euro Letter of Credit. If requested by the
Euro Issuing Lender, the Euro Borrower also shall submit a letter of credit
application on the Euro Issuing Lender’s standard form in connection with any
request for a Euro Letter of Credit. A Euro Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Euro Letter of Credit the Euro Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the Euro LC Exposure shall not exceed €1,500,000 and
(ii) the total Euro Revolving Credit Exposures shall not exceed the total Euro
Revolving Loan Commitments. Each Euro Letter of Credit must be at least
€250,000, and the maximum number of outstanding Euro Letters of Credit at any
time shall not exceed five (5).


 


(c)           Expiration
Date. Each Euro Letter of Credit shall expire at or prior to 5:00 p.m.,
London time, on the earlier of (i) the date one year after the date of the
issuance of such Euro 


 


36

















 


Letter of Credit (or, in
the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five (5) Business Days prior to the
Revolving Credit Termination Date; provided, however, that any Euro
Letter of Credit with a one-year tenor may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the date
referred to in clause (ii) above).


 


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


 


(e)           Reimbursement.
If the Euro Issuing Lender shall make any Euro LC Disbursement in respect of a
Euro Letter of Credit for the Euro Borrower’s own account or the account of any
of its Subsidiaries, the Euro Borrower shall reimburse such Euro LC
Disbursement by paying to the Euro Administrative Agent an amount equal to such
LC Disbursement not later than 1:00 p.m., London time, on the date that such
Euro LC Disbursement is made, if the Euro Borrower shall have received notice
of such Euro LC Disbursement prior to 11:00 a.m., London time, on such date,
or, if such notice has not been received by the Euro Borrower prior to such
time on such date, then not later than 1:00 p.m., London time, on the Business
Day immediately following the day that the Euro Borrower receives such notice,
if such notice is not received prior to such time on the day of receipt; provided
that, if such Euro LC Disbursement is not less than €500,000, the Euro Borrower
may, subject to the conditions to borrowing set forth herein, request, in
accordance with Section 2.03 or Section 2.04, that such payment
be financed with a Euro Swingline Loan in an equivalent amount and, to the
extent so financed, the Euro Borrower’s obligation to make such payment shall
be discharged and replaced by the resulting Euro Swingline Loan. If the Euro
Borrower fails to make such payment when due, the Euro Administrative
Agent shall notify each Euro Revolving Credit Lender of the applicable Euro LC
Disbursement, the payment then due from the Euro Borrower in respect thereof
and such Lender’s Euro Applicable Percentage thereof. Promptly following
receipt of such notice, each Euro Revolving Credit Lender shall pay to the Euro
Administrative Agent its Euro Applicable Percentage of the payment then due
from the Euro Borrower, in the same manner as provided in Section 2.07
with respect to Loans 


 


37

















 


made by such
Lender (and Section 2.07 shall apply, mutatis
mutandis, to the payment obligations of such Lender), and the Euro
Administrative Agent shall promptly pay to the Euro Issuing Lender the amounts
so received by it from the Euro Revolving Credit Lenders. Promptly following
receipt by the Euro Administrative Agent of any payment from the Euro Borrower
pursuant to this paragraph, the Euro Administrative Agent shall distribute such
payment to the Euro Issuing Lender or, to the extent that the Euro Revolving
Credit Lenders have made payments pursuant to this paragraph to reimburse the
Euro Issuing Lender, then to such Euro Revolving Credit Lenders and the Euro
Issuing Lender as their interests may appear. Any payment made by a Euro
Revolving Credit Lender pursuant to this paragraph to reimburse the Euro
Issuing Lender for any Euro LC Disbursement (other than the funding of a Euro
Swingline Loan as contemplated above) shall not constitute a Loan and shall not
relieve the Euro Borrower of its obligation to reimburse such Euro LC
Disbursement.


 


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


 


38

















 


or refuse to
accept and make payment upon such documents if such documents are not in strict
compliance with the terms of such Euro Letter of Credit.


 


(g)           Disbursement
Procedures. The Euro Issuing Lender shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment
under a Euro Letter of Credit. The Euro Issuing Lender shall promptly notify
the Euro Administrative Agent and the Euro Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Euro Issuing Lender has
made or will make an Euro LC Disbursement thereunder; provided that any
failure to give or delay in giving such notice shall not relieve the Euro
Borrower of its obligation to reimburse the Euro Issuing Lender and the Euro
Revolving Credit Lenders with respect to any such Euro LC Disbursement.


 


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


 


(i)            Replacement
of the Euro Issuing Lender. The Euro Issuing Lender may be replaced at any time
by written agreement among the Euro Borrower, the Euro Administrative Agent,
the replaced Euro Issuing Lender and the successor Euro Issuing Lender. The
Euro Administrative Agent shall notify the Lenders of any such replacement of
the Euro Issuing Lender. At the time any such replacement shall become
effective, the Euro Borrower shall pay all unpaid fees accrued for the account
of the replaced Euro Issuing Lender pursuant to Section 2.11(b). From
and after the effective date of any such replacement, (i) the successor
Euro Issuing Lender shall have all the rights and obligations of the Euro
Issuing Lender under this Agreement with respect to Euro Letters of Credit to
be issued thereafter and (ii) references herein to the term “Euro Issuing
Lender” shall be deemed to refer to such successor or to any previous Euro
Issuing Lender, or to such successor and all previous Euro Issuing Lenders, as
the context shall require. After the replacement of an Euro Issuing Lender
hereunder, the replaced Euro Issuing Lender shall remain a party hereto and
shall continue to have all the rights and obligations of a Euro Issuing Lender
under this Agreement with respect to Euro Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Euro Letters
of Credit.


 


(j)            Cash
Collateralization. If any Event of Default shall occur and be continuing,
on the Business Day that the Euro Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, or the Euro Revolving Credit Lenders with Euro LC
Exposure representing greater than 50% of the total Euro LC Exposure demanding
the deposit of cash collateral pursuant to this paragraph), the Euro 


 


39

















 


Borrower shall
deposit in an account with the Euro Administrative Agent, in the name of the
Euro Administrative Agent and for the benefit of the Euro Revolving Credit
Lenders, an amount in cash equal to the Euro LC Exposure as of such date plus
any accrued and unpaid interest thereon minus the amount on deposit in such
account that has not been applied against the Obligations of the Euro Borrower
hereunder; provided that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Euro Borrower described
in clause (h) or (i) of Section 7.01. Such deposit shall be held by the
Euro Administrative Agent as collateral for the payment and performance of the
Obligations of the Euro Borrower under this Agreement. The Euro Administrative
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and
discretion of the Euro Administrative Agent (but, if so made, shall be limited
to overnight bank loans or other Euro-denominated investments generally
comparable to those described in clauses (a) through (f) of Permitted
Investments) and at the Euro Borrower’s risk and expense, such deposits shall
not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the Euro
Administrative Agent to reimburse the Euro Issuing Lender for Euro LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Euro Borrower for the Euro LC Exposure at such time or, subject to the
consent of Euro Revolving Credit Lenders with Euro LC Exposure representing
greater than 50% of the total Euro LC Exposure, be applied to satisfy other
obligations of the Euro Borrower under this Agreement. If the Euro Borrower is
required to provide an amount of cash collateral hereunder, such amount (to the
extent not applied as aforesaid) shall be returned to the Euro Borrower within
three Business Days after all Events of Default have been cured or waived.


 


Section 2.07           Funding of Borrowings  (a) Each Revolving Credit Lender and Term
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 1:00 p.m., New York
City time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the each such Lender; provided that
Swingline Loans shall be made as provided in Section 2.04(a). The
Administrative Agent will make such Loans available to the US Borrower by
promptly crediting the amounts so received, in dollars, to such account or
accounts of the US Borrower designated by the US Borrower in the applicable
Borrowing Request; provided that ABR Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e) shall
be remitted by the Administrative Agent to the Issuing Lender. Each Euro Term
Lender and Euro Revolving Credit Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately
available funds by 12:00 noon, London, England time, to the account of the Euro
Administrative Agent most recently designated by it for such purpose by notice
to the each such Lender; provided that Euro Swingline Loans shall be
made as provided in Section 2.04(b). The Euro Administrative Agent will
make such Loans available to the Euro Borrower by promptly crediting the
amounts so received, in Euros, to such account or accounts of the Euro Borrower
designated by the Euro Borrower in the applicable Borrowing Request; provided
that Euro Swingline Loans made to finance the reimbursement of a Euro LC
Disbursement as provided in Section 2.06(e) shall be remitted by the
Euro Administrative Agent to the Euro Issuing Lender.


 


40

















 


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


 


Section 2.08           Interest Elections  Each Borrowing under the Revolving Credit
Commitments and the Term Loan Commitments may be either a Eurodollar Borrowing
or an ABR Borrowing; Borrowings under the Euro Term Loan Commitments and the
Euro Revolving Loan Commitments may only be Eurocurrency Borrowings.


 


(a)           Each
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing and a Eurocurrency Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request. Thereafter,
(i) with respect to Borrowings under the Revolving Credit Commitment or
the Term Loan Commitment, the US Borrower may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a
Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section, and (ii) with respect to a Eurocurrency Borrowing, the Euro
Borrower may elect Interest Periods therefor, all as provided in this Section. Each
Borrower may elect different options with respect to different portions of its
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall not apply to Swingline Borrowings or Euro Swingline Borrowings,
which may not be converted or continued.


 


(b)           To
make an election pursuant to this Section, the US Borrower or the Euro
Borrower, as applicable, shall notify the Administrative Agent or the Euro
Administrative Agent, respectively, of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if such
Borrower were requesting a Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such 


 


41

















 


telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Administrative Agent or the Euro
Administrative Agent, as applicable, of a written Interest Election Request in
a form approved by the Administrative Agent and signed by the US Borrower or
the Euro Borrower, as applicable.


 


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


 


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


 


(ii)           the
effective date of the election made pursuant to such Interest Election Request,
which shall be a New York Business Day (or, in the case of a Eurocurrency
Borrowing, a TARGET Day that is also a London Business Day);


 


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


 


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


 


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


 


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


 


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


 


42
















 


Section 2.09           Termination
and Reduction of Commitments  The
Term Loan Commitments and the Euro Term Loan Commitments shall terminate at the
5:00 p.m., New York City time, on the Closing Date.


 


(a)           Unless
previously terminated, the Revolving Loan Commitments and the Euro Revolving
Loan Commitments shall terminate on the Revolving Credit Termination Date.


 


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


 


(c)           The
US Borrower shall notify the Administrative Agent of any election to terminate
or reduce the Revolving Loan Commitments under paragraph (b) of this Section at
least three New York Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent shall
advise the Revolving Credit Lenders of the contents thereof. Each notice
delivered by the US Borrower pursuant to this Section shall be irrevocable. Any
termination or reduction of the Revolving Loan Commitments shall be permanent. Each
reduction of the Revolving Loan Commitments shall be made ratably among the
Revolving Credit Lenders in accordance with their respective Revolving Loan
Commitments.


 


(d)           The
Euro Borrower may at any time terminate or from time to time reduce the Euro
Revolving Loan Commitments; provided that (A) each reduction of the Euro
Revolving Loan Commitments shall be in an amount that is an integral multiple
of €1,000,000 and not less than €2,000,000 and (B) the Euro Borrower shall not
terminate or reduce the Euro Loan Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.11, the
Euro Revolving Credit Exposures would exceed the total Euro Revolving Loan
Commitments.


 


(e)           The
Euro Borrower shall notify the Euro Administrative Agent of any election to
terminate or reduce the Euro Revolving Loan Commitments under paragraph (d) of
this Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Euro Administrative
Agent shall advise the Euro Revolving Lenders of the contents thereof. Each
notice delivered by the Euro Borrower pursuant to this Section shall be
irrevocable. Any termination or reduction of the Euro Revolving Loan
Commitments shall be permanent. Each reduction of the Euro Revolving Loan
Commitments shall be made ratably among the Euro Revolving Credit Lenders in
accordance with their respective Euro Revolving Loan Commitments.


 


Section 2.10           Repayment
of Loans; Evidence of Debt  (a) The
US Borrower hereby unconditionally promises to pay (i) to the Administrative
Agent for the account of each 


 


43

















 


Revolving Credit Lender the then unpaid principal amount of each
Revolving Loan on the Revolving Credit Termination Date, and (ii) to the
Swingline Lender the then unpaid principal amount of each Swingline Loan on the
Revolving Credit Termination Date; provided that on each date that a
Revolving Borrowing is made, the US Borrower shall repay all Swingline Loans
then outstanding.


 


(b)           The
US Borrower hereby unconditionally promises to pay to the Administrative Agent
for the account of the Term Lenders principal on the Term Loan in amounts equal
to (i) $4,500,000 on the first anniversary of the Closing Date, (ii) $6,750,000
on the second and third anniversaries of the Closing Date, and (iii) $9,000,000
on the fourth anniversary of the Closing Date, in addition to any other
mandatory payments required under the Loan Documents. If not sooner paid, the
US Borrower shall repay in full the Term Loans on the Term Loan Maturity Date.


 


(c)           The
Euro Borrower hereby unconditionally promises to pay (i) to the Euro
Administrative Agent for the account of each Euro Revolving Credit Lender the
then unpaid principal amount of each Euro Revolving Loan on the Revolving
Credit Termination Date and (ii) to the Euro Swingline Lender, the then unpaid
principal amount of each Euro Swingline Loan on the Revolving Credit
Termination Date; provided that on each date that a Euro Revolving Borrowing is
made, the Euro Borrower shall repay all Euro Swingline Loans then outstanding.


 


(d)           The
Euro Borrower hereby unconditionally promises to pay to the Euro Administrative
Agent for the account of the Euro Term Lenders principal on the Euro Term Loan
in amounts equal to (i) on the first anniversary €1,400,000, (ii) the second
and third anniversaries €2,100,000, and (iii) €2,800,000 on the fourth
anniversary of the Closing Date, in addition to any other mandatory payments
required under the Loan Documents. If not sooner paid, the Euro Borrower shall
repay in full the Euro Term Loans on the Euro Term Loan Maturity Date.


 


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


 


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


 


(g)           The
Euro Administrative Agent shall maintain accounts in which it shall record (i)
the amount of each Loan made under the Euro Revolving Loan Commitments and the
Euro Term Loan Commitments, the Class thereof and the Interest Period
applicable thereto (ii) the amount of any principal or interest due and payable
or to become due and payable from the 


 


44

















 


Euro Borrower to each Euro Revolving Credit Lender and Euro Term Lender
and (iii) the amount of any sum received by the Euro Administrative Agent
hereunder for the account of the Euro Revolving Credit Lenders and the Euro
Term Lenders and each such Lender’s share thereof.


 


(h)           The
entries made in the accounts maintained pursuant to paragraph (e), (f) or (g)
of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein; provided
that the failure of any Lender or any of the Administrative Agents to maintain
such accounts or any error therein shall not in any manner affect the
obligation of each Borrower to repay the respective Loans made to it in
accordance with the terms of this Agreement.


 


(i)            Any
Lender may request that Loans made by it be evidenced by a promissory note. In
such event, the US Borrower or the Euro Borrower, as applicable, shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent or the Euro
Administrative Agent, as applicable. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 10.04) be represented by one or more
promissory notes in such form payable to the order of the payee named therein
(or, if such promissory note is a registered note, to such payee and its
registered assigns).


 


Section 2.11           Prepayment
of Loans  (a) Each Borrower shall
have the right at any time and from time to time to prepay any Borrowing
selected by it in whole or in part, without penalty or premium (other than
breakage costs and similar expenses, if any, due under Section 2.16),
subject to prior notice in accordance with paragraph (d) of this Section.


 


(b)           Following
the end of each fiscal year of the US Borrower, the US Borrower shall prepay
the Term Loans and the Euro Borrower shall prepay the Euro Term Loans in an
aggregate amount (the “Aggregate Excess Cash Flow Amount”) equal to
(i) if the Leverage Ratio for such fiscal year is greater than or equal to
1.25 to 1.0, (x) fifty percent (50%) of Excess Cash Flow for such fiscal
year, minus (y) fifty percent (50%) of any voluntary prepayments of Term
Loans and Euro Term Loans, as applicable, made during such fiscal year pursuant
to paragraph (a) of this Section, and (ii) if the Leverage Ratio for such
fiscal year is greater than or equal to 0.75 to 1.0 but less than 1.25 to 1.0,
(x) twenty-five percent (25%) of Excess Cash Flow for such fiscal year,
minus (y) seventy-five percent (75%) of any voluntary prepayments of Term Loans
and Euro Term Loans, as applicable, made during such fiscal year pursuant to
paragraph (a) of this Section. All payments made pursuant to this Section
2.11(b) shall be paid on or before the earlier of (iii) the receipt by
the Administrative Agent of the annual financial statements delivered pursuant
to Section 5.01(a) with respect to such fiscal year and (iv) 90
days after the end of such fiscal year. No such prepayment shall be required if
the Leverage Ratio for such fiscal year is less than 0.75 to 1.0. The portion
of the Aggregate Excess Cash Flow Amount, if any, that the US Borrower shall
prepay under this Section 2.11(b) in respect of the Term Loans shall
equal (v) the Aggregate Excess Cash Flow Amount for such fiscal year multiplied
by (vi) the fraction, (1) the numerator of which is the outstanding
principal amount of the Term Loans three 
(3) Business Days prior to the date of such prepayment and (2) the
denominator of which is the sum of the outstanding principal amounts 


 


45

















 


of the Term Loans and the Euro Term Loans three (3) Business Days prior
to the date of such prepayment. The portion of the Aggregate Excess Cash Flow
Amount, if any, that the Euro Borrower shall prepay under this Section
2.11(b) in respect of the Euro Term Loans shall equal (x) the Aggregate
Excess Cash Flow Amount for such fiscal year multiplied by (y) the fraction,
(1) the numerator of which is the outstanding principal amount of the Euro Term
Loans three (3) Business Days prior to the date of such prepayment and (2) the
denominator of which is the sum of the outstanding principal amounts of the
Term Loans and the Euro Term Loans three (3) Business Days prior to the date of
such prepayment.


 


(c)           If
any Borrower, or any of its respective Subsidiaries, receives Net Cash Proceeds
from an Asset Sale or a Casualty Event, within ten (10) Business Days of the
receipt of such Net Cash Proceeds, the US Borrower shall give Administrative
Agent written notice (“Reinvestment Notice”) of whether or not any one
or more of it or its Subsidiaries intends to repair, replace or restore the
asset or property or reinvest such Net Cash Proceeds in productive assets or
properties or otherwise in the business or businesses of any one or more of the
Borrowers or their respective Subsidiaries (collectively, the “Reinvestment”).
To the extent the US Borrower has not elected for it or any of its Subsidiaries
to use all such Net Cash Proceeds for Reinvestment, (i) the US Borrower
shall prepay the Term Loans by the amount equal to (x) the amount of any
such Net Cash Proceeds not to be so used multiplied by (y) the fraction,
(1) the numerator of which is the outstanding principal amount of the Term
Loans three (3) Business Days prior to the date of such prepayment and
(2) the denominator of which is the sum of the outstanding principal
amounts of the Term Loans and the Euro Term Loans three (3) Business Days prior
to the date of such prepayment, and (ii) the Euro Borrower shall prepay the
Euro Term Loans by the amount equal to (x) the amount of any such Net Cash
Proceeds not to be so used multiplied by (y) the fraction, (1) the numerator of
which is the outstanding principal amount of the Euro Term Loans three (3)
Business Days prior to the date of such prepayment and (2) the denominator of
which is the sum of the outstanding principal amounts of the Term Loans and the
Euro Term Loans three (3) Business Days prior to the date of such prepayment,
in each case of the immediately preceding clauses (i) and (ii) within ten (10)
Business Days following the date of the Reinvestment Notice. If the US Borrower
has elected for it or any of its Subsidiaries to use any such Net Cash Proceeds
for Reinvestment, within one year following the date of the Reinvestment Notice
(the “Reinvestment Period”), the US Borrower shall provide evidence
reasonably satisfactory to the Administrative Agent that such Reinvestment has
been completed on or before the end of the Reinvestment Period and to the
extent any such Reinvestment has not been so completed, (iii) the
US Borrower shall prepay the Term Loans by the amount equal to (x) the
amount of any such Net Cash Proceeds not so used multiplied by (y) the
fraction, (1) the numerator of which is the outstanding principal amount
of the Term Loans three (3) Business Days prior to the date of such prepayment
and (2) the denominator of which is the sum of the outstanding principal
amounts of the Term Loans and the Euro Term Loans three (3) Business Days prior
to the date of such prepayment, and (iv) the Euro Borrower shall prepay the
Euro Term Loans by the amount equal to (x) the amount of any such Net Cash
Proceeds not to be so used multiplied by (y) the fraction, (1) the numerator of
which is the outstanding principal amount of the Euro Term Loans three (3)
Business Days prior to the date of such prepayment and (2) the denominator of
which is the sum of the outstanding principal amounts of the Term Loans and the
Euro Term Loans three (3) Business Days prior to the date of such prepayment,
in each case of the immediately preceding 


 


46

















 


clauses (iii) and (iv) within ten (10) Business Days following the date
on which the Reinvestment Period ends.


