Exhibit 4.1


 


EXECUTION VERSION


 




 





$2,925,000,000



AMENDED AND RESTATED CREDIT AGREEMENT



dated as of August 25, 2008



among



THE MANITOWOC COMPANY, INC.



The Subsidiary Borrowers Party Hereto



The Lenders Party Hereto



and


 


JPMORGAN CHASE BANK, N.A.,

as Administrative Agent


 


DEUTSCHE BANK AG NEW YORK BRANCH

and

MORGAN STANLEY SENIOR FUNDING, INC.,

as Syndication Agents


 


BNP PARIBAS

as Documentation Agent




 





 


J.P. MORGAN SECURITIES INC.,

DEUTSCHE BANK SECURITIES INC.,

MORGAN STANLEY SENIOR FUNDING, INC.,

BNP PARIBAS SECURITIES CORP.,

Joint Lead Arrangers and Joint Bookrunners


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  SECTION 1.01.

  	
   

  	
  Defined Terms

  	
   

  	
  1

  
	
  SECTION 1.02.

  	
   

  	
  Classification of Loans and Borrowings

  	
   

  	
  36

  
	
  SECTION 1.03.

  	
   

  	
  Terms Generally

  	
   

  	
  36

  
	
  SECTION 1.04. 

  	
   

  	
  Accounting Terms; GAAP

  	
   

  	
  36

  
	
  SECTION 1.05.

  	
   

  	
  Foreign Currency Calculations

  	
   

  	
  37

  
	
  SECTION 1.06.

  	
   

  	
  Redenomination of Certain Foreign Currencies

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
  The Credits

  	
   

  	
  38

  
	
  SECTION 2.01.

  	
   

  	
  Commitments

  	
   

  	
  38

  
	
  SECTION 2.02.

  	
   

  	
  Loans and Borrowings

  	
   

  	
  38

  
	
  SECTION 2.03.

  	
   

  	
  Requests for Borrowings

  	
   

  	
  40

  
	
  SECTION 2.04.

  	
   

  	
  Alternate Currency Loans

  	
   

  	
  41

  
	
  SECTION 2.05.

  	
   

  	
  Swingline Loans

  	
   

  	
  44

  
	
  SECTION 2.06.

  	
   

  	
  Letters of Credit

  	
   

  	
  45

  
	
  SECTION 2.07. 

  	
   

  	
  Funding of Borrowings

  	
   

  	
  50

  
	
  SECTION 2.08.

  	
   

  	
  Interest Elections

  	
   

  	
  50

  
	
  SECTION 2.09.

  	
   

  	
  Termination and Reduction of Commitments; Increase of Commitments

  	
   

  	
  52

  
	
  SECTION 2.10.

  	
   

  	
  Repayment of Loans; Evidence of Debt

  	
   

  	
  53

  
	
  SECTION 2.11.

  	
   

  	
  Amortization of Term Loans

  	
   

  	
  54

  
	
  SECTION 2.12.

  	
   

  	
  Prepayment of Loans

  	
   

  	
  55

  
	
  SECTION 2.13.

  	
   

  	
  Fees

  	
   

  	
  58

  
	
  SECTION 2.14.

  	
   

  	
  Interest

  	
   

  	
  59

  
	
  SECTION 2.15.

  	
   

  	
  Alternate Rate of Interest

  	
   

  	
  60

  
	
  SECTION 2.16.

  	
   

  	
  Increased Costs

  	
   

  	
  60

  
	
  SECTION 2.17.

  	
   

  	
  Break Funding Payments

  	
   

  	
  62

  
	
  SECTION 2.18.

  	
   

  	
  Taxes

  	
   

  	
  62

  
	
  SECTION 2.19.

  	
   

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

  	
   

  	
  66

  
	
  SECTION 2.20.

  	
   

  	
  Mitigation Obligations; Replacement of Lenders

  	
   

  	
  68

  
	
  SECTION 2.21.

  	
   

  	
  Subsidiary Borrowers

  	
   

  	
  69

  
	
  SECTION 2.22.

  	
   

  	
  Additional Reserve Costs

  	
   

  	
  70

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
  Representations and Warranties

  	
   

  	
  71

  
	
  SECTION 3.01.

  	
   

  	
  Organization; Powers

  	
   

  	
  71

  
	
  SECTION 3.02.

  	
   

  	
  Authorization; Enforceability

  	
   

  	
  71

  
	
  SECTION 3.03.

  	
   

  	
  Governmental Approvals; No Conflicts

  	
   

  	
  71

  
	
  SECTION 3.04.

  	
   

  	
  Financial Condition; No Material Adverse Change

  	
   

  	
  72

  
	
  SECTION 3.05.

  	
   

  	
  Properties

  	
   

  	
  72

  
	
  SECTION 3.06.

  	
   

  	
  Litigation and Environmental Matters

  	
   

  	
  72

  
	
  SECTION 3.07.

  	
   

  	
  Compliance with Laws and Agreements

  	
   

  	
  73

  
	
  SECTION 3.08.

  	
   

  	
  Investment Company Status

  	
   

  	
  73

  
	
  SECTION 3.09. 

  	
   

  	
  Taxes

  	
   

  	
  73

  
	
  SECTION 3.10.

  	
   

  	
  ERISA; Foreign Pension Plans

  	
   

  	
  73

  
							



 


i

















 


	
  SECTION 3.11.

  	
   

  	
  Disclosure

  	
   

  	
  74

  
	
  SECTION 3.12. 

  	
   

  	
  The Security Documents

  	
   

  	
  74

  
	
  SECTION 3.13.

  	
   

  	
  Subsidiaries

  	
   

  	
  75

  
	
  SECTION 3.14.

  	
   

  	
  Indebtedness

  	
   

  	
  75

  
	
  SECTION 3.15.

  	
   

  	
  Insurance

  	
   

  	
  75

  
	
  SECTION 3.16.

  	
   

  	
  Regulation U

  	
   

  	
  75

  
	
  SECTION 3.17.

  	
   

  	
  Solvency

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
  Conditions

  	
   

  	
  76

  
	
  SECTION 4.01.

  	
   

  	
  Effectiveness

  	
   

  	
  76

  
	
  SECTION 4.02.

  	
   

  	
  Initial Funding

  	
   

  	
  77

  
	
  SECTION 4.03.

  	
   

  	
  Each Credit Event

  	
   

  	
  78

  
	
  SECTION 4.04.

  	
   

  	
  Conditions during Certain Funds Period

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  	
  Affirmative Covenants

  	
   

  	
  80

  
	
  SECTION 5.01.

  	
   

  	
  Financial Statements and Other Information

  	
   

  	
  80

  
	
  SECTION 5.02.

  	
   

  	
  Notices of Material Events

  	
   

  	
  82

  
	
  SECTION 5.03.

  	
   

  	
  Existence; Conduct of Business

  	
   

  	
  82

  
	
  SECTION 5.04.

  	
   

  	
  Payment of Obligations

  	
   

  	
  82

  
	
  SECTION 5.05.

  	
   

  	
  Maintenance of Properties; Insurance

  	
   

  	
  82

  
	
  SECTION 5.06.

  	
   

  	
  Books and Records; Inspection Rights

  	
   

  	
  83

  
	
  SECTION 5.07.

  	
   

  	
  Compliance with Laws and Material Contractual Obligations

  	
   

  	
  83

  
	
  SECTION 5.08.

  	
   

  	
  Use of Proceeds and Letters of Credit

  	
   

  	
  83

  
	
  SECTION 5.09.

  	