 


(d)           Each
prepayment pursuant to Section 2.11(b) shall be applied to reduce pro
rata all Loans comprising the designated Borrowing being prepaid with any
prepayments of Term Loans or Euro Term Loans applied respectively to reduce the
remaining scheduled principal installments thereof pursuant to Section
2.11(b). Each prepayment of Term Loans pursuant to paragraph (b) or (c) of
this Section, as applicable, shall be applied to reduce pro rata as between the
Term Loans the remaining scheduled principal installments of the Term Loans
pursuant to Section 2.11(b) and if the Term Loans are fully paid then to
the Revolving Loans. Each prepayment of Euro Term Loans pursuant to paragraph
(b) or (c) of this Section, as applicable, shall be applied to reduce pro rata
as between the Euro Term Loans the remaining scheduled principal installments
of the Euro Term Loans pursuant to Section 2.09 and if the Euro Term
Loans are fully paid then to the Euro Revolving Loans. For purposes of
determining the amount of any prepayment of Term Loans and the amount of any
prepayment of Euro Term Loans pursuant to paragraph (b) or (c) of this Section,
as applicable, the applicable fraction used to determine such amounts shall be
calculated by the Administrative Agent in dollars, with the principal amount of
the Euro Term Loans being converted to dollars using the Market Rate of
Exchange three (3) Business Days prior to the date of the applicable prepayment.
For purposes of this Agreement, “Market Rate of Exchange” means the spot
rate of exchange as determined by the Administrative Agent for the purchase of
Euros in the London, England foreign exchange market with dollars at or about
11.00 a.m., London, England time on a particular day for which a Euro amount is
to be converted to a dollar amount hereunder.


 


(e)           The
US Borrower shall notify the Administrative Agent (and, in the case of
prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed
by telecopy) of any prepayment hereunder (i) in the case of prepayment of a
Eurodollar Borrowing, not later than 12:00 noon, New York City time, three (3)
New York Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 12:00 noon, New York City time,
one (1) New York Business Day before the date of prepayment or (iii) in the
case of prepayment of a Swingline Loan, not later than 1:00 p.m., New York City
time, on the date of prepayment.


 


(f)            The
Euro Borrower shall notify the Euro Administrative Agent (and, in the case of
prepayment of a Euro Swingline Loan, the Euro Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of a
Eurocurrency Borrowing, not later than 11:00 a.m., London time, three (3)
London Business Days before the date of prepayment or (ii) in the case of a
Euro Swingline Loan, not later than 11:00 a.m., London time, on the date of
prepayment.


 


(g)           Each
such notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; provided
that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of the Revolving Loan Commitments or Euro
Revolving Loan Commitments as contemplated by Section 2.09, then such
notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.09. Promptly following receipt of any such
notice relating to a Revolving Borrowing, the Administrative Agent shall advise
the Revolving Credit 


 


47

















 


Lenders of the contents thereof. Promptly following receipt of any such
notice relating to a Euro Revolving Borrowing, the Euro Administrative Agent
shall advise the Euro Revolving Credit Lenders of the content thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided
in Section 2.02. Prepayments shall be accompanied by accrued interest to
the extent required by Section 2.13.


 


Section 2.12           Fees  (a) The US Borrower shall pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commitment fee, which shall accrue at the Commitment Fee Rate on the daily
amount of the unused Revolving Loan Commitment of such Revolving Credit Lender
during the period from and including the Closing Date to but excluding the date
on which such Revolving Loan Commitment terminates. Accrued commitment fees
shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Revolving Loan Commitments
terminate, commencing on the first such date to occur after the date hereof. All
commitment fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).


 


(b)           The
US Borrower shall pay (i) to the Administrative Agent for the account of each
Revolving Credit Lender a participation fee with respect to its participations
in Letters of Credit, which shall accrue at the same Applicable Margin used to
determine the interest rate applicable to Eurodollar Loans on the average daily
amount of such Revolving Credit Lender’s LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period from
and including the Effective Date to but excluding the later of the date on
which such Revolving Credit Lender’s Revolving Loan Commitment terminates and
the date on which it ceases to have any LC Exposure and (ii) to the Issuing
Lender a fronting fee, which shall accrue at the rate of 0.125% per annum on
the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date of
termination of the Revolving Loan Commitments and the date on which there
ceases to be any LC Exposure, but in no event less than $500 during such period
as well as the Issuing Lender’s standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees accrued through and including
the last day of March, June, September and December of each year shall be
payable on the third Business Day following such last day of such months,
commencing on the first such date to occur after the Effective Date; provided
that all such fees shall be payable on the date on which the Revolving Loan
Commitments terminate and any such fees accruing after the date on which the
Revolving Loan Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Lender pursuant to this paragraph shall be payable
within 10 days after demand. All participation fees and fronting fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).


 


(c)           The
Euro Borrower shall pay to the Euro Administrative Agent for the account of
each Euro Revolving Credit Lender a commitment fee, which shall accrue at the
Commitment Fee Rate on the daily amount of the unused Euro Revolving Loan
Commitment of such Euro Revolving Credit Lender during the period from and
including the Closing Date to but 


 


48

















 


excluding the date on which such Euro Revolving Loan Commitment
terminates. Accrued commitment fees shall be payable in arrears on the last day
of March, June, September and December of each year and on the date on which
the Euro Revolving Loan Commitments terminate, commencing on the first such
date to occur after the date hereof. All commitment fees shall be computed on
the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).


 


(d)           The
Euro Borrower shall pay (i) to the Euro Administrative Agent for the account of
each Euro Revolving Credit Lender a participation fee with respect to its
participations in Euro Letters of Credit, which shall accrue at the same
Applicable Margin used to determine the interest rate applicable to
Eurocurrency Loans on the average daily amount of such Euro Revolving Credit
Lender’s Euro LC Exposure (excluding any portion thereof attributable to unreimbursed
Euro LC Disbursements) during the period from and including the Effective Date
to but excluding the later of the date on which such Euro Revolving Credit
Lender’s Euro Revolving Loan Commitment terminates and the date on which it
ceases to have any Euro LC Exposure and (ii) to the Euro Issuing Lender a
fronting fee, which shall accrue at the rate of 0.125% per annum on the average
daily amount of the Euro LC Exposure (excluding any portion thereof
attributable to unreimbursed Euro LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date of
termination of the Euro Revolving Loan Commitments and the date on which there
ceases to be any Euro LC Exposure, but in no event less than $500 during such
period as well as the Euro Issuing Lender’s standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Participation fees and fronting fees accrued through
and including the last day of March, June, September and December of each year
shall be payable on the third Business Day following such last day of such
months, commencing on the first such date to occur after the Effective Date; provided
that all such fees shall be payable on the date on which the Euro Revolving
Loan Commitments terminate and any such fees accruing after the date on which
the Euro Revolving Loan Commitments terminate shall be payable on demand. Any
other fees payable to the Euro Issuing Lender pursuant to this paragraph shall
be payable within 10 days after demand. All participation fees and fronting
fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding
the last day).


 


(e)           Each
Borrower shall pay to the Administrative Agents as applicable, for its own
account, fees payable by it in the amounts and at the times specified in the
Fee Letter, or otherwise separately agreed upon, between the Borrowers and the
Administrative Agents.


 


(f)            All
fees payable hereunder to the Administrative Agent, or the Issuing Lender shall
be paid on the dates due, in immediately available funds, to the Administrative
Agent (or to the Issuing Lender, in the case of fees payable to it) for
distribution, in the case of commitment fees and participation fees, to the
Revolving Credit Lenders. All fees payable hereunder to the Euro Administrative
Agent or the Euro Issuing Lender shall be paid on the dates due, in immediately
available funds, to the Euro Administrative Agent (or to the Euro issuing
Lender, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Euro Revolving Credit Lenders. Fees
paid shall not be refundable under any circumstances absent manifest error.


 


49

















 


Section 2.13           Interest  (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate plus the Applicable Margin.


 


(b)           The
Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted
LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Margin.


 


(c)           The
Loans comprising each Eurocurrency Borrowing shall bear interest at the
Eurocurrency Rate plus the Applicable Margin, plus the Mandatory Cost, if any.


 


(d)           Each
Swingline Loan shall bear interest at the Swingline Rate, and each Euro
Swingline Loan shall bear interest at the Euro Swingline Rate.


 


(e)           Notwithstanding
the foregoing, if any principal of or interest on any Loan or any fee or other
amount payable by either Borrower hereunder is not paid when due, such overdue
amount shall bear interest at the Default Rate.


 


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


 


(g)           All
interest hereunder shall be computed on the basis of a year of 360 days, except
that interest computed by reference to the Alternate Base Rate at times when
the Alternate Base Rate is based on the Prime Rate shall be computed on the
basis of a year of 365 days (or 366 days in a leap year), and in each case
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO
Rate, LIBO Rate or Eurocurrency Rate shall be determined by the Administrative
Agent or the Euro Administrative Agent, as applicable, and such determination
shall be conclusive absent manifest error.


 


Section 2.14           Alternate
Rate of Interest  If prior to the
commencement of any Interest Period for a Eurodollar Borrowing or Eurocurrency
Borrowing:


 


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


 


(b)           in
the case of Eurodollar Borrowings only, the Administrative Agent is advised by
the Lenders having Revolving Credit Exposure, Term Loans and unused Revolving
Loan Commitments and Term Loan Commitments representing more than 50% of the
sum of the 


 


50

















 


total Revolving Credit Exposures, Term Loans and such unused
Commitments at such time that the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period will not adequately and fairly reflect the
cost to such Lenders of making or maintaining their Loans included in such
Borrowing for such Interest Period;


 


then the Administrative Agent or the Euro
Administrative Agent, as applicable, shall give notice thereof to the US
Borrower or the Euro Borrower, as applicable, and the Revolving Credit Lenders
and the Term Lenders or the Eurocurrency Lenders, as applicable, by telephone
or telecopy as promptly as practicable thereafter and, until the Administrative
Agent or the Euro Administrative Agent, as applicable, notifies the US Borrower
and such Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of
any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing
shall be ineffective, (ii) if any Borrowing Request requests a Eurodollar Borrowing,
such Borrowing shall be made as an ABR Borrowing and (iii) if any Borrowing
Request requests a Eurocurrency Borrowing, such request shall be deemed to be
withdrawn.


 


Section 2.15           Increased
Costs  (a) If any Change in Law
shall:


 


(i)            impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO
Rate or the Mandatory Cost) or the Issuing Lender or Euro Issuing Lender; or


 


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


 


and the result of any of the foregoing shall be to
increase the cost (other than with respect to Taxes, which shall be governed
solely by Section 2.17) to such Lender of making or maintaining any
Eurodollar Loan or Eurocurrency Loan (or of maintaining its obligation to make
any such Loan) or to increase the cost to such Lender or the Issuing Lender or
Euro Issuing Lender of participating in, issuing or maintaining any Letter of
Credit or Euro Letter of Credit or to reduce the amount of any sum received or
receivable by such Lender or the Issuing Lender or Euro Issuing Lender
hereunder (whether of principal, interest or otherwise), then the US Borrower
will pay to any such Revolving Credit Lender, Term Lender or the Issuing Lender
and the Euro Borrower will pay to any such Euro Revolving Credit Lender, Euro
Term Lender or the Euro Issuing Lender, as applicable, such additional amount
or amounts as will compensate such Lender or the Issuing Lender or the Euro
Issuing Lender, as applicable, for such additional costs incurred or reduction
suffered.


 


(b)           If
any Lender, the Issuing Lender or the Euro Issuing Lender determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender’s or the Issuing Lender’s or the
Euro Issuing Lender’s capital or on the capital of such Lender’s or the Issuing
Lender’s or the Euro Issuing Lender’s holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
or Euro Letters of Credit held by, such Lender, or the Letters of Credit issued



 


51

















 


by the Issuing Lender, or the Euro Letters of Credit issued by the Euro
Issuing Lender, to a level below that which such Lender or the Issuing Lender
or the Euro Issuing Lender or such Lender’s or the Issuing Lender’s or the Euro
Issuing Lender’s holding company could have achieved but for such Change in Law
(taking into consideration such Lender’s or the Issuing Lender’s or the Euro
Issuing Lender’s policies and the policies of such Lender’s or the Issuing
Lender’s or the Euro Issuing Lender’s holding company with respect to capital
adequacy), then from time to time the US Borrower will pay to any such
Revolving Credit Lender, Term Lender or the Issuing Lender and the Euro
Borrower will pay to such Euro Revolving Credit Lender, Euro Term Lender or the
Euro Issuing Lender, as applicable, such additional amount or amounts as will
compensate such Lender or the Issuing Lender or the Euro Issuing Lender or such
Lender’s or the Issuing Lender’s or the Euro Issuing Lender’s holding company
for any such reduction suffered.


 


(c)           A
certificate of a Lender or the Issuing Lender or the Euro Issuing Lender
setting forth in reasonable detail the amount or amounts necessary to
compensate such Lender or the Issuing Lender or the Euro Issuing Lender or its
holding company, as applicable, as specified in paragraph (a) or (b) of this
Section (subject to paragraph (e) of this Section) shall be delivered to the US
Borrower or the Euro Borrower, as applicable, and shall be conclusive absent
manifest error. The US Borrower shall pay any such Revolving Credit Lender,
Term Lender or the Issuing Lender and the Euro Borrower shall pay any Euro
Revolving Credit Lender, Euro Term Lender or Euro Issuing Lender, as
applicable, the amount shown as due on any such certificate within 10 Business
Days after receipt thereof.


 


(d)           Failure
or delay on the part of any Lender or the Issuing Lender or the Euro Issuing
Lender to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender’s or the Issuing Lender’s or the Euro Issuing Lender’s
right to demand such compensation; provided that no Borrower shall be
required to compensate a Lender or the Issuing Lender or the Euro Issuing
Lender pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or the Issuing Lender or
the Euro Issuing Lender, as applicable, notifies such Borrower of the Change in
Law giving rise to such increased costs or reductions and of such Lender’s or
the Issuing Lender’s or the Euro Issuing Lender’s intention to claim
compensation therefor; provided, further, that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
180-day period referred to above shall be extended to include the period of
retroactive effect thereof; provided, further, that no Lender shall seek
compensation from either Borrower unless such Lender is actively seeking
compensation from other similarly situated borrowers as well.


 


(e)           Notwithstanding
anything to the contrary under paragraphs (a) and (b) of this Section, neither
paragraph (a) nor paragraph (b) of this Section shall apply to the extent the
amount or amounts necessary to compensate such Lender or the Issuing Lender or
the Euro Issuing Lender or its holding company, as applicable, as specified in
paragraph (a) or (b) of this Section is (i) a Tax on the overall net
income of a Lender or any of its Affiliates, (ii) attributable to the
gross negligence of a Lender or its Affiliate that results in its failing to comply
with any Law, (iii) attributable to any deduction or withholding for or on
account of Tax from a payment under any Loan Document required by law to be
made by any Obligor, (iv) any Tax or any amount relating to Taxes, (v)
compensated for by the payment of Mandatory Cost, or (vi) incurred as a
direct or indirect consequence of the recommendations by 


 


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the Basel Committee on Banking Supervision (also known as the “Basel II”
or the “New Accord”) or their implementation or both.


 


Section 2.16           Break
Funding Payments  In the event of (a)
the payment of any principal of any Eurodollar Loan or any Eurocurrency Loan
other than on the last day of an Interest Period applicable thereto (including
as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
or any Eurocurrency Loan other than on the last day of the Interest Period
applicable thereto or (c)the failure to borrow, convert, continue or prepay any
Eurodollar Loan or any Eurocurrency Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.11(g) and is revoked in accordance therewith), then, in
any such event, the Borrowers shall compensate each Lender, as applicable, for
the loss, cost and expense (other than any lost profit or margin) attributable
to such event. In the case of a Eurodollar Loan or a Eurocurrency Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount
reasonably determined by such Lender to be the excess, if any, of (i) its
costs of obtaining funds for the Loan being paid, prepaid or converted or not
borrowed (based on the Adjusted LIBO Rate or the Eurocurrency Rate that would
have been applicable to such Loan, for the period from the date of such event
to the last day of the then current Interest Period therefor (or, in the case
of a failure to borrow, convert or continue, for the period that would have
been the Interest Period for such Loan), over (ii) the amount of interest that
would accrue on such principal amount for such period at the interest rate that
such Lender would realize by such Lender in reemploying during such period the
funds so paid, prepaid, converted or not borrowed. A certificate of any Lender
setting forth in reasonable detail any amount or amounts that such Lender is
entitled to receive pursuant to this Section shall be delivered to the
US Borrower and shall be conclusive absent manifest error. The US Borrower
shall pay any such Revolving Credit Lender, Term Lender or the Issuing Lender
and the Euro Borrower shall pay such Euro Term Lender, as applicable, the
amount shown as due on any such certificate within 10 Business Days after
receipt thereof. No Borrower shall be obligated to compensate a Lender pursuant
to this Section for any amount relating to any such event occurring more than
180 days prior to the date such Lender notifies the US Borrower of such Lender’s
intention to claim compensation therefor


 


Section 2.17           Taxes  (a) Any and all payments by or on account
of any obligation of any Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if
such Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agents, any
Lender, the Issuing Lender or the Euro Issuing Lender (as applicable) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) such Borrower shall make such deductions and (iii) such Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable Law.


 


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


 


(c)           The
Borrowers shall indemnify the Administrative Agents, each Lender, the Issuing
Lender and the Euro Issuing Lender, within 10 days after written demand
therefor, for 


 


53

















 


the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agents, such Lender, the Issuing Lender or the Euro Issuing
Lender, as applicable, on or with respect to any payment by or on account of
any obligation of the Borrowers hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this Section
2.17) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority; provided that the Euro Borrower shall have no liability under
this Section 2.17(c) with respect to Indemnified Taxes or Other Taxes
attributable to any Loan made to or other Obligation of the US Borrower. A
certificate as to the amount of such payment or liability delivered to the
Borrower by such Lender, Issuing Lender or Euro Issuing Lender, or by the
relevant Administrative Agents on its own behalf or on behalf of such Lender,
Issuing Lender or Euro Issuing Lender, shall be conclusive absent manifest
error.


 


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


 


(e)           Any
Lender, the Issuing Lender or the Euro Issuing Lender, if requested by the US
Borrower, Euro Borrower or Administrative Agent, shall deliver documentation
prescribed by applicable law or reasonably requested by such Borrower or the
Administrative Agent as will enable such Borrower or the Administrative Agent
to determine whether or not such Lender, the Issuing Lender or the Euro Issuing
Lender is subject to withholding, backup withholding or information reporting
requirements. Without limiting the generality of the foregoing, each Lender or
Issuing Lender (other than a Foreign Lender) shall deliver to the US Borrower
and the Administrative Agent two (2) duly completed copies of U.S. Internal
Revenue Service Form W-9 (or other evidence of an exemption from withholding
and backup withholding acceptable to the US Borrower and the Administrative
Agent) on or prior to the date on which such Person becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the
US Borrower or Administrative Agent), and each Foreign Lender shall deliver to
the US Borrower and the Administrative Agent (in such number of copies as is
specified below or as shall be required by the US Borrower and the
Administrative Agent) on or prior to the date on which such Foreign Lender
becomes a Lender or a participant under this Agreement (and from time to time
thereafter upon the reasonable request of the US Borrower or the Administrative
Agent), whichever of the following is applicable to enable the US Borrower and
the Administrative Agent to make all payments required under the Loan Documents
without deduction or withholding in respect of Tax or, in the case of a Foreign
Lender to whom payments under the Loan Documents are not eligible for a
complete exemption, at a reduced rate of deduction or withholding in respect of
Tax:  (i) two (2) duly completed copies
of U.S. Internal Revenue Service Form W-8BEN, certifying its eligibility for
benefits of an income tax treaty to which the United States is a party, (ii)
two (2) duly completed copies of U.S. Internal Revenue Service Form W-8ECI,
certifying that it is entitled to receive all payments under the Loan Documents
without deduction or withholding in respect of U.S. federal withholding tax,
(iii) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under section 871(h) or 881(c) of the Code, (x) a 


 


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certificate to the effect that such Foreign Lender is not (A) a “bank”
within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent
shareholder” of the US Borrower, within the meaning of section 881(c)(3)(B) of
the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) two (2) duly completed copies of U.S. Internal
Revenue Service Form W-8BEN, or (iv) two (2) duly completed copies of U.S.
Internal Revenue Service Form W-8IMY (together with forms listed under clauses
(i) through (iii) hereof, as may be required) or (v) any other form prescribed
by applicable law as a basis for claiming exemption from or, if a complete
exemption is not available, a reduction in U.S. federal withholding tax and
reasonably requested by the US Borrower or Administrative Agent duly completed
together with such supplementary documentation as may be prescribed by
applicable law and reasonably requested by the US Borrower or Administrative
Agent to permit such Person to determine the withholding or deduction required
to be made. In each case, if a specified form is no longer in use, the delivery
obligation specified in this Section 2.17(e) shall apply to the
applicable successor form. In addition, the request of the US Borrower or the
Euro Borrower, each Lender and any participant shall deliver such forms
promptly upon the obsolescence, expiration or invalidity of any form previously
delivered by such Lender or participant.


 


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


 


Section 2.18           Payments
Generally; Pro Rata Treatment; Sharing of Set-offs; Sharing of Collateral Proceeds
and Payments After Default  (a) The
US Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest, fees or reimbursement of LC Disbursements, or
of amounts payable under Section 2.15, Section 2.16 or Section
2.17, or otherwise) prior to 1:00 p.m., New York City time, on the date
when due, in immediately available funds, without set-off or counterclaim. The
Euro Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest, fees or reimbursement of Euro LC
Disbursements, or of amounts payable under Section 2.15,  Section 2.16
or Section 2.17, or otherwise) prior to 1:00 p.m., London, England time,
on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such times on any 


 


55

















 


date may, in the discretion of the Administrative Agent in the case of
payments by the US Borrower or the Euro Administrative Agent in the case of
payments by the Euro Borrower, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such
payments by the US Borrower with respect to the Revolving Credit Loans and the Term
Loans shall be denominated in dollars and shall be made to the Administrative
Agent at its offices at 270 Park Avenue, New York, New York, except payments to
be made directly to the Issuing Lender or Swingline Lender as expressly
provided herein and except that payments pursuant to Section 2.15, Section
2.16, Section 2.17 and Section 10.03 shall be made directly
to the Persons entitled thereto. All such payments by the Euro Borrower with
respect to the Euro Revolving Credit Loans and the Euro Term Loans shall be
denominated in Euros and shall be made to the Euro Administrative Agent at the place designated by the Euro
Administrative Agent in its notice therefore except payments to be made
directly to the Euro Issuing Lender or Euro Swingline Lender as expressly
provided herein and except that payments pursuant to Section 2.15,  Section
2.16, Section 2.17 or Section 10.03 shall be made directly to
the persons entitled thereto. Each of the Administrative Agent and the Euro
Administrative Agent, as applicable, shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.


 


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


 


(c)           Subject
to the provisions of Section 2.18(d), if any Lender shall, by exercising
any right of set-off or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of its Loans or participations in LC
Disbursements, Euro LC Disbursements, Swingline Loans or Euro Swingline Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and participations in LC Disbursements. Euro LC
Disbursements, Swingline Loans and Euro Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender 


 


56

















 


receiving such greater proportion shall purchase (for cash at face
value) participations in the Loans and participations in LC Disbursements, Euro
LC Disbursements, Swingline Loans and Euro Swingline Loans of other Lenders to
the extent necessary so that the benefit of all such payments shall be shared
by (i) the Revolving Credit Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Revolving
Credit Loans and participations in LC Disbursements and Swingline Loans, (ii)
Term Lenders ratably in accordance with the aggregate amount of principal and
accrued interest on their respective Term Loans, (iii) the Euro Revolving
Credit Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Euro Revolving Loans, and (iv) Euro
Term Lenders ratably in accordance with the aggregate amount of principal and
accrued interest on their respective Euro Term Loans; provided that (x)
if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (y) the provisions of this paragraph shall not be construed to apply to any
payment made by any Obligor pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements or Euro LC Disbursements to any assignee or
Participant, other than to either Borrower or any Affiliate thereof (as to
which the provisions of this paragraph shall apply). Each Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable Law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.


 


(d)           Following
acceleration of the Loans pursuant to this Agreement, if at any time any
payment on any of the Loans or any receipt of proceeds from any collateral
results in the Revolving Credit Lenders, the Term Lenders, the Euro Revolving
Credit Lenders or Euro Term Lenders receiving payments or proceeds in excess of
their Class Percentage (defined below) of all such payments or proceeds
received, such Lenders will deliver any excess to the Administrative Agent and
the Administrative Agent shall redistribute such excess to the extent required
such that each category of the Revolving Credit Lenders, the Term Lenders, the
Euro Term Lenders and the Euro Revolving Credit Lenders shall receive their
Class Percentage of such payment or proceeds. All payments to the
Administrative Agent shall be made in dollars. As used herein, the term “Class
Percentage” for each category of the Revolving Credit Lenders, Term
Lenders, Euro Term Lenders and the Euro Revolving Credit Lenders shall mean the
percentage, expressed as a decimal and determined by dividing the total
Obligations, including obligations under Swap Agreements with such Lenders,
outstanding for each category of the Revolving Credit Lenders, the Term
Lenders, the Euro Term Lenders or the Euro Revolving Credit Lenders by the
aggregate total Obligations, including obligations under Swap Agreements with
all Lenders, outstanding after giving effect to such payment or receipt of
proceeds, all as calculated by the Administrative Agent whose calculation shall
be conclusive absent manifest error. For purposes of calculating the Class
Percentage, all payments, proceeds and Loan amounts shall be deemed to be in
dollars, with any necessary conversions being made at the rates determined by
the Administrative Agent on the date of any receipt of funds. For purposes of
determining the amount of any payment to be made to the Administrative Agent in
dollars under this paragraph from any Euro Revolving Credit Lender or Euro Term
Lender, the 


 


57

















 


amount in dollars payable in respect of any Eurocurrency Loan shall be
converted to dollars at the rates determined by the Administrative Agent on
receipt of funds.


 


(e)           Unless
the Administrative Agent shall have received notice from the US Borrower prior
to the date on which any payment is due to the Administrative Agent for the
account of the Revolving Credit Lenders, the Term Lenders or the Issuing Lender
hereunder that the US Borrower will not make such payment or the Euro
Administrative Agent shall have received notice from the Euro Borrower prior to
the date on which any payment is due to the Euro Administrative Agent for the
account of the Euro Revolving Credit Lenders, the Euro Term Lenders or the Euro
Issuing Lender hereunder that the Euro Borrower will not make such payment, the
Administrative Agent or the Euro Administrative Agent, as applicable, may
assume that the US Borrower or the Euro Borrower, as applicable, has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Revolving Credit Lenders, the Term Lenders, the
Euro Revolving Credit Lenders, the Euro Term Lenders, the Issuing Lender or the
Euro Issuing Lender, as applicable, the amount due. In such event, if the US
Borrower or the Euro Borrower, as applicable, has not in fact made such
payment, then each of the Revolving Credit Lenders, the Term Lenders, the Euro
Revolving Credit Lenders, the Euro Term Lenders, the Issuing Lender, or the
Euro Issuing Lender that has received such amounts, as applicable, severally
agrees to repay to the Administrative Agent or the Euro Administrative Agent,
as applicable, forthwith on demand the amount so distributed to such Lender or
Issuing Lender or Euro Issuing Lender with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent or the Euro Administrative Agent,
as applicable, at the greater of (i) the Federal Funds Effective Rate with
respect to amounts paid on the Revolving Credit Loans or the Term Loans or the
Eurocurrency Rate with respect to amounts paid on the Euro Revolving Loans or
the Euro Term Loans and (ii) a rate determined by the Administrative Agents in
accordance with banking industry rules on interbank compensation.


 


(f)            If
any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(a)(iii) or Section 2.04(b)(iii), Section 2.05(d) or Section
2.05(e), Section 2.06(d) or Section 2.06(e), Section 2.07(b), Section 2.18(e)
or Section 10.03(c), then the Administrative Agent or the Euro Administrative
Agent, as applicable, may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by it for the account
of such Lender to satisfy such Lender’s obligations under such Sections until
all such unsatisfied obligations are fully paid.


 


Section 2.19           Mitigation
Obligations; Replacement of Lenders  (a)
If any Lender requests compensation under Section 2.15 or Section
2.17, or if the US Borrower or the Euro Borrower, as applicable, is required
to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 2.17, then such Lender
shall cooperate in completing any procedural formalities required for each of
the Borrowers to be able to make payments under the Loan Documents without any
deduction or withholding in respect of Indemnified Taxes or Other Taxes and
shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or Affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would eliminate or
reduce amounts 


 


58

















 


payable pursuant to `Section 2.15 or Section 2.17, as
applicable, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The US Borrower shall pay all reasonable costs and expenses incurred by
any Revolving Credit Lender or Term Lender or the Issuing Lender in connection
with any such designation or assignment. The Euro Borrower shall pay all
reasonable costs and expenses incurred by any Euro Revolving Credit Lender or
Euro Term Lender or the Euro Issuing Lender in connection with any such
designation or assignment.


 


(b)           If
any Lender requests compensation under Section 2.15 or Section 2.17,
or if the US Borrower or the Euro Borrower, as applicable, is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.17, or if any Lender
defaults in its obligation to fund Loans hereunder, then the US Borrower or the
Euro Borrower, as applicable, may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 10.04), all its interests, rights and obligations
under this Agreement to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (i) the US Borrower or the Euro Borrower, as applicable, shall have
received the prior written consent of the Administrative Agent or the Euro
Administrative Agent, as applicable, which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans and participations in LC Disbursements
and Swingline Loans or Euro LC Disbursements and Euro Swingline Loans, as
applicable, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, as applicable, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the US Borrower or the
Euro Borrower, as applicable (in the case of all other amounts) and (iii) in
the case of any such assignment resulting from a claim for compensation under Section
2.15 or payments required to be made pursuant to Section 2.17, such
assignment will or is expected to result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the US Borrower or the Euro Borrower, as
applicable, to require such assignment and delegation cease to apply.


 


ARTICLE III


 


Representations and Warranties


 


The Borrowers for themselves and their respective
Subsidiaries represent and warrant to the Administrative Agents and the Lenders
that:


 


Section 3.01           Organization  Except as set forth on Schedule 3.01
each Obligor and its respective Subsidiaries (with respect to any Foreign
Obligor or Foreign Subsidiary, only to the extent applicable) (i) is duly
organized, validly existing and, with respect to each Obligor other than any
Foreign Subsidiary in good standing under the Laws of the jurisdiction of its
organization, (ii) has the requisite power and authority to conduct its
business as it is presently being conducted, and (iii) is duly qualified or
licensed to conduct business and is in good 


 


59

















 


standing in each jurisdiction where such qualification or good standing
is required, except where the failure to so qualify or be in good standing
could not reasonably be expected to result in a Material Adverse Effect.


 


Section 3.02           Authority
Relative to this Agreement  Each
Obligor has the power and authority to execute and deliver this Agreement and
the other Loan Documents to which it is a party and to perform its obligations
hereunder and thereunder. The Transactions have been duly authorized by all
necessary corporate or other entity action, as applicable, on the part of each
Obligor that is a party hereto or thereto. This Agreement and the other Loan
Documents have been duly and validly executed and delivered by each Obligor
party hereto or thereto and constitute the legal, valid and binding obligations
of such Obligor, enforceable against such Obligor in accordance with their
respective terms, subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or other Laws affecting creditors’
rights and remedies generally and to the effect of general principles of equity
(regardless of whether enforcement is considered in a proceeding at Law or in
equity).


 


Section 3.03           No
Violation  Except as set forth on Schedule
3.03, neither the Transactions nor the Acquisition will:


 


(a)           result
in a breach of the articles or certificate of incorporation, bylaws,
partnership agreement, limited liability company agreement or other
organization documents, as applicable, of any Obligor or any of its respective
Subsidiaries;


 


(b)           result
in the imposition of any Lien on any asset of any Obligor or any of its
respective Subsidiaries (including the Equity Interests of any of the
Subsidiaries of the Borrowers), other than the Liens created under the Loan
Documents;


 


(c)           result
in, or constitute an event that, with the passage of time or giving of notice
or both, would be, a breach, violation or default (or give rise to any right of
termination, cancellation, prepayment or acceleration) under (i) any agreement
to which any Obligor or any of its respective Subsidiaries is a party, under
which any Obligor or any of its respective Subsidiaries has or may acquire
rights or obligations or by which its respective properties or assets may be
bound or (ii) any Governmental Approval held by, or required for the conduct of
the business of, any Obligor or any of its respective Subsidiaries, in each
case of (i) and (ii) above, where such breach, violation or default could
reasonably be expected to result in a Material Adverse Effect;


 


(d)           require
any Obligor or any of its respective Subsidiaries to obtain any consent,
waiver, approval, exemption, authorization or other action of, or make any
filing with or give any notice to, any Person except (i) such as have been
obtained or made and are in full force and effect or waived, (ii) filings
necessary to perfect or assign Liens created under the Loan Documents or (iii)
filing of this Agreement and one or more other Loan Documents with the
Securities and Exchange Commission on the appropriate form; or


 


(e)           violate
any Law or Order applicable to any Obligor or any of its respective
Subsidiaries or by which any of their respective properties or assets may be
bound, where such violation could reasonably be expected to result in a
Material Adverse Effect.


 


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Section 3.04           Financial
Statements  The US Borrower has
previously furnished to the Administrative Agent the following financial
statements (collectively, the “Financial Statements”):  (i) the audited consolidated balance sheet of
the US Borrower as of December 31, 2006,  and
the related consolidated statements of operations, stockholders’ equity and
cash flows for the fiscal year then ended, the notes accompanying such
Financial Statements, and the report of Ernst & Young LLP, independent
certified public accountants, and (ii) the unaudited consolidated balance sheet
of the US Borrower as of September 30, 2007, and the related statements of
operations, stockholders’ equity and cash flows for the period then ended. The
Financial Statements fairly present in all material respects the consolidated
financial position of the US Borrower as of their respective dates and the
consolidated results of operations and cash flows of the US Borrower for the
periods ended on such dates in accordance with GAAP, subject, in the case of
interim financial statements, to absence of footnotes and year-end audit
adjustments (the effect of which will not, individually or in the aggregate,
have a Material Adverse Effect). Since December 31, 2006, there has been no
material adverse change in the US Borrower’s consolidated financial position
that could reasonably be expected to result in a Material Adverse Effect.


 


Section 3.05           No
Undisclosed Liabilities  Except as
set forth in Schedule 3.05, none of the Obligors or any of their
respective Subsidiaries has any liabilities or obligations of any nature
(whether known or unknown, and whether absolute, accrued, contingent or
otherwise) except for (i) liabilities or obligations reflected or reserved
against in the financial statements most recently delivered by the US Borrower
pursuant to Section 4.01(g) or Section 5.01, as applicable, (ii)
current liabilities or obligations incurred in the ordinary course of business
since the date of such financial statements, (iii) liabilities or obligations
that are not required to be included in financial statements prepared in
accordance with GAAP, (iv) liabilities or obligations arising under
Governmental Approvals or contracts to which any Obligor or any of its
respective Subsidiaries is a party or otherwise subject, (v) liabilities or
obligations that could not reasonably be expected to result in a Material
Adverse Effect and (vi) other Permitted Indebtedness.


 


Section 3.06           Litigation  Schedule 3.06 briefly describes
each action, suit or proceeding pending before any Governmental Authority or
arbitration panel, or to the knowledge of the Borrowers, threatened, (i) which
seeks to prevent, enjoin or delay any of the Transactions or the Acquisition,
or (ii) against any Obligor or any of its respective Subsidiaries regarding the
business of, or assets owned or used by, any of them as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.


 


Section 3.07           Compliance
with Law  Except as set forth on Schedule
3.07, (i) each Obligor and its respective Subsidiaries is in compliance
with each Law that is applicable to it or to the conduct or operation of its
business or the ownership or use of any of its assets, except where the failure
to be in compliance, either individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect; and
(ii) none of the Obligors or any of their respective Subsidiaries has
received any notice of, nor does either of the Borrowers have knowledge of, the
assertion by any Governmental Authority or other Person of any such failure to
be in compliance.


 


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Section 3.08           Material
Contracts  Schedule 3.08 lists
as of the Closing Date each Material Contract to which any Obligor or any of
its respective Subsidiaries is a party. Except as set forth in Schedule 3.08,
(i) neither of the Borrowers is aware of any pending or threatened termination
or cancellation of any of Material Contract or any notice of any assertion by
any party thereto of any material default thereunder, (ii) none of the Obligors
or any of their respective Subsidiaries nor, to the knowledge of either of the
Borrowers, any other party to a Material Contract is in default of any material
obligation thereunder, and (iii) no other event has occurred and no other
condition exists that, with notice or lapse of time or both, would constitute a
default by any Obligor or any of its respect Subsidiaries or, to either of the
Borrowers’ knowledge, any other party under any Material Contract, in each case
of (i), (ii) and (iii) above, which could reasonably be expected to result in a
Material Adverse Effect.


 


Section 3.09           Properties  Schedule 3.09 lists as of the
Closing Date each interest in (i) real property owned by the US Borrower and
(ii) real property leased or otherwise occupied or used by the US Borrower
as a lessee or licensee. Each of the Obligors and its respective Subsidiaries
owns (with good and marketable title in the case of real property, subject only
to the matters permitted by the following sentence), or has valid leasehold
interests or licenses in, all the properties and assets (whether real,
personal, or mixed and whether tangible or intangible) material to its
respective businesses. All such properties and assets are free and clear of all
Liens, except Permitted Liens, and are not, in the case of real property,
subject to any rights of way, building use restrictions, exceptions, variances,
reservations, or limitations of any nature. All such properties (i) are in good
operating order, condition and repair (ordinary wear and tear excepted), as
applicable, and (ii) constitute all of the property that is required for the
respective business and operations of the Obligors and their respective
Subsidiaries as presently conducted.


 


Section 3.10           Intellectual
Property  (a) Schedule 3.10
lists as of the Closing Date all material patents, patent applications,
registered trademarks, trademark applications, registered trade names,
registered service marks, and registered copyrights (the “Intellectual
Property”) owned by or licensed to the US Borrower or any of its
Subsidiaries (excluding Nobelclad Europe S.A. and Nitro Metall AB and the
Subsidiaries of the Target and DYNAenergetics Beteiligungs GmbH). As of the
date of this Agreement, none of the Intellectual Property owned by or licensed
to any Obligor or its respective Subsidiaries has been declared invalid or is
the subject of a pending or, to the knowledge of the Borrowers, threatened
action for cancellation or a declaration of invalidity, and there is no pending
judicial proceeding involving any claim, and none of the Obligors or any of
their respective Subsidiaries has received any written notice or claim of any
infringement, misuse or misappropriation by any Obligor or any of its
respective Subsidiaries of any Intellectual Property right owned by any third
party, in each case except for any such declaration, cancellation, proceeding,
infringement, misuse or misappropriation which could not reasonable be expected
to result in a Material Adverse Effect.


 


(b)           To
the Borrowers’ knowledge, except as set forth in Schedule 3.10, the
conduct by any of the Obligors or any of their respective Subsidiaries of their
respective businesses as presently conducted does not conflict with, infringe
on, or otherwise violate any copyright, trade secret, or patent rights of any
Person, except where such conflict, infringement or violation could not
reasonably be expected to have a Material Adverse Effect.


 


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Section 3.11           Taxes  All Tax returns and reports of any of
the Obligors and their respective Subsidiaries required to be filed by any of
them have been timely filed, and all Taxes shown on such Tax returns and
reports to be due and payable and all assessments, fees and other governmental
charges upon any of them and upon any of their respective properties, assets,
income, businesses and franchises that are due and payable have been paid when
due and payable except to the extent being actively contested by any of them in
good faith and by appropriate proceedings or, with respect to any Subsidiary
that is not a Wholly Owned Subsidiary, except to the extent any failure to so
file and pay would not result in a Material Adverse Effect; provided
that such reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided therefore. As
of the date of this Agreement, neither Borrower knows of any proposed Tax
assessment against any of the Obligors or any of their respective Subsidiaries
that is not being actively contested by any of them in good faith and by
appropriate proceedings; provided that such reserves or other
appropriate provisions, if any, as shall be required in conformity with GAAP
shall have been made or provided therefor, which assessment could reasonably be
expected to result in a Material Adverse Effect.


 


Section 3.12           Environmental
Compliance  In each case, except to
the extent such condition or event, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect and except as set
forth in Schedule 3.12,


 


(a)           none
of the Obligors or any of their respective Subsidiaries has failed to comply
with any Environmental Law or to obtain, maintain or comply with any
Governmental Approval required under any Environmental Law or has become
subject to any Environmental Liability;


 


(b)           none
of the Obligors or any of their respective Subsidiaries has received any notice
of any claim with respect to any such Environmental Liability and the US
Borrower does not know of any basis for any such Environmental Liability;


 


(c)           none
of the Obligors or any of their respective Subsidiaries has arranged for the
disposal of Hazardous Material at a site listed for investigation or clean-up
by any Governmental Authority or in violation of Law;


 


(d)           there
is no proceeding pending against any of the Obligors or any of their respective
Subsidiaries by any Governmental Authority with respect to the presence on or
release of any Hazardous Material from any real property or facility owned or
operated at any time by any of them or otherwise used in connection with their
respective businesses;


 


(e)           the
US Borrower has no knowledge that any Hazardous Material has been or is
currently being generated, processed, stored or released (or is subject to a
threatened Release) from, on or under any real property or facility owned or
operated by any of the Obligors or any of their respective Subsidiaries, or
otherwise used in connection with their respective businesses in a quantity or
concentration that would require remedial action under any Environmental Law if
reported to or discovered by the relevant Governmental Authority; and


 


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(f)            to
the knowledge of the US Borrower, there has been no underground storage tank
located at any facility owned or operated by any of the Obligors or any of
their respective Subsidiaries at any time.


 


Section 3.13           Labor
Matters  As of the Closing Date,
there are no strikes, lockouts or slowdowns against any of the Obligors or any
of their respective Subsidiaries pending or, to the knowledge of the Borrowers,
threatened. The hours worked by and payments made to employees of the US
Borrower have not been in violation of the Fair Labor Standards Act or any
other Law dealing with such matters. All payments due from any of the Obligors
or any of their respective Subsidiaries, or for which any claim may be made
against any of them, on account of wages and employee health and welfare
insurance and other benefits, have been paid or accrued as a liability on the
books of any of the Obligors or any of their respective Subsidiaries. The
consummation of the Transactions will not give rise to any right of termination
or right of renegotiation on the part of any union under any collective
bargaining agreement to which any of the Obligors or any of their respective
Subsidiaries is bound.


 


Section 3.14           Investment
and Holding Company Status  Neither
the US Borrower nor any of its Subsidiaries is an “investment company” as
defined in, or subject to regulation under, the Investment Company Act of 1940,
as amended.


 


Section 3.15           Insurance  As of the Closing Date, Schedule 3.15
lists all policies or binders of fire, liability, worker’s compensation,
vehicular or other insurance held by or for the benefit of the US Borrower
(specifying the insurer, the policy number or covering note number with respect
to binders). All insurance held by or for the benefit of the any of the
Obligors or any of their respective Subsidiaries is in full force and effect,
is with financially sound and reputable insurers and is in amounts and provides
coverage that are reasonable and customary for Persons engaged in businesses
similar to those conducted by any of the Obligors or any of their respective
Subsidiaries.


 


Section 3.16           Solvency  Immediately after the consummation of
the Transactions and the Acquisition to occur on the Closing Date, and
immediately following the making of each Loan and after giving effect to the
application of the proceeds of each Loan, (a) the fair market value of the
assets of each Obligor will exceed its debts and liabilities; (b) the present
fair saleable value of the property of each Obligor will be greater than the
amount that will be required to pay the probable liability of its debts and
other liabilities; (c) each Obligor will be able to pay its debts and
liabilities as they become absolute and mature; and (d) no Obligor will have
unreasonably small capital with which to conduct its business as such business
is now conducted and is proposed to be conducted following the Closing Date.


 


Section 3.17           ERISA  No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such
ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect.


 


Section 3.18           Disclosure  The Borrowers have disclosed to the
Lenders all factual matters of which the senior executive officers of the
Borrowers have actual knowledge (other than general industry and economic
conditions and legal and regulatory requirements applicable to companies and
businesses similar to the members generally), that, individually or in the 


 


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aggregate, could reasonably be expected to result in a Material Adverse
Effect. Neither the Information Memorandum nor the other reports, financial
statements, certificates or other information furnished by or on behalf of any
Obligor to the Administrative Agents or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contained, as of the date
furnished, any material misstatement of fact or omitted to state any material
fact necessary to make the statements therein, taken as a whole, in the light
of the circumstances under which they were made, not materially misleading; provided
that, with respect to projected financial information, the Borrowers represent
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time (it being understood that no assurance
has been given or will be given that any projected financial information and
other projections and forward-looking information have been or will be
achieved).


 


Section 3.19           Margin
Stock  Except for repurchases of the
US Borrower’s Equity Interests in accordance with the last sentence of this Section
3.19 and Section 5.08 and Section 6.07, no part of any
Borrowing or any Swing Loan shall be used at any time, to purchase or carry
margin stock (within the meaning of Regulation U) or to extend credit to
others for the purpose of purchasing or carrying any margin stock. None of the
Borrowers nor any of their Subsidiaries are engaged principally, or as one of
its important activities, in the business of extending credit for the purposes
of purchasing or carrying any such margin stock. No part of the proceeds of any
Borrowing will be used for any purpose which violates, or which is inconsistent
with, any regulations promulgated by the Board of Governors of the Federal
Reserve System.


 


ARTICLE IV


 


Conditions


 


Section 4.01           Effective
Date  The obligations of the Lenders
to make Loans and of the Issuing Lender to issue Letters of Credit hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 10.02):


 


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


 


(b)           The
Administrative Agent (or its counsel) shall have received each of the Security
Documents from each applicable Obligor and same shall constitute satisfactory
security documentation to create first priority security interests in the
Collateral free and clear of all Liens, other than Permitted Liens.


 


(c)           The
Administrative Agent shall have received such documents and certificates as the
Administrative Agents or their counsel may reasonably request relating to the
organization, existence and, where applicable, good standing of each Obligor,
the authorization of the Transactions and the Acquisition, the authority of
each natural Person executing any of the Loan Documents on behalf of any
Obligor and any other legal matters relating to the Obligors, 


 


65

















 


this Agreement or the Transactions and the Acquisition, all in form and
substance reasonably satisfactory to the Administrative Agents and their
counsel.


 


(d)           Each
Lender requesting a promissory note evidencing Loans made by such Lender shall
have received from the applicable Borrower a promissory note payable to such
Lender in a form approved by the Administrative Agents in their sole
discretion.


 


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


 


(f)            All
material governmental and third party approvals and permits necessary in
connection with the Transactions, the Acquisition and the continued operations
of the Obligors shall have been obtained and be in full force and effect and
copies thereof shall have been provided to Administrative Agent (or its
counsel).


 


(g)           The
Lenders shall have received (i) audited consolidated financial statements of
the US Borrower for the most recent fiscal year of the US Borrower ended
December 31, 2006, (ii) unaudited consolidated financial statements of the
US Borrower for the three-month period ended September 30, 2007 and (iii)
unaudited financial statements of the Target in accordance with German GAAP for
its most recent three (3) fiscal years (with the statements for 2005 and 2006
translated into English) in each case reasonably satisfactory to the
Administrative Agent.


 


(h)           The
Administrative Agent shall have received a favorable written opinion (addressed
to the Administrative Agent and the Lenders and dated the Effective Date) of
(i) Holme Roberts & Owen LLP, counsel for the Borrowers, covering such
matters as the Administrative Agent shall reasonably request, (ii) local
Pennsylvania and Connecticut counsel for the Borrowers, concerning
enforceability and other matters related to the Mortgages and such other
matters as the Administrative Agent shall reasonably request and (iii) French,
Swedish, and German counsel to the Borrowers concerning the authority of
Foreign Subsidiaries of the Borrowers that are Wholly Owned Subsidiaries to
enter into the Transactions and such other matters as the Administrative Agent
shall reasonably request. The Borrower hereby requests such counsels to deliver
such opinions.


 


(i)            The
Administrative Agent shall have received reports of UCC, tax and judgment Lien
searches or other similar searches conducted by a reputable search firm with
respect to each Borrower and its respective Subsidiaries in each location
requested by the Administrative Agents and the information disclosed in such
reports shall be satisfactory to the Administrative Agents.


 


(j)            The
Lenders shall have received details of the legal and capital structure of the
Borrowers which shall be reasonably satisfactory to the Lenders.


 


(k)           All
membership and stock certificates, if any, of each Subsidiary of the US
Borrower described on Annex 3 to the Security Agreements will be delivered
to Administrative Agent together with, as appropriate, related stock and
membership powers executed in blank by the relevant Obligor.


 


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(l)            The
Administrative Agent shall have received evidence satisfactory to the
Administrative Agent that substantially simultaneously with the initial
Borrowing the Indebtedness identified on Schedule 4.01(l) hereto
will be paid in full.


 


(m)          The
US Borrower shall have issued common stock representing not less than 13.5% of
the aggregate purchase price for the Acquisition. The fees and expenses related
to the Acquisition shall not exceed $5,000,000.


 


(n)           The
Arranger shall have reviewed and be reasonably satisfied with the definitive
documents in connection with the Acquisition Agreement.


 


(o)           The
Administrative Agent shall have received satisfactory evidence that the
Acquisition has been, or substantially simultaneously with the initial
Borrowing will be, consummated.


 


(p)           The  Leverage Ratio shall be no greater than 2.0 to 1.00. For purposes of this
paragraph, the Leverage Ratio shall be calculated on a pro forma basis for the
trailing four-quarter period ended September 30, 2007 giving effect to the
Transactions and the Acquisition as if such Transactions and Acquisition were
consummated at the commencement of such four-quarter period.


 


(q)           The
Administrative Agents shall have received a solvency certificate reasonably
satisfactory to it from the chief financial officer of the US Borrower that
shall certify as to the solvency of the Borrowers and their Subsidiaries on a
consolidated basis in accordance with GAAP after giving effect to the
Acquisition and the other transactions contemplated hereby.


 


(r)            The
Administrative Agent shall have received the Phase I environmental reports and
other environmental information in the possession of or available to the US
Borrower and covering the Mortgaged Property listed on Schedule 4.01(r).


 


(s)           A
pro forma of a mortgagee’s policy of title insurance for each of the Mortgaged
Properties in a form promulgated by the American Land Title Association,
insuring the lien of the Mortgages as a valid first lien on the Mortgaged
Property free and clear of all defects and encumbrances except as approved by
Administrative Agent. Each pro forma title policy shall be in the amount
designated by the Administrative Agent and shall contain such endorsements as
required by Administrative Agent.


 


(t)            The
Administrative Agent shall have been provided a copy of any lease agreement
covering the Mortgaged Property held by any of the US Borrower or its Domestic
Subsidiaries.


 


(u)           The
Administrative Agent shall have received a consent agreement executed by the
owner of the leased property described in Section 4.01(t), which
agreement shall be satisfactory in all respects to the Administrative Agent.


 


(v)           The
Administrative Agent shall have received evidence of insurance coverage of each
Borrower and its Subsidiaries satisfying the requirements of Section 5.05(b);
the 


 


67

















 


Administrative Agent shall have been named as an additional insured and
as a mortgagee/loss payee on the liability and casualty insurance policies
covering the Mortgaged Property.


 


(w)          The
Administrative Agent shall have received calculations showing the sources and
uses of funds in connection with the Acquisition and the Loans funded on the
Closing Date.


 


(x)            The
Administrative Agent shall have received all documents and other items that it
may reasonably request relating to any other matters relevant hereto, all in
form and substance reasonably satisfactory to the Administrative Agent.


 


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


 


(a)           The
representations and warranties of each Obligor set forth in this Agreement or
any other Loan Document shall be true and correct in all material respects on
and as of the date of such Borrowing or the date of issuance, amendment,
renewal or extension of such Letter of Credit or Euro Letter of Credit, as
applicable; provided, that to the extent any such representation and
warranty was made as of a specific date, such representation and warranty shall
be true and correct in all material respects as of such specific date.


 


(b)           No
Material Adverse Effect shall have occurred since the date of the most recent
Borrowing.


 


(c)           The
Administrative Agents shall have received a request for a Borrowing as required
by Section 2.03 or the Issuing Lender and the Administrative Agent or
the Euro Issuing Lender and the Euro Administrative Agent, as applicable, shall
have received a request for the issuance of a Letter of Credit or a Euro Letter
of Credit, as applicable, as required by Section 2.05(b) or Section
2.06(b), as applicable.


 


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


 


Each Borrowing and each issuance, amendment, renewal
or extension of a Letter of Credit or Euro Letter of Credit shall be deemed to
constitute a representation and warranty by the relevant Obligors on the date
thereof as to the matters specified in paragraphs (a) and (c) of this Section
4.02.


 


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ARTICLE V


 


Affirmative Covenants


 


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


 


Section 5.01           Financial
Statements and Other Information  The
US Borrower will furnish to the Administrative Agents and each Lender:


 


(a)           within
90 days after the end of each fiscal year of the US Borrower, the audited
consolidated balance sheet and related statements of operations, cash flows and
shareholders’ equity as of the end of and for such year of the US Borrower,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on by independent public accountants of recognized
national standing (without a “going concern” or like qualification or exception
and without any qualification or exception as to the scope of such audit) to
the effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of the US
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;


 


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


 


(c)           concurrently
with any delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer of the US Borrower (i) certifying as to
whether a Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations demonstrating
compliance with Section 6.15 and Section 6.16 and
(iii) stating whether any change in GAAP or in the application thereof has
occurred since the date of the last audited financial statements delivered
pursuant to Section 5.01(a) and, if any such change has occurred, specifying
the effect such change would have on the financial statements accompanying such
certificate;


 


(d)           promptly
after the same become available, copies of all periodic and other reports,
proxy statements and other materials filed by the US Borrower with the
Securities and Exchange Commission, or any Governmental Authority succeeding to
any or all of the functions of said Commission, or with any national securities
exchange, as applicable;


 


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(e)           within
90 days following the commencement of each fiscal year, the US Borrower and its
Subsidiaries operating and capital expenditure budgets and cash flow forecast
for such fiscal year (which shall include a projected combined balance sheet
summary for the US Borrower and its Subsidiaries of the last day of such fiscal
year and the related projected statements of combined income and cash flows for
such fiscal year);


 


(f)            promptly
upon receipt of any complaint, order, citation, notice or other written
communication from any Person with respect to, or upon any Obligor’s obtaining
knowledge of, (i) the existence or alleged existence of a violation of any
applicable Environmental Law or any Environmental Liability in connection with
any property now or previously owned, leased or operated by the Borrowers or
any of their Subsidiaries, (ii) any release of Hazardous Substances on such
property or any part thereof in a quantity that is reportable under any
applicable Environmental Law, and (iii) any pending or threatened proceeding
for the termination, suspension or non-renewal of any permit required under any
applicable Environmental Law, in each case of clauses (i), (ii) and (iii) above
in which there is a reasonable likelihood of an adverse decision or
determination that could reasonably be expected to result in a Material Adverse
Effect, a certificate of an executive officer of the US Borrower, setting forth
the details of such matter and the actions, if any, that such Obligor is
required or proposes to take;


 


(g)           promptly
following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Borrowers or any of
their Subsidiaries, or compliance with the terms of this Agreement, as the
Administrative Agents or any Lender may reasonably request; and


 


(h)           within
90 days after the end of each fiscal year, a report in form and substance
reasonably satisfactory to the Administrative Agent describing all material
insurance coverage maintained by any of the Obligors or any of their respective
Subsidiaries as of the date of such report.


 


Section 5.02           Notices
of Material Events  The US Borrower
will furnish to the Administrative Agents and each Lender prompt written notice
of the following:


 


(a)           the
occurrence of any Default and the action that the Obligors are taking or
propose to take with respect thereto;


 


(b)           the
filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against any Obligor that could reasonably
be expected to result in a Material Adverse Effect or that in any manner
questions the validity of the Loan Documents;


 


(c)           the
occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in a Material
Adverse Effect; and


 


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


 


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


 


Section 5.03           Existence;
Conduct of Business   Each Borrower will, and will cause each of its
respective Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business except to the extent failure to maintain or preserve could not
reasonably be expected to result in a Material Adverse Effect; provided
that the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.04.


 


Section 5.04           Payment
of Obligations  Each Borrower will,
and will cause each of its respective Subsidiaries to, pay when due its
material obligations, including liabilities for Taxes, except where (a) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) it has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse
Effect.


 


Section 5.05           Maintenance
of Properties; Insurance  Each
Borrower will, and will cause each of its respective Subsidiaries to, (a) keep
and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted, and (b) maintain,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar
locations.


 


Section 5.06           Books
and Records; Inspection Rights  Each
Borrower will, and will cause each of its respective Subsidiaries to, keep
proper books of record and account in which in all material respects full, true
and correct entries are made of all dealings and transactions in relation to
its business and activities. Each Borrower will, and will cause each of its
respective Subsidiaries to, permit any representatives designated by the
Administrative Agents, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants (provided a representative of the US Borrower shall have the
right to be present), all at such reasonable times and as often as reasonably
requested; provided, that following the Effective Date and so long as no
Event of Default has occurred and is continuing, the US Borrower shall only be
required to reimburse the Administrative Agents in accordance with Section
10.03 for the cost of one such inspection in any fiscal year.


 


Section 5.07           Compliance
with Laws   Each Borrower will, and will cause each of its
respective Subsidiaries to, comply with all Laws (including Environmental Laws)
and Orders applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.


 


Section 5.08           Use
of Proceeds and Letters of Credit  Each
Borrower covenants and agrees that the proceeds of the Loans it receives will
be used only to (i) finance the Acquisition; 


 


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(ii) to refinance existing indebtedness; (iii) to pay the fees,
expenses and other transaction costs of the Transactions and the Acquisition;
and (iv) to fund working capital needs and general corporate purposes of such
Borrower and its Subsidiaries. Each Borrower covenants and agrees that no part
of the proceeds of any Loan it receives will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations T, U and X. Letters of Credit and Euro
Letters of Credit will be issued only to support the working capital needs and
general corporate obligations of the such Borrower and its Subsidiaries
relating to their respective lines of business as currently conducted.


 


Section 5.09           Additional
Guarantees and Security Documents  If
any additional Wholly Owned Subsidiary of the US Borrower is formed or acquired
after the Effective Date, the US Borrower will promptly notify the
Administrative Agents thereof and


 


(a)           if
such Subsidiary is a Domestic Subsidiary, within 30 days after such Subsidiary
is formed or acquired, the US Borrower shall cause (i) any such Domestic
Subsidiary the assets of which are all or substantially all comprised of stock
or securities in one or more Foreign Subsidiaries to execute a Joinder
Agreement for purposes of such Subsidiary becoming a US Guarantor under Section
9.01(a)(i) hereunder and a party to the relevant Security Documents, which
Security Documents secure the Obligations of the Euro Borrower and deliver to
the Administrative Agent such other documents relating thereto as the
Administrative Agent shall reasonably request, (ii)any such Domestic Subsidiary
the assets of which are not all or substantially all comprised of stock
or securities in one or more Foreign Subsidiaries to execute a Joinder
Agreement for purposes of such Subsidiary becoming a US Guarantor under Section
9.01(a)(ii) hereunder and a party to the relevant Security Documents, which
Security Documents secure the Obligations of the US Borrower and deliver to the
Administrative Agent such other documents relating thereto as the
Administrative Agent shall reasonably request, (iii) the Equity Interests
issued by any such Subsidiary described in clause (a)(i) above representing 65%
of the total combined voting power (within the meaning of Treasury Regulation
Section 1.956-2(c)(2)) of all of the Equity Interests in such Subsidiary to be
pledged to secure the Obligations of the US Borrower and the Obligations of the
Euro Borrower pursuant to the relevant Security Documents and (iv) all of
the Equity Interests issued by any such Subsidiary described in clause (a)(ii)
to be pledged to secure the Obligations of the US Borrower and the Obligations
of the Euro Borrower pursuant to the relevant Security Documents;


 


(b)           if
such Subsidiary is a Foreign Subsidiary that is owned by a Domestic Subsidiary
or by the US Borrower, within 30 days after such Subsidiary is formed or
acquired, the US Borrower shall cause (i) such Subsidiary to execute a
Joinder Agreement for purposes of such Subsidiary becoming a Euro Guarantor
hereunder and deliver to the Euro Administrative Agent such other documents
relating thereto as the Euro Administrative Agent shall reasonably request and
(ii) the Equity Interests issued by such Subsidiary representing 65% of
the total combined voting power (within the meaning of Treasury Regulation
Section 1.956-2(c)(2)) of all of the Equity Interests in such Subsidiary to be
pledged to secure the Obligations of the US Borrower pursuant to the relevant
Security Documents; and


 


(c)           if
such Subsidiary is a Foreign Subsidiary owned by a Foreign Subsidiary or by the
Euro Borrower or any of its Subsidiaries, within 30 days after such Subsidiary
is formed or 


 


72

















 


acquired, the Euro Borrower shall cause (i) such Subsidiary to execute
a Joinder Agreement for purposes of such Subsidiary becoming a Euro Guarantor
hereunder and deliver to the Euro Administrative Agent such other documents
relating thereto as the Euro Administrative Agent shall reasonably request and
(ii) all of the Equity Interests issued by such Subsidiary to be pledged to
secure the Obligations of the Euro Borrower pursuant to the relevant Security
Documents.


 


(d)           The
intent of the Parties under this Agreement is that no Foreign Subsidiary of the
US Borrower, or Domestic Subsidiary all or substantially all of the assets of
which consist of stock or securities in one or more Foreign Subsidiaries, shall
be treated as a pledgor or guarantor with respect to the Loan to any Obligation
of the US Borrower for purposes of Code Section 956(d) and Treasury Regulation
Section 1.956-2(c), and that the provisions of this Agreement shall be
interpreted in a manner consistent with that intent.


 


Section 5.10           Compliance
with ERISA  In addition to and
without limiting the generality of Section 5.07, to the extent
applicable, each Borrower shall, and shall cause each of its respective
Subsidiaries to, (a) comply in all material respects with all applicable
provisions of ERISA and the regulations and published interpretations
thereunder with respect to all employee benefit plans (as defined in ERISA),
(b) not take any action or fail to take action the result of which could be (i)
a liability to the PBGC (other than liability for PBGC premiums) or (ii) a past
due liability to any Multiemployer Plan, (c) not participate in any prohibited
transaction that could result in any material civil penalty under ERISA or any
tax under the Code, (d) operate each employee benefit plan in such a manner
that will not incur any material tax liability under Section 4980B of the Code
or any liability to any qualified beneficiary as defined in Section 4980B of
the Code, in each case of clauses (a), (b), (c) and (d) above, except to the extent
such failure to comply, such not taking such action, such failure to take such
action, such not participating or such operating would not reasonably be
expected to result in a Material Adverse Effect and (e) furnish to the
Administrative Agent upon the Administrative Agent’s request such additional
information about any employee benefit plan as may be reasonably requested by
the Administrative Agent.


 


Section 5.11           Compliance
with Environmental Laws; Environmental Reports  (a) Each Borrower shall, and shall cause each
of its respective Subsidiaries to, (i) comply, and use best efforts to
cause all lessees and other persons occupying real property owned, operated or
leased by any of them to comply, in all material respects with all
Environmental Laws applicable to its operations and real property;
(ii) obtain and renew all material Governmental Approvals required under
Environmental Laws applicable to its operations and real property; and conduct
any Response in accordance with Environmental Laws; provided that no
Borrower or any of its respective Subsidiaries shall be required to undertake
any Response to the extent that its obligation to do so is being contested in
good faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances in accordance with GAAP.


 


(b)           If
a Default caused by reason of a breach of Section 3.12 or Section 5.11(a) shall
have occurred and be continuing for more than 10 days without such Borrower or
its Subsidiaries commencing activities reasonably likely to cure such Default,
at the written request of the Required Lenders through the Administrative
Agent, the US Borrower shall provide to the Lenders within 30 days after such
request, at the expense of the US Borrower, an 


 


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environmental assessment report regarding the matters that are the
subject of such Default, including where appropriate, any soil and/or
groundwater sampling, prepared by an environmental consulting firm and in the
form and substance reasonably acceptable to the Administrative Agent and
indicating the presence or absence of Hazardous Materials and the estimated
cost of any compliance or Response to address them.


 


Section 5.12           Maintain
Business  Except as otherwise permitted
hereunder, each Borrower shall, and shall cause each of its respective
Subsidiaries to, continue to engage primarily in the business or businesses
being conducted on the date of this Agreement and businesses reasonably related
thereto and other reasonable expansions and extensions of such business or
businesses.


 


Section 5.13           Further
Assurances and New Intellectual Property  Each Obligor will, at its own cost and
expense, execute, acknowledge and deliver all such further acts, documents and
assurances as may from time to time be reasonably necessary or as the
Administrative Agents or the Required Lenders may from time to time reasonably
request in order to carry out the intent and purposes of the Loan Documents and
the Transactions, including all such actions to establish, preserve, protect
and perfect the estate, right, title and interest of the Lenders, or the
Administrative Agents for the benefit of the Lenders, to the Collateral
(including Collateral acquired after the date hereof). If any material trademark,
copyright or patent is acquired by the US Borrower or any of its Domestic
Subsidiaries which is a US guarantor pursuant to Section 9.01(a)(ii)
after the Effective Date (other than trademarks, copyrights and patents
constituting Collateral under the Security Documents that become subject to the
Lien of the Security Documents upon acquisition thereof), the US Borrower shall
promptly give notice to the Administrative Agent thereof, and, shall cause such
assets to be subjected to a Lien securing the Obligations of the US Borrower
and the Obligations of the Euro Borrower.


 


Section 5.14           Delivery
of Title Policies  The US Borrower
shall cause originals of the title policies described in Section 4.01(r)
to be delivered to the Administrative Agent no later than thirty (30) days
after the Closing Date.


 


Section 5.15           Post
Closing Joinder  Within thirty (30)
days of the Closing Date, the US Borrower and the Euro Borrower shall cause (i)
DYNAenergetics Beteiligungs GmbH and DYNAenergetics GmbH & Co. KG to execute
Joinder Agreements in accordance with Section 5.09(c) and shall provide
evidence reasonably satisfactory to Administrative Agent that one hundred
percent of the equity issued in both such entities has been registered in the
name of DYNAenergetics Holding GmbH in the share registries of such entities
and (ii) shall cause Nobelclad Europe S.A. and Nitro Metall AB to execute
Joinder Agreements in accordance with Section 5.09(c).


 


ARTICLE VI


 


Negative Covenants


 


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


 


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Section 6.01           Indebtedness  No Borrower will, nor will permit any of its
respective Subsidiaries to, create, incur, assume or permit to exist any
Indebtedness, except:


 


(a)           Indebtedness
created hereunder or under any of the Loan Documents, including renewals,
extensions, refinancings and replacements hereof or thereof;


 


(b)           Indebtedness
set forth in Schedule 6.01 and extensions, renewals, refinancings and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof;


 


(c)           Indebtedness
of any Obligor or any of its respective Subsidiaries incurred to finance the
acquisition, construction or improvement of any assets, including Capital Lease
Obligations, and any Indebtedness assumed in connection with the acquisition of
any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof; provided
that the aggregate principal amount of Indebtedness permitted by this clause
(c) shall not exceed $5,000,000 at any time outstanding;


 


(d)           Indebtedness
owed by any Obligor to any other Obligor and guarantees by any Obligor of the
Indebtedness of any other Obligor;


 


(e)           Indebtedness
owed by any Obligor to any of the Subsidiaries of the US Borrower that is not
an Obligor and guarantees by any such Subsidiary of any Indebtedness of any
Obligor; provided that such Indebtedness is, and subrogation or
reimbursement rights in respect of such guarantees are, subordinated in right
of payment to the Obligations of such Obligor under the Loan Documents on terms
reasonably acceptable to the Administrative Agent;


 


(f)            Indebtedness
owed by any Subsidiary of any Obligor to any Obligor and guarantees of any
Obligor of the Indebtedness of any such Subsidiary; provided that the
principal amount of such Indebtedness and guarantees together with the
principal amount of Indebtedness owed to any Obligor pursuant to Section
6.01(h) in the aggregate shall be limited to $10,000,000 at any time
outstanding. Notwithstanding the foregoing, no additional such Indebtedness
shall be incurred and no additional such guarantees shall be made during the
continuance of an Event of Default;


 


(g)           Indebtedness
owed by any Subsidiary of any Obligor that is not an Obligor to any other
Subsidiary that is not an Obligor and guarantees by any such Subsidiary of the
Indebtedness of any other Subsidiary that is not an Obligor;


 


(h)           Indebtedness
of any Subsidiary of any Obligor to the holders (or their respective
Affiliates) of the Equity Interests in such Subsidiary on a basis that is
substantially proportionate to their Equity Interests (with any
disproportionately large interest received by any Obligor or any of its respective
Subsidiaries or any disproportionately small interest received by any Person
other than such Obligor or any such Subsidiary, being ignored for this
purpose); provided that the principal amount of such Indebtedness owed
to any Obligor together with the principal amount of Indebtedness owed to any
Obligor pursuant to Section 6.01(f) shall be limited to $10,000,000 at
any time outstanding. Notwithstanding the foregoing, 


 


75

















 


no additional such Indebtedness shall be incurred during the
continuance of an Event of Default;


 


(i)            Indebtedness
arising in connection with any Swap Agreement permitted by Section 6.06;


 


(j)            Indebtedness
in respect of deposits made by customers and held under forward purchasing
arrangements entered into with customers in the ordinary course of business;


 


(k)           Indebtedness
in respect of performance, bid, surety, appeal or similar bonds or completion
or performance guarantees provided in the ordinary course of business;


 


(l)            Indebtedness
in respect of workers’ compensation claims or self-insurance obligations
otherwise permitted hereunder, in each case incurred in the ordinary course of
business;


 


(m)          customary
indemnification, reimbursement or similar obligations and warranties under
leases and other contracts in the ordinary course of business;


 


(n)           Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of
business; provided that such Indebtedness is extinguished within two
Business Days after incurrence;


 


(o)           Indebtedness
constituting Investments permitted by Section 6.05;


 


(p)           the
obligations to pay the purchase price, the hold back obligations and the
indemnification obligations under the documents and agreements entered into or
being entered into in respect of the Acquisition; and


 


(q)           unsecured
Indebtedness in the aggregate amount not in excess of $6,000,000 outstanding at
any time.


 


Section 6.02           Liens  No Borrower will, nor will permit any of
its respective Subsidiaries to, create, incur, assume or permit to exist any
Lien on any property or asset now owned or hereafter acquired by it, or assign
or sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except:


 


(a)           Permitted
Encumbrances;


 


(b)           Liens
created by the Security Documents;


 


(c)           Liens
to secure Swap Agreements with any of the Lenders or Affiliate thereof;


 


(d)           Liens
on any property or asset of any Borrower or any of its respective Subsidiaries
existing on the date hereof and set forth in Schedule 6.02; provided
that (i) such Liens shall not apply to any other property or asset of any
Borrower or any of such Subsidiaries and (ii) such Liens shall secure only
those obligations which it secures on the date hereof and 


 


76

















 


extensions, renewals, refinancings and replacements thereof that do not
increase the outstanding principal amount thereof;


 


(e)           Liens
on assets acquired, constructed or improved by any Borrower or any of its
respective Subsidiaries; provided that (i) such Liens secure
Indebtedness permitted by clause (c) of Section 6.01, (ii) such Liens
and the Indebtedness secured thereby are incurred prior to or within 180 days
after such acquisition or the completion of such construction or improvement,
(iii) the Indebtedness secured thereby does not exceed 100% of the cost of
acquiring, constructing or improving such assets and (iv) such Liens shall not
apply to any other property or assets of any Borrower or any of its respective
other Subsidiaries;


 


(f)            Liens
existing on any property or asset prior to the acquisition thereof by any
Borrower or any of its respective Subsidiaries or existing on any property or
asset of any Person that becomes a Subsidiary after the date hereof prior to
the time such Person becomes a Subsidiary; provided that (i) such Liens are not
created in contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, as applicable, (ii) such Liens shall not apply to
any other property or assets of any Borrower or any of its respective other
Subsidiaries, (iii) such Liens shall secure only those obligations which it secures
on the date of such acquisition or the date such Person becomes a Subsidiary,
as applicable, and extensions, renewals, refinancings and replacements thereof
that do not increase the outstanding principal amount thereof and (iv) such
Liens secure only Indebtedness permitted under Section 6.01(c);


 


(g)           Liens
in respect of the funds, Equity Interests or other properties or assets held in
escrow in connection with the Acquisition as provided in the escrow agreement
entered into pursuant to the Acquisition Agreement;


 


(h)           Liens
arising solely by virtue of any statutory or common law provisions relating to
banker’s Liens, rights of set-off, netting or similar rights and remedies as to
deposit, securities and commodities accounts;


 


(i)            Liens
of sellers of goods to the Borrower and any of its Subsidiaries arising under
Article 2 of the Uniform Commercial Code or similar provisions of applicable
law in the ordinary course of business solely in connection with the purchase
of such goods;


 


(j)            Liens
in favor of customs and revenue authorities arising by operation of law to
secure payment of customs duties in connection with the importation of goods;


 


(k)           Liens
deemed to exist in connection with investments in repurchase agreements
described under clause (d) of the definition of Permitted Investments;


 


(l)            Liens
of a collection bank arising under Section 4-210 of the Uniform Commercial Code
as in effect in the applicable state or District of Columbia;


 


(m)          Liens
in favor of any Obligor securing Indebtedness permitted under Section
6.01(d) and Section 6.01(f); provided that any such Liens
encumbering assets of an Obligor shall be subordinated in right of payment to
the Obligations of such Obligor under the Loan Documents on terms reasonably
acceptable to the Administrative Agent;


 


77

















 


(n)           Liens
arising out of conditional sale, title retention, consignment or similar
arrangements, or by way of contract that secures Indebtedness under any
agreement, for the sale of goods and services; and


 


(o)           Liens
on Equity Interests consisting of preferred equity certificates of Dynamic
Material Luxembourg 1 S.à r.l. and Dynamic Materials
Luxembourg 2 S.à r.l., that (i) require a holder of common or
ordinary shares of such issuers to hold such preferred equity certificates in a
specified proportion, (ii) require a holder of such preferred equity
certificates to hold common or ordinary shares of such issuers in a specified
proportion, (iii) restrict transfers of such preferred equity certificates,
common shares or ordinary shares of such issuers to transfers that result in
compliance with the preceding clauses (i) and (ii) or (iv) permit such issuers
to call or redeem such Equity Interests.


 


Section 6.03           Fundamental
Changes  No Borrower will, and will
permit any of its respective Subsidiaries to, merge into or consolidate with
any other Person, or permit any other Person to merge into or consolidate with
it, or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing and, if such transaction involves the US Borrower, the US Borrower
shall survive such transaction:


 


(a)           any
Subsidiary of the US Borrower may merge into or consolidate with another
Subsidiary of the US Borrower and any Subsidiary of the US Borrower may merge
into or consolidate with the US Borrower;


 


(b)           any
Subsidiary of the US Borrower may merge into or consolidate with any other
Person so long as such Subsidiary is the surviving entity of such merger or
consolidation to the extent permitted under Section 6.10;


 


(c)           any
Subsidiary of the US Borrower may liquidate or dissolve so long as an Obligor
acquires all or substantially all of the assets of such Subsidiary in
liquidation (or in the case such Subsidiary is not a Wholly Owned Subsidiary,
such Obligor receives its pro rata
share of such assets in liquidation); and


 


(d)           any
Obligor or any of its respective Subsidiaries may change its jurisdiction of
organization subject to compliance with Section 6.11.


 


Section 6.04           Asset
Sales  No Borrower will, nor will
permit any of its respective Subsidiaries to, make or permit any Disposition
(whether in one or a related series of transactions) of any property or assets
(other than cash and cash equivalents) or enter into any agreement to do so,
except:


 


(a)           Dispositions
of inventory in the ordinary course of business;


 


(b)           Dispositions
of assets, properties or businesses to any Borrower or any of its respective
Wholly Owned Subsidiaries;


 


(c)           Dispositions
of equipment and other property which is obsolete, worn out or no longer used
in or useful to such Person’s business, all in the ordinary course of business;


 


78

















 


(d)           Dispositions
occurring as the result of a Casualty Event, condemnation or expropriation;


 


(e)           any
Disposition (excluding any Disposition consisting of any Equity Interest in any
of the Subsidiaries of the US Borrower) if (i) the consideration therefor is
not less than the fair market value of the related asset (as determined in good
faith by the Financial Officer of the US Borrower) and (ii) after giving effect
thereto, the aggregate fair market value of the assets as reasonably determined
by the Borrower disposed of in all Dispositions would not exceed $5,000,000
during any fiscal year and $10,000,000 in the aggregate during the term hereof;
provided that the consideration for any Disposition shall consist of at
least 75% cash or cash equivalents payable at closing or notes, to the extent
permitted under Section 6.05;


 


(f)            Dispositions
by any Domestic Subsidiary of its assets to another Domestic Subsidiary that is
a Wholly Owned Subsidiary, and Dispositions by any Subsidiary of the Euro
Borrower of its assets to any other Subsidiary of the Euro Borrower that is a
Wholly Owned Subsidiary;


 


(g)           Dispositions
of delinquent accounts receivable in the ordinary course of business for
purposes of collection only (and not for the purpose of any bulk sale or
securitization transaction);


 


(h)           the
surrender of contractual rights or the settlement, release or surrender of any
contract, tort or other litigation claims in the ordinary course of business;


 


(i)            the
abandonment or Disposition of Intellectual Property or other proprietary rights
that are, in the reasonable business judgment of the US Borrower, no longer
practicable to maintain or useful in the conduct of the business of any
Borrower or any of its respective Subsidiaries;


 


(j)            Dispositions
permitted by Section 6.03;


 


(k)           Dispositions
of Indebtedness from the US Borrower to a Subsidiary thereof or from a
Subsidiary of the US Borrower to the US Borrower or another Subsidiary thereof
in exchange for, upon conversion for, or contribution in respect of, Equity
Interests in such Subsidiary of the US Borrower in connection with the
capitalization or recapitalization from time to time of any such Subsidiary;


 


(l)            payment
of Restricted Payment permitted by Section 6.07;


 


(m)          Dispositions
of Permitted Investments; and


 


(n)           any
agreement to do any of the foregoing matters described in clauses (a) through
(m) of this Section.


 


Section 6.05           Investments   No
Borrower will, and will permit any of its Subsidiaries to, make or permit to
exist any Investment in any other Person, except:


 


(a)           Permitted
Investments;


 


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(b)           Investments
listed on Schedule 6.05 and any extensions, renewals, replacements or
refinancings thereof that do not increase the amount of such Investments;


 


(c)           Investments
and guarantees constituting Indebtedness permitted by Section 6.01(d)
and Section 6.01(e);


 


(d)           Investments
permitted by Section 6.03 or Section 6.06;


 


(e)           Business
Acquisitions permitted by Section 6.10;


 


(f)            Investments
by any Obligor in any Subsidiary of any Obligor; provided that such
Investment in any such Subsidiary that is not an Obligor shall be limited to
$10,000,000, net of any cash returned on such Investments. Notwithstanding the
foregoing, no additional such Investment in any such Subsidiary that is not an
Obligor shall be made during the continuance of an Event of Default;


 


(g)           Investments
by any Obligor in any other Obligor;


 


(h)           Investments
received in satisfaction of judgments, settlements of accounts, debts or
compromises of obligations or as consideration for the settlement, release or
surrender of a contract, tort or other litigation claims, in each case in the
ordinary course of business, including pursuant to any plan of reorganization
or similar arrangement upon the bankruptcy or insolvency of any trade creditor
or customer;


 


(i)            prepaid
expenses and advances in the ordinary course of business, and lease, utility,
workers’ compensation, performance and other similar deposits in the ordinary
course of business;


 


(j)            deposits
of cash with banks or other financial institutions in the ordinary course of
business so long as any such deposits by the US Borrower and any Domestic
Subsidiary are subject to perfected Liens in favor of the Administrative Agent;


 


(k)           Investments
consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the granting of trade credit in the ordinary
course of business;


 


(l)            Investments
by any Subsidiary that is not a Obligor in, to, or for the benefit of any
Subsidiary that is not an Obligor; and


 


(m)          Investments
received as consideration from any Disposition permitted by Section 6.04.


 


(n)           Other
Investments not otherwise permitted by this Section 6.05 in aggregate
amounts not in excess of $1,000,000 at any time outstanding.


 


Section 6.06           Swap
Agreements  No Borrower will, nor
will permit any of its Subsidiaries to, enter into any Swap Agreement, except
(a) Swap Agreements entered into to hedge or mitigate raw material and supply
cost risks or other risks to which any Borrower or any of its respective Subsidiaries
has actual exposure; (b) Swap Agreements entered into in order to 


 


80

















 


effectively cap, collar or exchange interest rates (from fixed to
floating rates, from one floating rate to another floating rate or otherwise)
with respect to any interest-bearing liability or Investment of any Borrower or
any of its respective Subsidiaries; and (c) Swap Agreements to hedge foreign
exchange rate risks to which any Borrower or any of its respective Subsidiaries
has actual exposure. No Swap Agreement may be secured by a Lien except as
permitted by Section 6.02(c).


 


Section 6.07           Restricted
Payments  No Borrower will, nor will
permit any of its respective Subsidiaries to, declare or make, or agree to pay
or make, any Restricted Payment, except:


 


(a)           Restricted
Payments by any Subsidiary of the US Borrower ratably with respect to the
Equity Interests in such Subsidiary;


 


(b)           Restricted
Payments to any Obligor;


 


(c)           to
purchase, retire, cancel or otherwise acquire any of the Equity Interests of
the US Borrower being deposited in escrow in connection with the Acquisition
pursuant to the escrow agreement entered into pursuant to the Acquisition
Agreement;


 


(d)           Restricted
Payments by the US Borrower pursuant to and in accordance with any stock option
plans or other benefit plans for management (including non-employee directors)
or employees of the US Borrower or any of its Subsidiaries in an aggregate
amount during any fiscal year not to exceed $5,000,000; and


 


(e)           Restricted
Payments during any fiscal year that do not exceed the lesser of (i) $5,000,000
or (ii) fifty percent (50%) of Net Income minus payments made from Excess Cash
Flow pursuant to Section 2.10(b) of the US Borrower for the immediately
prior fiscal year; provided that for purposes of this clause (d) no
Event of Default exists or is created thereby.


 


Section 6.08           Transactions
with Affiliates  No Borrower will,
and will not permit any of its respective Subsidiaries to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with any of its Affiliates, except:


 


(a)           at
prices and on terms and conditions not less favorable to such Borrower or such
Subsidiary, as applicable, than could be obtained on an arm’s-length basis from
unrelated third parties;


 


(b)           any
transaction between or among any of the Obligors;


 


(c)           transactions
between or among any Subsidiary of the US Borrower that is not an Obligor and
one or more other Subsidiaries of the US Borrower that are not Obligors;


 


(d)           Indebtedness
permitted by clauses (d) and (e) of Section 6.01;


 


(e)           transactions
permitted by Section 6.03;


 


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(f)            any
transaction permitted by clauses (a) through (n) of Section 6.04;


 


(g)           Investments
permitted by Section 6.05;


 


(h)           any
Restricted Payment permitted by Section 6.07;


 


(i)            the
payment of reasonable fees, expenses and compensations to officers, directors,
managers, employees and consultants of any Borrower or any of its respective
Subsidiaries and customary indemnification and insurance arrangements in favor
of any such officer, director, manager, employee or consultant, and any
agreement related to any of the foregoing entered into in the ordinary course
of business; and


 


(j)            any
agreements in existence on the Effective Date, as set forth on Schedule
6.08(j), as such agreements may be renewed, replaced or otherwise modified
after the Closing Date upon terms which taken as a whole are not less favorable
to the US Borrower and its Subsidiaries than the original terms of such
agreements.


 


Section 6.09           Restrictive
Agreements  No Borrower will, and
will permit any of its respective Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of such
Borrower or any of its respective Subsidiaries to create, incur or permit to
exist any Lien upon any of its or their property or assets, or (b) the ability
of any Obligor to pay dividends or other distributions with respect to any
shares of its capital stock (to the extent the holder of such shares is another
Obligor) or to make or repay loans or advances to such Borrower or any
Guarantor or to guarantee Indebtedness of such Borrower or any Guarantor; provided
that (i) the foregoing shall not apply to restrictions and conditions imposed
by Law or by any Loan Document, (ii) the foregoing shall not apply to restrictions
and conditions existing on the date hereof identified on Schedule 6.09
(but shall apply to any extension or renewal of, or any amendment or
modification expanding the scope of, any such restriction or condition), (iii)
the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of any Subsidiary of the US
Borrower pending such sale, provided such restrictions and conditions
apply only to the Subsidiary of the US Borrower that is to be sold and such
sale is permitted hereunder, (iv) clause (a) of the foregoing shall not apply
to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, (v)
clause (a) of the foregoing shall not apply to customary provisions in
leases and other contracts restricting the assignment thereof and (vi) clause
(a) of the foregoing shall not apply to the provisions of the escrow agreement
entered into pursuant to the Acquisition Agreement.


 


Section 6.10           Business
Acquisitions   Except as otherwise permitted by Section
6.05, no Borrower will, nor will permit any of its respective Subsidiaries
to, make any Business Acquisitions; provided that each Borrower and any
of its respective Subsidiaries may make Business Acquisitions provided
that (a) the sum of the aggregate cash consideration paid therefor
(excluding any amounts financed with new equity) shall not exceed $10,000,000
or the equivalent in such other currency used in connection with such Business
Acquisition, and the total consideration paid therefor (excluding any
amounts financed with the new equity) shall not 


 


82

















 


exceed $25,000,000 or the equivalent in such other currency used in
connection with such Business Acquisition in the aggregate during any trailing
four quarter period; (b) the Leverage Ratio calculated on a pro forma basis for
the most recently ended trailing four-quarter period for which financial
statements are required to be delivered pursuant to Section 5.01(b)
giving effect to any such Business Acquisition as if such Business Acquisition
were consummated at the commencement of such four-quarter period shall not be
greater than the maximum permitted Leverage Ratio as set forth in Section
6.16 at such time minus 0.25; (c) the acquired business or assets are
in the same or similar line of business as any Borrower or any of its
respective Subsidiaries; (d) for any Business Acquisition with total
consideration in excess of $50,000,000
or the equivalent in such other currency used in connection with such Business
Acquisition, Borrower shall have received the written approval of the
Administrative Agent having received the written approval of the Required
Lenders, which approval shall not be unreasonably withheld and, in connection
therewith, the Borrower shall have given the Administrative Agent and the
Lenders at least ten (10) Business Days prior written notice of any such
proposed Business Acquisition (each of such notices, a “Permitted
Acquisition Notice”), which notice must be timely provided and must be
accompanied by all of the information required in this Section 6.10 and
shall (i) contain the estimated date such proposed Business Acquisition is
scheduled to be consummated, (ii) attach a true and correct copy of the draft
purchase agreement (if available), letter of intent, description of material
terms or similar agreements executed by the parties thereto in connection with
such proposed Business Acquisition, (iii) contain the estimated aggregate
purchase price of such proposed Business Acquisition and the estimated amount
of related costs and expenses and the intended method of financing thereof, and
(iv) contain the estimated amount of Loans required to effect such proposed
Business Acquisition; (e) no Default shall exist before or immediately
after giving effect to such Business Acquisition; (f) prior to the
consummation of the proposed Business Acquisition with a total consideration
paid therefor in excess of $10,000,000 or the equivalent in such other currency
used in connection with such Business Acquisition the US Borrower shall furnish
the Administrative Agents and the Lenders an officer’s certificate executed by
a Financial Officer of the US Borrower, certifying as to compliance with the
requirements of the applicable preceding Section 6.10(a) through Section
6.10 (e), containing the calculations required in this Section 6.10;
and (g) the consummation of each Business Acquisition shall be deemed to
be a representation and warranty by the US Borrower that all conditions thereto
under this Section 6.10 have been satisfied and that same is permitted
in accordance with the terms of this Agreement, which representation and
warranty shall be deemed to be a representation and warranty for all purposes
hereunder.


 


Section 6.11           Constituent
Documents  No Obligor will amend its
charter or by-laws or other constitutive documents in any manner which could
adversely and materially affect the rights of the Lenders under this Agreement
or their ability to enforce the same; provided, however, any Obligor
shall be permitted after the date hereof to amend its constitutive documents
for the purpose of changing its jurisdiction of organization so long as the
Administrative Agent is given 30 days’ prior written notice of such change.


 


Section 6.12           Sales
and Leasebacks  No Borrower shall,
nor shall 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 of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, that (i) any Borrower or any of its respective Subsidiaries
has sold or transferred or is to sell or transfer to any other Person (other
than any Borrower or any of its 


 


83

















 


respective Subsidiaries) or (ii) any Borrower or any of its respective
Subsidiaries intends to use for substantially the same purpose as any other
property that has been or is to be sold or transferred by such Borrower or such
Subsidiary to any Person (other than any other Borrower or any of other
Subsidiaries of such Borrower) in connection with such lease; except for any
such arrangement whereby any such sale or transfer of any assets that is made
for cash consideration in an amount not less than the cost of such asset and is
consummated within 180 days after such Borrower or such Subsidiary acquires or
completes construction of such asset.


 


Section 6.13           Capital
Expenditures  No Borrower will, nor
will permit any of its Subsidiaries to, make Capital Expenditures in the
aggregate (including any Capital Lease Obligations) in any fiscal year which
result in all Capital Expenditures made during such fiscal year by the US
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP
to exceed: (i) for the year ended December 31, 2008, $10,000,000 and (ii)
thereafter, $8,000,000, in each case, plus, beginning in the fiscal year ended
December 31, 2009, the unused amount of such cap during the immediately prior
year (but only for such immediately prior year and not any earlier periods).


 


Section 6.14           Changes
in Fiscal Year  The US Borrower shall
not change the end of its fiscal year to a date other than December 31.


 


Section 6.15           Fixed
Charge Coverage Ratio  The US
Borrower shall not permit the Fixed Charge Coverage Ratio (i) from January 1,
2008 through December 31, 2008, measured quarterly as of the last day of each
fiscal quarter, to be less than 1.35 to 1.0 and (ii) thereafter, for any
trailing four quarter period measured as of the last day of any fiscal quarter,
to be less than 1.50 to 1.0.


 


Section 6.16           Leverage
Ratio  The Borrowers shall not permit
the Leverage Ratio for any trailing four-quarter period measured as of the last
day of each fiscal quarter to exceed (i) 2.0 to 1.0 for the period from the
Effective Date through December 31, 2008, (ii) 1.50 to 1.0 for the period from
January 1, 2009 through December 31, 2009, (iii) 1.25 to 1.0 for the period
from January 1, 2010 through December 31, 2010 and (iv) 1.0 to 1.0 thereafter.


 


ARTICLE VII


 


Events of Default and Remedies


 


Section 7.01           Events
of Default  If any of the following
events (“Events of Default”) shall occur:


 


(a)           the
US Borrower shall fail to pay any principal of any Term Loan or Revolving Loan
or any reimbursement obligation in respect of any LC Disbursements, or the Euro
Borrower shall fail to pay any principal of any Eurocurrency Loan, in each case
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;


 


(b)           the
US Borrower shall fail to pay any interest on any Term Loan or Revolving Loan
or any fee or other amount (other than an amount referred to in clause (a) of
this Section 


 


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7.01) payable under this Agreement
or the other Loan Documents in respect of any Term Loan or Revolving Loan or
the Euro Borrower shall fail to pay any interest on any Eurocurrency Loan or
any fee or other amount (other than an amount referred to in clause (a) of this
Section 7.01) payable under this Agreement or the other Loan Documents
in respect of any Eurocurrency Loan, in each case when and as the same shall
become due and payable, and such failure shall continue unremedied for a period
of five (5) Business Days;


 


(c)           any
representation or warranty made or deemed made by or on behalf of any Borrower
or any of its respective Subsidiaries in or in connection with this Agreement
or any Loan Document or any amendment or modification hereof or waiver
hereunder, or in any report, certificate, financial statement, or other
document furnished pursuant to or in connection with this Agreement or any amendment
or modification hereof or waiver hereunder, shall prove to have been incorrect
when made or deemed made;


 


(d)           any
Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, Section 5.03 (with respect to the US
Borrower’s existence) or Section 5.08 or in Article VI (other
than those referenced in (e) and (f), below);


 


(e)           any
Borrower shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clause (a), (b) or
(d) of this Article VII) or in any other Loan Document, and such failure
shall continue unremedied for a period of 30 days after notice of such
failure from Administrative Agent to the US Borrower;


 


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


 


(g)           any
event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits (in each case,
after giving effect to any applicable grace or notice period) the holder or
holders of such Material Indebtedness or any trustee or agent on its or their
behalf to cause such Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity, provided that this clause (g) shall not apply to
secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;


 


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


 


(i)            any
Borrower or any of its Subsidiaries, shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in 


 


85

















 


effect, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in clause
(h) of this Section 7.01, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for any Borrower or any of its Subsidiaries or for a substantial part
of their (individually, or in the aggregate) assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi)
take any action for the purpose of effecting any of the foregoing;


 


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


 


(k)           one
or more judgments for the payment of money that is not covered by insurance in
an aggregate amount in excess of $2,000,000 shall be rendered against any
Borrower or any of its respective Subsidiaries or any combination thereof and
the same shall remain undischarged or unstayed for a period of 60 consecutive
days during which execution shall not be effectively stayed, or any attachment
or levy shall be entered upon any assets of such Borrower or Subsidiary to
enforce any such judgment;


 


(l)            an
ERISA Event shall have occurred that, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in a Material
Adverse Effect;


 


(m)          a
proceeding shall be commenced by any Obligor seeking to establish the
invalidity or unenforceability of any Loan Document (exclusive of questions of
interpretation thereof), or any Obligor shall repudiate or deny that it has any
liability or obligation for the payment of principal or interest or other
obligations purported to be created under any Loan Document;


 


(n)           any
Lien created by any of the Security Documents shall at any time fail to
constitute a valid and (to the extent required by the Security Documents)
perfected Lien on any material portion of the Collateral purported to be
subject thereto, securing the obligations purported to be secured thereby, with
the priority required by the Loan Documents, or any Obligor shall so assert in
writing, in each case (i) other than as a result of action or inaction of
the Administrative Agents or any Lender, including the expiration of an UCC
financing statements or other instruments necessary to perfect the
Administrative Agent’s Lien in the Collateral or (ii) as a result of any
Disposition of any Collateral permitted under the applicable Loan Documents or
as otherwise permitted thereunder; or


 


(o)           a
Change in Control occurs;


 


then, and in every such event (other than an event
with respect to either Borrower described in clause (h) or (i) of this Section
7.01), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by
notice to the US Borrower, take any or all of the following actions, at the
same or different times: 
(i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, (ii) declare the Loans then outstanding to be due
and payable in whole (or in part, in which case any principal not so declared
to be due and payable may thereafter be declared to be due and 


 


86

















 


payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other Obligations of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by each of them; and in case of any
event described in clause (h) or (i) of this Section 7.01, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
Obligations of the Borrowers accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest notice of acceleration or the
intent to accelerate or any other notice of any kind, all of which are hereby
waived by each of them, and (iii) exercise any or all of the remedies
available to it under any of the Loan Documents, at Law or in equity
(including, without limitation, conducting a foreclosure sale of any of the
Collateral).


 


Section 7.02           Cash
Collateral  In addition to the
remedies contained in Section 7.01, upon the occurrence and continuance
of any Event of Default, the Administrative Agents shall have the remedies
available to them under Section 2.05(j) and Section 2.06(j),
respectively.


 


ARTICLE VIII


 


The Administrative Agent


 


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


 


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


 


The Administrative Agents shall not have any duties or
obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agents shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default or an Event of Default has occurred and
is continuing, (b) the Administrative 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 Administrative
Agents required to exercise in writing as directed by the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.02), and (c) except as expressly
set forth herein, the Administrative Agents shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrowers or any of their Subsidiaries that is communicated to
or obtained by the Administrative Agents or any of their Affiliates in any
capacity. The Administrative Agents shall not be liable for any action taken or
not taken by them with the consent or at the request of the Required Lenders
(or such other number or


 


87

















 


percentage of the Lenders as shall be necessary under the circumstances
as provided in Section 10.02) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agents shall be deemed not
to have knowledge of any Default or Event of Default unless and until written
notice thereof is given to the Administrative Agents by the Borrowers or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set
forth in Article IV or elsewhere herein, other than to confirm receipt
of items expressly required to be delivered to the Administrative Agents.


 


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


 


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


 


In addition, each of the Lenders, the Issuing Lender
and the Euro Issuing Lender hereby indemnifies the Agents (to the extent not
reimbursed by the Borrowers), ratably according to its respective pro rata
share of the total of the Commitments, or if no Commitments are outstanding,
the respective pro rata share of the total of the Commitments immediately prior
to the time Commitments ceased to be outstanding held by each of them, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against the
Administrative Agents (or either of them) in any way relating to or arising out
of this Agreement or any action taken or omitted by the Administrative Agents
under this Agreement or the other Loan Documents (including any action taken or
omitted under Article II of this Agreement). Without limitation of the
foregoing, each Lender, the Issuing Lender and the Euro Issuing Lender agrees
to reimburse each of the Administrative Agents promptly upon demand for its
respective pro rata share of the total of the Commitments of any out-of-pocket
expenses (including reasonable counsel fees) incurred by the Administrative
Agents (or either of them) in connection with the preparation, execution,
administration or 


 


88

















 


enforcement of, or legal advice in respect of rights or responsibilities
under, this Agreement or the other Loan Documents to the extent that such
Administrative Agent is not reimbursed for such expenses by the Borrower. The
provisions of this section shall survive the termination of this Agreement and
the payment of the Obligations.


 


Subject to the appointment and acceptance of a
successor Administrative Agent as provided in this paragraph, either of the
Administrative Agents may resign at any time by notifying the Lenders, the
Issuing Lender, the Euro Issuing Lender and the US Borrower. Upon any such
resignation, the Required Lenders shall have the right, with the approval of US
Borrower, which shall not be unreasonably withheld, conditioned or delayed, and
shall not be required during the existence of an Event of Default, to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Lender,
appoint a successor Administrative Agent which shall be a bank with an office
in New York, New York, or an Affiliate of any such bank. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrowers to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrowers and such successor. After the Administrative Agent’s
resignation hereunder, the provisions of this Article VIII and Section
10.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.


 


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


 


ARTICLE IX


 


Guarantee


 


Section 9.01           The
Guarantee  (a)(i)  Each US Guarantor the assets of which are all
or substantially all comprised of stock or securities in one or more Foreign
Subsidiaries hereby jointly, severally, unconditionally and irrevocably with
every other such US Guarantor guarantees the full and punctual payment (whether
at stated maturity, upon acceleration or otherwise) of the principal of and
interest on the Euro Revolving Loans and the Euro Term Loans, and the full and
punctual payment of all other Obligations payable by the Euro Borrower and any
Euro Guarantor under the Loan Documents. Upon failure by the Euro Borrower or
any 


 


89

















 


Euro Guarantor to pay punctually any such amount, each such US
Guarantor shall forthwith on demand pay the amount not so paid at the place and
in the manner specified in this Agreement or the other Loan Documents.


 


(ii)           Each
US Guarantor the assets of which are not all or substantially all
comprised of stock or securities in one or more Foreign Subsidiaries hereby
jointly, severally, unconditionally and irrevocably with every other such US
Guarantor guarantees the full and punctual payment (whether at stated maturity,
upon acceleration or otherwise) of the principal of and interest on the
Revolving Credit Loans, the Term Loans, the Euro Revolving Loans and the Euro
Term Loans, and the full and punctual payment of all other Obligations payable
by the US Borrower, the Euro Borrower, any Euro Guarantor or any other US
Guarantor under the Loan Documents. Upon failure by the US Borrower, the Euro
Borrower, any Euro Guarantor or any other US Guarantor to pay punctually any
such amount, each such US Guarantor shall forthwith on demand pay the amount
not so paid at the place and in the manner specified in this Agreement or the
other Loan Documents.


 


(iii)          The
Guarantee contained in clauses (i) and (ii) of this paragraph is a guaranty of
payment and not of collection. The Lenders shall not be required to exhaust any
right or remedy or take any action against the US Borrower, the Euro Borrower,
the Euro Guarantors, the US Guarantors or any other Person or any Collateral. Each
US Guarantor agrees that, as between such US Guarantor and the Lenders, the
Obligations of the US Borrower, the Euro Borrower, the Euro Guarantors and the
other US Guarantors may be declared to be due and payable for the purposes of
this Guarantee notwithstanding any stay, injunction or other prohibition which
may prevent, delay or vitiate any declaration as regards the US Borrower or the
Euro Borrower and that in the event of a declaration or attempted declaration,
the Obligations of the US Borrower, the Euro Borrower, the Euro Guarantors and
the other US Guarantors shall immediately become due and payable by each US
Guarantor for the purposes of this Guarantee.


 


(b)           Each
Euro Guarantor hereby jointly, severally, unconditionally and irrevocably
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on the Eurocurrency
Loans, and the full and punctual payment of all other Obligations payable by
the Euro Borrower or any other Euro Guarantor under the Loan Documents. Upon
failure by the Euro Borrower or any other Euro Guarantor to pay punctually any
such amount, each Euro Guarantor shall forthwith on demand pay the amount not
so paid at the place and in the manner specified in this Agreement or the other
Loan Documents. This Guarantee is a guaranty of payment and not of collection. The
Lenders shall not be required to exhaust any right or remedy or take any action
against the Borrowers, the Guarantors, or any other Person or any Collateral. The
Euro Guarantors agree that, as between the Euro Guarantors and the Lenders, the
Obligations of the Euro Borrower and the other Euro Guarantors may be declared
to be due and payable for the purposes of this Guarantee notwithstanding any
stay, injunction or other prohibition which may prevent, delay or vitiate any
declaration as regards the Euro Borrower and that in the event of a declaration
or attempted declaration, the Obligations of the Euro Borrower and the other
Euro Guarantors shall immediately become due and payable by each Euro Guarantor
for the purposes of this Guarantee.


 


90
















 


(c)           The
US Borrower hereby unconditionally and irrevocably guarantees the full and
punctual payment (whether at stated maturity, upon acceleration or otherwise)
of the principal of and interest on the Eurocurrency Loans, and the full and
punctual payment of all other Obligations payable by the Euro Borrower or any
Euro Guarantor under the Loan Documents. Upon failure by the Euro Borrower or
any Euro Guarantor to pay punctually any such amount, the US Borrower shall
forthwith on demand pay the amount not so paid at the place and in the manner
specified in this Agreement or the other Loan Documents. This Guarantee is a
guaranty of payment and not of collection. The Lenders shall not be required to
exhaust any right or remedy or take any action against the Euro Borrower, the
Guarantors, or any other Person or any Collateral. The US Borrower agrees that,
as between the US Borrower and the Lenders, the Obligations of the Euro
Borrower and the Euro Guarantors may be declared to be due and payable for the
purposes of this Guarantee notwithstanding any stay, injunction or other
prohibition which may prevent, delay or vitiate any declaration as regards the
Euro Borrower and that in the event of a declaration or attempted declaration,
the Obligations of the Euro Borrower and the Euro Guarantors shall immediately
become due and payable by the US Borrower for the purposes of this Guarantee.


 


Section 9.02           Guarantee
Unconditional  The obligations of
each of the Guarantors and the US Borrower under this Article IX shall
be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:


 


(a)           any
extension, renewal, settlement, compromise, waiver or release in respect of any
Obligation of either of the Borrowers or any other Guarantor under the Loan
Documents, by operation of law or otherwise;


 


(b)           any
modification, amendment or waiver of or supplement to the Loan Documents;


 


(c)           any
release, impairment, non-perfection or invalidity of any direct or indirect
security for any obligation of either of the Borrowers or any other Guarantor
under the Loan Documents;


 


(d)           any
change in the corporate existence, structure or ownership of the either of the
Borrowers or any other Guarantor, or any insolvency, bankruptcy, reorganization
or other similar proceeding affecting either of the Borrowers, any other
Guarantor or their respective assets or any resulting release or discharge of
any obligation of either of the Borrowers or any other Guarantor contained in
the Loan Documents;


 


(e)           the
existence of any claim, set-off or other rights which the Guarantor may have at
any time against either of the Borrowers, any other Guarantor, any of the
Administrative Agents, any Lender or any other Person, whether in connection herewith
or any unrelated transactions, provided that nothing herein shall
prevent the assertion of any such claim by separate suit or compulsory
counterclaim;


 


(f)            any
invalidity or unenforceability relating to or against either of the Borrowers
or any other Guarantor for any reason of the Loan Documents, or any provision
of applicable law or regulation purporting to prohibit the payment by either of
the Borrowers or any other 


 


91

















 


Guarantor of the principal of or interest on any Loan or any other
amount payable by either of the Borrowers or any other Guarantor under the Loan
Documents; or


 


(g)           any
other act or omission or delay of any kind by either of the Borrowers, any
other Guarantor, the Administrative Agents, any Lender or any other Person or
any other circumstance whatsoever that might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the Guarantor’s
obligations hereunder.


 


Furthermore, notwithstanding that the Borrowers may
not be obligated to the Administrative Agents and/or the Lenders for interest
and/or attorneys’ fees and expenses on, or in connection with, any Obligations
from and after the Petition Date (as hereinafter defined) as a result of the
provisions of the federal bankruptcy law or otherwise, Obligations for which
the Guarantors shall be obligated shall include interest accruing on the
Obligations at the Default Rate from and after the date on which such Borrower
files for protection under the federal bankruptcy laws or from and after the
date on which an involuntary proceeding is filed against such Borrower under
the federal bankruptcy laws (herein collectively referred to as the “Petition
Date”) and all reasonable attorneys’ fees and expenses incurred by the
Administrative Agent and the Lenders from and after the Petition Date in
connection with the Obligations.


 


Section 9.03           Discharge
Only upon Payment in Full; Reinstatement In Certain Circumstances  The obligations of each of the Guarantors and
the US Borrower under this Article IX shall remain in full force and
effect until the Commitments shall have terminated and the principal of and
interest on the Loans and all other amounts payable by the Obligors under the
Loan Documents shall have been paid in full. If at any time any payment of the
principal of or interest on any Loan or any other amount payable by the
Obligors under the Loan Documents is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of any Obligor or
otherwise, the obligations of each of the Guarantors and the US Borrower under
this Article IX with respect to such payment shall be reinstated at such
time as though such payment had been due but not made at such time. The US
Guarantors under Section 9.01(a)(i) jointly and severally agree to
indemnify each Euro Revolving Credit Lender and each Euro Term Lender, the US
Guarantors under Section 9.01(a)(ii) jointly and severally agree to
indemnify each Revolving Credit Lender and each Term Lender and the Euro
Guarantors jointly and severally agree to indemnify each Euro Revolving Credit
Lender and each Euro Term Lender on demand for all reasonable costs and
expenses (including reasonable fees of counsel) incurred by such Lender in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law, other than any costs or expenses
resulting from the bad faith or willful misconduct of such Lender.


 


Section 9.04           Waiver
by Each Guarantor  Each Guarantor
irrevocably waives acceptance hereof, diligence, presentment, demand, protest
notice of acceleration or the intent to accelerate and any other notice not
provided for in this Article IX, as well as any requirement that at any
time any action be taken by any Person against the Borrowers or any other
Guarantor or any other Person.


 


92

















 


Section 9.05           Subrogation  Each US Guarantor under Section
9.01(a)(ii) shall be subrogated to all rights of the Revolving Credit
Lenders and the Term Lenders, the Administrative Agent and the holders of the
Revolving Credit Loans and the Term Loans against the US Borrower in respect of
any amounts paid by such US Guarantor pursuant to the provisions of this Article
IX, and each of the US Guarantors under Section 9.01(a)(i), the Euro
Guarantors and the US Borrower shall be subrogated to all rights of the Euro
Revolving Credit Lenders and the Euro Term Lenders, the Euro Administrative
Agent and the holders of the Euro Revolving Loans and the Euro Term Loans
against the Euro Borrower; provided that such Guarantor or the US
Borrower, as applicable, shall not be entitled to enforce or to receive any
payments arising out of or based upon such right of subrogation until the
principal of and interest on the Loans and all other sums at any time payable
by the Borrowers under the Loan Documents shall have been paid in full. If any
amount is paid to any Guarantor or the US Borrower, as applicable, on account
of subrogation rights under these Guarantees at any time when all the
Obligations have not been indefeasibly paid in full, the amount shall be held
in trust for the benefit of the Revolving Credit Lenders, the Term Lenders, the
Euro Revolving Credit Lenders or the Euro Term Lenders, as applicable, and
shall be promptly paid to the Administrative Agents to be credited and applied
to the Obligations, whether matured or unmatured or absolute or contingent, in
accordance with the terms of this Agreement.


 


Section 9.06           Stay
of Acceleration  (a) If acceleration
of the time for payment of any amount payable by any Obligor under the Loan
Documents is stayed upon insolvency, bankruptcy or reorganization of the US
Borrower, all such amounts otherwise subject to acceleration under the terms of
this Agreement shall nonetheless be payable by each US Guarantor under Section
9.01(a)(ii) for its respective Obligations as described in this Article
IX promptly following demand by either of the Administrative Agent made at
the request of the requisite proportion of the Lenders specified in Article
X of this Agreement.


 


(b)           If
acceleration of the time for payment of any amount payable by any Obligor under
the Loan Documents is stayed upon insolvency, bankruptcy or reorganization of
the Euro Borrower, all such amounts otherwise subject to acceleration under the
terms of this Agreement shall nonetheless be payable by each US Guarantor under
Section 9.01(a)(i), each Euro Guarantor and the US Borrower hereunder
for its respective Obligations as described in this Article IX promptly
following demand by either of the Euro Administrative Agent made at the request
of the requisite proportion of the Lenders specified in Article X of
this Agreement.


 


Section 9.07           Limit
of Liability  Notwithstanding any
other provision of this Article IX, the obligations of each of the
Guarantors and the US Borrower under this Article IX shall be limited to
an aggregate amount equal to the largest amount that would not render its
obligations hereunder subject to avoidance under Section 548 of the United
States Bankruptcy Code or any comparable provisions of any applicable state
law.


 


Section 9.08           Release
upon Sale  Upon any sale of any
Guarantor permitted by this Agreement, and, if required hereunder, payment to
the Administrative Agents, as applicable, for the pro rata benefit of the
applicable Lenders, of the proceeds of such sale, such Guarantor shall (a) be
released from its obligations as a Guarantor hereunder, (b) all Liens, if any,
securing such Guarantee shall automatically be terminated and released and (c)
the Administrative Agent will, at the expense of said Guarantor, execute and
deliver such documents as are reasonably 


 


93

















 


necessary to evidence said releases and terminations, following written
request from the applicable Borrower and receipt by the Administrative Agents
of a certificate from the applicable Borrower certifying no Default or Event of
Default exists.


 


Section 9.09           Benefit
to Guarantor  Each Guarantor
acknowledges that the Loans made to the Borrowers may be, in part, re-loaned
to, or used for the benefit of, such Guarantor and its Affiliates, that each
Guarantor, because of the utilization of the proceeds of the Loans, will
receive a direct benefit from the Loans and that, without the Loans, such
Guarantor would not be able to continue its operations and carry on its business
as presently conducted.


 


Section 9.10           Jurisdiction
Specific Provisions  The provisions
of this Article IX are subject to the limitations contained in the
jurisdiction specific provisions contained in Schedule 9.10 attached
hereto.


 


ARTICLE X



Miscellaneous


 


Section 10.01         Notices  (a) Except in the case of notices and
other communications expressly permitted to be given by telephone (and subject
to paragraph (b) below), all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as
follows:


 


(i)            if
to the US Borrower or the Euro Borrower, to:


 


5405 Spine
Road


Boulder,
Colorado  80301


Attention:  Chief Financial Officer


Telecopy No.:
(303) 604-1897


Telephone No.:
(303) 655-5700


 


with a copy
to:


 


Holme Roberts
& Owen LLP


1700 Lincoln
Street, Suite 4100


Denver,
Colorado  80203


Attention:  Paul G. Thompson


Telecopy
No.:  (303) 866-0200


Telephone
No.:  (303) 861-7000


 


(ii)           if
to a Guarantor, to it in care of the US Borrower;


 


94

















 


(iii)          if
to the Administrative Agent  to


 


JP Morgan Loan
Services


JPMorgan Chase
Bank, N.A.


Loan and
Agency Service Group


10 South
Dearborn, 7th Floor


Chicago,
Illinois 60603


Telecopy
No.:  (312) 385-7102


Telephone
No.:  (312) 732-2009


 


with a copy
to:


 


JPMorgan Chase
Bank, N.A.


1125 17th
Street, Suite 300


Denver,
Colorado  80202


Attention:  Brennon J. Crist


Telecopy No.:
(303) 244-3351


Telephone No.:
(303) 244-3220


 


Andrews Kurth
LLP


600 Travis,
Suite 4200


Houston, Texas
77002


Attention:  Thomas J. Perich


Telecopy
No.:  713-220-4285


Telephone No.:
713-220-4268


 


(iv)          If
to the Euro Administrative Agent:


 


J.P. Morgan
Europe Limited


125 London
Wall


London


England EC2Y
5AJ


Telecopy
No:  44 207 777 2360


Telephone
No.:  44 207 777 2352/2355


Attn:  Agency


 


(v)           if
to the Issuing Lender, to


 


JP Morgan Loan
Services


JPMorgan Chase
Bank, N.A.


Loan and
Agency Service Group


10 South
Dearborn, 7th Floor


Chicago,
Illinois 60603


Telecopy
No.:  (312) 385-7102


Telephone
No.:  (312) 732-2009


 


95

















 


with a copy
to:


 


JPMorgan Chase
Bank, N.A.


1125 17th
Street, Suite 300


Denver,
Colorado  80202


Attention:  Brennon J. Crist


Telecopy No.: (303)
244-3351


Telephone No.:
(303) 244-3220


 


(vi)          if
to the Swingline Lender, to


 


JP Morgan Loan
Services


JPMorgan Chase
Bank, N.A.


Loan and
Agency Service Group


10 South
Dearborn, 7th Floor


Chicago,
Illinois 60603


Telecopy
No.:  (312) 385-7102


Telephone No.:  (312) 732-2009


 


with a copy
to:


 


JPMorgan Chase
Bank, N.A.


1125 17th
Street, Suite 300


Denver,
Colorado  80202


Attention:  Brennon J. Crist


Telecopy No.:
(303) 244-3351


Telephone No.:
(303) 244-3220


 


(vii)         if
to the Euro Issuing Lender to:


 


J. P. Morgan
Europe Limited


125 London
Wall


London 


EC2Y 5AJ


England


Telecopy
No.:  (44) 207 777 2360


Telephone No.:
(44) 207 777 2352/2355


Attn:  Agency Department


 


with a copy
to:


 


Global Trade
Solutions


1 Chaseside
(DB01-0365)


Bournemouth,
BH 7 7DA


Attn:  Fiona Hallam


 


96

















 


Telecopy
No.:  (44) 1202 343730


Telephone No.:
(44) 1202 347744


 


(viii)        if
to the Euro Swingline Lender to:


 


J. P. Morgan
Europe Limited


125 London
Wall


London 


EC2Y 5AJ


England


Telecopy
No.:  (44) 207 777 2360


Telephone No.:
(44) 207 777 2352/2355


Attn:  Agency Department


 


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


 


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


 


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


 


Section 10.02         Waivers;
Amendments  (a) No failure or delay
by the Administrative Agent, the Euro Administrative Agent, the Issuing Lender,
the Euro Issuing Lender or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent, the Euro Administrative Agent, the Issuing Lender,
the Euro Issuing Lender and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of this Agreement or consent to any departure by any Obligor
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. Without
limiting the generality of the 


 


97

















 


foregoing, the making of a Loan or issuance of a Letter of Credit or
Euro Letter of Credit shall not be construed as a waiver of any Default,
regardless of whether the Administrative Agent, the Euro Administrative Agent,
any Lender, the Issuing Lender or the Euro Issuing Lender may have had notice
or knowledge of such Default at the time.


 


(b)           Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Borrowers and the Required Lenders or by the Borrowers and the Administrative
Agent with the consent of the Required Lenders; provided that no such
agreement shall (i) increase  the
Commitment of any Lender without the written consent of such Lender, (ii)
reduce the principal amount of any Loan, or LC Disbursement or the Euro LC
Disbursement or reduce the rate of interest thereon (including any agreement to
amend or modify the definition of Leverage Ratio that would have the effect of
reducing such rate of interest), or reduce any fees payable hereunder, without
the written consent of each Lender directly affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of
any Loan, LC Disbursement or Euro LC Disbursement, or any interest thereon, or
any fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender directly affected thereby, (iv)
change Section 2.18(b) or Section 2.18(c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section
10.02 (b) or the definition of “Required Lenders” or any other provision
hereof specifying the number or percentage of Lenders required to waive, amend
or modify any rights hereunder or make any determination or grant any consent
hereunder, without the  written consent
of each Lender, (vi) release all or substantially all of the Collateral
from the Liens of the Security Documents, without the written consent of each
Lender, provided, that nothing herein shall prohibit the Administrative
Agents from releasing any Collateral, or require the consent of the other
Lenders for such release, in respect of items sold, leased, conveyed or
otherwise disposed to the extent such sale, lease, conveyance or other disposition
is permitted or not prohibited hereunder, or (vii) release all or
substantially all of the Guarantees (other than in connection with any
transaction permitted or not prohibited hereunder), without the written consent
of each Lender; provided further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent,
the Euro Administrative Agent, the Issuing Lender or the Swingline Lender
hereunder without the prior written consent of the Administrative Agents, the
Issuing Lender or the Swingline Lender, as applicable.


 


Section 10.03         Expenses;
Indemnity; Damage Waiver  (a) The US
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates (other than the Euro Administrative
Agent, any Euro Revolving Credit Lender, any Euro Term Lender, the Euro Issuing
Lender or the Euro Swingline Lender), including the reasonable fees, charges
and disbursements of counsel and consultants for the Administrative Agent, in
connection with the syndication of the credit facilities provided for herein,
due diligence undertaken by the Administrative Agent with respect to the
financing contemplated by this Agreement, the preparation and administration of
this Agreement or any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Lender in connection with the issuance, amendment, renewal or extension
of any Letter of Credit or any demand for payment thereunder and (iii) all
reasonable out-of-pocket 


 


98

















 


expenses incurred by the Administrative Agent, the Issuing Lender, any Revolving
Credit Lender, Term Lender, including the fees, charges and disbursements of
one primary law firm as counsel, local counsel as needed and consultants for
the Administrative Agent, the Issuing Lender or any Revolving Credit Lender or
Term Lender, in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section, or in
connection with the Revolving Credit Loans and Term Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred
during  any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit. The Euro Borrower
shall pay (x) all reasonable out-of-pocket expenses incurred by the Euro
Administrative Agent and its Affiliates (other than the Administrative Agent,
the Arranger, the Issuing Lender or any Revolving Credit Lender, Term Lender or
Swingline Lender), including the reasonable fees, charges and disbursements of
counsel and consultants for the Euro Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, due diligence
undertaken by the Euro Administrative Agent with respect to the financing
contemplated by this Agreement, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (y) all reasonable out-of-pocket expenses incurred by the
Euro Issuing Lender in connection with the issuance, amendment, renewal or
extension of any Euro Letter of Credit or any demand for payment therefor and
(z) all reasonable out-of-pocket expenses incurred by the Euro Administrative
Agent, the Euro Issuing Lender, any Euro Revolving Credit Lender or any Euro
Term Lender, including the fees, charges and disbursements of one primary law
firm as counsel, local counsel as needed and consultants for the Euro
Administrative Agent, the Euro Issuing Lender, the Euro Revolving Credit
Lenders or the Euro Term Lenders, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its
rights under this Section, or in connection with the Euro Revolving Loans or
the Euro Term Loans made or Euro Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during 
any workout, restructuring or negotiations in respect of such Loans or
Euro Letters of Credit.


 


(b)           (i)  The US Borrower shall indemnify the
Administrative Agent, the Issuing Lender and each Revolving Credit Lender and
Term Lender, and each Related Party (other than the Euro Administrative Agent,
any Euro Revolving Credit Lender or any Euro Term Lender) of any of the
foregoing Persons (each such Person being called an “US Indemnitee”)
against, and hold each US Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees,
charges and disbursements of any counsel for any US Indemnitee, incurred by or
asserted against any US Indemnitee arising out of, in connection with, or as a
result of (A) the execution or delivery of this Agreement, any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (B) any Loan made or Letter of Credit
issued by any Revolving Credit Lender or Term Lender or the Issuing Lender, as
applicable, or the use of the proceeds therefrom (including any refusal by the
Issuing Lender to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (C) any actual or alleged presence or release
of Hazardous Materials on or from any property owned or operated by the US
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to the US Borrower or any of its Subsidiaries, or (D) any actual claim,
litigation, investigation or 


 


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proceeding relating to any of the foregoing, whether based on contract,
tort or any other theory and regardless of whether any US Indemnitee is a party
thereto; and whether or not caused by the ordinary, sole or
contributory negligence of any Indemnitee, provided further
that such indemnity shall not, as to any US Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related expenses
resulted from the gross negligence or willful misconduct of such US Indemnitee.
It is agreed by the parties hereto that the indemnity obligations of the US
Borrower under the Commitment Letter are superseded to the extent described in
this Agreement.


 


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


 


(c)           (i)  To the extent that the US Borrower fails to
pay any amount required to be paid by it to the Administrative Agent, the
Issuing Lender or the Swingline Lender under paragraph (a) or (b) of this
Section, each Revolving Credit Lender and Term Lender severally agrees to pay
to the Administrative Agent, the Issuing Lender or the Swingline Lender, as applicable,
such Lender’s pro rata share
(determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related expense,
as applicable, was incurred by or asserted against the Administrative Agent,
the Issuing Lender or the Swingline Lender in its capacity as such. For
purposes hereof, a Revolving Credit Lender’s or a Term Lender’s “pro rata share” shall be determined based
upon its share of the sum of the total Revolving Credit Exposure, outstanding
Term Loans, and unused Commitments at the time.


 


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(ii)           To
the extent that the Euro Borrower fails to pay any amount required to be paid
by it to the Euro Administrative Agent, the Euro Issuing Lender or the Euro
Swingline Lender under paragraph (a) or (b) of this Section, each Euro
Revolving Credit Lender and Euro Term Lender severally agrees to pay to the
Euro Administrative Agent, the Euro Issuing Lender or the Euro Swingline
Lender, as applicable, such Lender’s pro
rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as applicable, was incurred by or asserted against the Euro
Administrative Agent, the Euro Issuing Lender or the Euro Swingline Lender in
its capacity as such. For purposes hereof, a Euro Revolving Credit Lender’s or
a Euro Term Lender’s “pro rata
share” shall be determined based upon its share of the sum of the total Euro
Revolving Credit Exposure, outstanding Euro Term Loans, and unused Commitments
at the time.


 


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


 


(e)           All
amounts due under this Section shall be payable no later than ten (10) Business
Days from demand therefor.


 


Section 10.04         Successors
and Assigns   (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Lender or the Euro Issuing Lender that issues any Letter of Credit
or Euro Letter of Credit), except that (i) no Borrower may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by such
Borrower without such consent shall be null and void), except pursuant to a
merger in accordance with Section 6.03; (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section; and (iii) no Eurocurrency Lender may assign or otherwise transfer its
rights or obligations hereunder to any natural person. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Lender or the Euro
Issuing Lender that issues any Letter of Credit or Euro Letter of Credit),
Indemnitees, Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agents, the Issuing Lender, the Euro Issuing Lender
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.


 


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


 


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


 


(B)           the
Administrative Agent, the Issuing Lender and the Swingline Lender, provided
that no such consent shall be required for an assignment of (x) any
Revolving Loan Commitment to an assignee that is a Lender with a Revolving Loan
Commitment immediately prior to giving effect to such assignment (y) any Euro
Revolving Loan Commitment to an assignee that is a Lender with a Euro Revolving
Loan Commitment immediately prior to giving effect to such assignment or (z)
all or any portion of a Term Loan or a Euro Term Loan to a Lender, an Affiliate
of a Lender or an Approved Fund;


 


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


 


(A)          except
in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans of any Class, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 (or €5,000,000 in the
case of a Eurocurrency Loan) and after giving affect to such assignment, the
assigning Lender Commitment or Loans shall not be less than $5,000,000 (or
€5,000,000 in the case of a Eurocurrency Loan) unless each of the US Borrower
and the Administrative Agent otherwise consent, provided that no such
consent of the US Borrower shall be required if an Event of Default under
clause (a), (b), (h) or (i) of Section 7.01 has occurred and is
continuing;


 


(B)           each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement;


 


(C)           the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee of $3,500 (which fee shall not be payable by or due or owing from any
Obligor);


 


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


 


(E)           no
assignment shall be made that results in an increase to the Mandatory Cost or
increased liability of any Obligor under Section 2.15 or Section 2.17.


 


Section 10.04
(b) (ii) (C) shall not be construed to prohibit
assignment of a proportionate part of all the assigning Lender’s rights and
obligations in respect of one Class of Commitments or Loans.


 


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For the
purposes of this Section 10.04(b), “Approved Fund” means any
Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is owned, administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an entity that administers or manages a Lender.


 


(iii)          Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Section
2.15, Section 2.16, Section 2.17 and Section 10.03). Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 10.04 shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (c) of this Section.


 


(iv)          Each
of the Administrative Agent, acting for this purpose as an agent of the US
Borrower, and the Euro Administrative Agent, acting for this purpose as an
agent of the Euro Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans, LC Disbursements and Euro LC Disbursements owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agents, the Issuing Lender and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by each Borrower, each
of the Administrative Agents, the Issuing Lender and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.


 


(v)           Upon
its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this Section,
the Administrative Agent shall accept such Assignment and Assumption and record
the information contained therein in the Register and, with respect to the
assignment of any Euro Term Loan or any Euro Revolving Loan, shall notify the
Euro Administrative Agent thereof. No assignment shall be effective for
purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.


 


(c)           (i)  Any Lender may, without the consent of the
Borrowers, the Administrative Agents, the Issuing Lender, the Euro Issuing
Lender, the Euro Swingline Lender or the Swingline Lender, sell participations
to one or more banks or other entities (a “Participant”) in all or a
portion of such Lender’s rights and obligations under this Agreement (including
all or a 


 


103

















 


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


 


(ii)           A Participant shall not be entitled to receive any
greater payment under Section 2.15, Section 2.16, or Section
2.17 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the US Borrower’s prior written
consent (which consent expressly acknowledges any additional obligations of the
Borrowers in respect of Indemnified Taxes or Other Taxes). A Participant shall
not be entitled to the benefits of Section 2.17 unless the Borrower is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.17(e)
as though it were a Lender.


 


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


 


Section 10.05         Survival  All covenants, agreements,
representations and warranties made by any of the Borrowers and Guarantors
herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon
by the other parties hereto and shall survive the execution and delivery of
this Agreement and the making of any Loans and issuance of any Letters of
Credit and Euro Letters of Credit, regardless of any investigation made by any
such other party or on its behalf and notwithstanding that the Administrative
Agent, the Issuing Lender, the Euro Issuing Lender or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit or Euro Letter of 


 


104

















 


Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Section 2.15, Section 2.16, Section
2.17 and Section 10.03 and Article VIII shall survive and
remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit, the Euro Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.


 


Section 10.06         Counterparts;
Integration; Effectiveness  This
Agreement may be executed in counterparts and may be delivered in original or
facsimile form (and by different parties hereto on different counterparts),
each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Agreement and any separate
letter agreements with respect to fees payable to the Administrative Agents
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof. Except as provided in Section
4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.


 


Section 10.07         Severability  Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.


 


Section 10.08         Right
of Setoff  (a)  Each Revolving Credit Lender, Term Lender,
and Swingline Lender and the Issuing Lender and each of its Affiliates (other
than any Euro Revolving Credit Lender, any Euro Term Lender, the Euro
Administrative Agent, the Euro Issuing Lender or the Euro Swingline Lender) is
hereby authorized at any time that an Event of Default shall have occurred and
is continuing and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of the US
Borrower or any US Guarantor under Section 9.01(a)(ii) against any and
all of the obligations of the US Borrower and each such US Guarantor now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each such Lender
under paragraph (a) of this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.


 


(b)           Each
Eurocurrency Lender and each of its Affiliates (other than the Administrative
Agent, the Arranger, the Issuing Lender or any Revolving Credit Lender, Term
Lender or Swingline Lender) is hereby authorized at any time that an Event of
Default shall have occurred and is continuing and from time to time, to the
fullest extent permitted by law, to 


 


105

















 


set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of
the Euro Borrower or any Euro Guarantor against any and all of the obligations
of the Euro Borrower and each Euro Guarantor now or hereafter existing under
this Agreement held by such Lender, irrespective of whether or not such Lender
shall have made any demand under this Agreement and although such obligations
may be unmatured. The rights of each such Lender under paragraph (b) of this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.


 


(c)           Notwithstanding
the foregoing, JPMorgan Chase Bank, National Association, London Branch, in its
capacity as escrow agent under the escrow agreement entered into pursuant to
the Acquisition Agreement shall have no right to set off and apply any deposits
and other obligations at any time owing by it to or for the credit or account
of any Obligor under such escrow agreement against any of the obligations of
such Obligor hereunder.


 


Section 10.09         Governing
Law; Jurisdiction; Consent to Service of Process


 


(a)           This
Agreement shall be construed in accordance with and governed by the law of the
State of New York.


 


(b)           EACH
OF THE BORROWERS AND GUARANTORS HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS,
FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE SUPREME
COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED
STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL
COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING
IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENTS, THE
ISSUING LENDER OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AGAINST THE ANY OF THE BORROWERS OR
GUARANTORS OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.


 


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


 


106

















 


(d)           Each party to this Agreement irrevocably consents
to service of process in the manner provided for notices in Section 10.01.
Nothing in this Agreement will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.


 


Section 10.10         WAIVER
OF JURY TRIAL  EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.


 


Section 10.11         Headings  Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.


 


Section 10.12         Confidentiality.
 Each of the Administrative Agents, the
Issuing Lender, the Euro Issuing Lender and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates’ directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process (provided that in the case of
Information required to be disclosed by a Person pursuant to a subpoena or
similar legal process, such Person shall use reasonable efforts to provide the
US Borrower with prior notice of such required disclosure and the opportunity
to obtain a protective order in respect thereof if no conflict exists with such
Peron’s governmental, regulatory or legal requirements), (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this Agreement or the
enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement, or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to any Borrower and its obligations under the Loan
Documents, (g) with the consent of the US Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the Administrative Agents,
the Issuing Lender or any Lender on a nonconfidential basis from a source other
than any Borrower or any of its respective Subsidiaries. For the purposes of
this Section, “Information” means all information received from any
Borrower or any of its respective Subsidiaries relating to any Borrower, any
such Subsidiary or its respective business, other than any such information
that is available to the Administrative Agents, the Issuing Lender or any
Lender on a nonconfidential basis prior to 


 


107

















 


disclosure by such Borrower or such Subsidiary, as applicable; provided
that, in the case of information received from such Borrower or such Subsidiary
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.


 


(a)           EACH
LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 10.12(a) FURNISHED
TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION
CONCERNING THE US BORROWER AND  ITS
RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS
DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC
INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND
STATE SECURITIES LAWS.


 


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


 


(c)           Notwithstanding
the provisions of Section 10.12(a), or any other provision of this
Agreement or any Loan Document, each of the Administrative Agents, the Issuing
Lender, the Euro Issuing Lender, the Lenders and the Obligors may disclose to
any and all Persons general information that is relevant in order to understand
the tax treatment and tax structure of the transactions contemplated by this
Agreement or any Loan Document. For the avoidance of doubt, the preceding
sentence does not allow for the disclosure of any specific information that is
not otherwise discloseable by reason of Section 10.12(a) and that is not
relevant to understanding the tax treatment and tax structure of the
transactions contemplated by this Agreement, such as (i) the specific identity
of the Borrowers or any of its current or future Affiliates or (ii) any
specific pricing terms or any other specific nonpublic business or financial
information. For purposes of this Section 10.12(c), the terms “tax
treatment” and “tax structure” shall have the meaning provided by Treasury
Regulation Section 1.6011-4.


 


Section 10.13         Interest
Rate Limitation  Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan or reimbursement obligation, together with all fees, charges and other
amounts that are treated as interest on such Loan or reimbursement obligation
under applicable law (collectively the “Charges”), shall exceed the
maximum lawful 


 


108

















 


rate (the “Maximum Rate”) that may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or reimbursement
obligation in accordance with applicable law, the rate of interest payable in
respect of such Loan or reimbursement obligation hereunder, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate and,
to the extent lawful, the interest and Charges that would have been payable in
respect of such Loan or reimbursement obligation but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans, reimbursement
obligations or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount shall have been received by such Lender.


 


Section 10.14         USA
Patriot Act  Each Lender that is
subject to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Act”), hereby
notifies the Borrowers that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the
Borrowers, which information includes the names and addresses of the Borrowers
and other information that will allow such Lender to identify the Borrowers in
accordance with the Act.


 


Section 10.15         Joint
and Several Liability; Limitation.  Except as otherwise expressly provided herein,
the Obligations of the Obligors hereunder and under the Loan Documents for
payment obligations with respect to the Loans shall be several and not joint. Notwithstanding
anything to the contrary herein or under any Loan Documents, no Foreign
Subsidiary or Domestic Subsidiary the assets of which are all or substantially
all comprised of stock or securities in one or more Foreign Subsidiaries shall
have any liability whatsoever in respect of any Obligations of the US Borrower
or any Domestic Subsidiary.


 


109

















 


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


 


 


	
  US BORROWER:

  	
  DYNAMIC
  MATERIALS CORPORATION, a

  
	
   

  	
  Delaware
  corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  : /s/ Richard A.
  Santa

  	
   

  
	
   

  	
  Name:

  	
  Richard A. Santa

  
	
   

  	
  Title:

  	
  Chief Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EURO BORROWER:

  	
  DYNAMIC
  MATERIALS LUXEMBOURG

  
	
   

  	
  2 S.Â R.L.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  : /s/ Richard A.
  Santa

  	
   

  
	
   

  	
  Name:

  	
  Richard A. Santa

  
	
   

  	
  Title:

  	
  Chief Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EURO GUARANTOR:

  	
  DYNAMIC
  MATERIALS LUXEMBOURG

  
	
   

  	
  1 S.Â R.L.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  : /s/ Richard A.
  Santa

  	
   

  
	
   

  	
  Name:

  	
  Richard A. Santa

  
	
   

  	
  Title:

  	
  Chief Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  EURO GUARANTOR:

  	
  BLITZ
  F07-DREIHUNDERT-VIERZEHN GMBH

  
	
   

  	
  (IN THE FUTURE:
  DYNAENERGETICS

  
	
   

  	
  HOLDING GMBH)

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  : /s/ Christian
  Becker

  	
   

  
	
   

  	
  Name:

  	
  Christian Becker

  
	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ADMINISTRATIVE
  AGENT,

  	
  JPMORGAN CHASE
  BANK, N.A.

  
	
  ISSUING BANK,
  SWINGLINE

  	
   

  	
   

  
	
  LENDER AND
  LENDER:

  	
   

  	
   

  
	
   

  	
  By

  	
  : /s/ Brennon J.
  Crist

  	
   

  
	
   

  	
  Name:

  	
  Brennon J. Crist

  
	
   

  	
  Title:

  	
  Vice President

  
									



 

















 


	
  EURO
  ADMINISTRATIVE AGENT,

  	
   

  	
  J.P. MORGAN
  EUROPE LIMITED

  
	
  EURO ISSUING
  BANK, EURO

  	
   

  	
   

  
	
  SWINGLINE LENDER
  AND LENDER:

  	
   

  	
   

  
	
   

  	
  By

  	
  : /s/ Kathryn
  Jepson

  	
   

  
	
   

  	
  Name:

  	
  Kathryn Jepson

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SOLE BOOKRUNNER,

  	
  JPMORGAN
  SECURITIES INC.

  
	
  AND LEAD
  ARRANGER:

  	
   

  	
   

  
	
   

  	
  By

  	
  : /s/ Keith
  Winzenried

  	
   

  
	
   

  	
  Name:

  	
  Keith Winzenried

  
	
   

  	
  Title:

  	
  Executive
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LENDER:

  	
  BANK OF AMERICA,
  N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  : /s/ David R.
  Barney

  	
   

  
	
   

  	
  Name:

  	
  David R. Barney

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LENDER:

  	
  BANK OF THE WEST

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  : /s/ Mark
  Francis

  	
   

  
	
   

  	
  Name:

  	
  Mark Francis

  
	
   

  	
  Title:

  	
  Senior Portfolio
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LENDER:

  	
  KEY BANK
  NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  : /s/ Michelle
  Bushey

  	
   

  
	
   

  	
  Name:

  	
  Michelle Bushey

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LENDER:

  	
  U.S. BANK, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  : /s/ Gregory J.
  Blanchard

  	
   

  
	
   

  	
  Name:

  	
  Gregory J.
  Blanchard

  
	
   

  	
  Title:

  	
  Vice President

  
							



 

















 


	
  LENDER:

  	
  VECTRA BANK
  COLORADO,

  
	
   

  	
  NATIONAL
  ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  : /s/ Bradley D.
  Elliot

  	
   

  
	
   

  	
  Name:

  	
  Bradley D.
  Elliot

  
	
   

  	
  Title:

  	
  Assistant Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LENDER:

  	
  WELLS FARGO
  BANK, NATIONAL

  
	
   

  	
  ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  : /s/ Kenneth D.
  Brown

  	
   

  
	
   

  	
  Name:

  	
  Kenneth D. Brown

  
	
   

  	
  Title:

  	
  Vice President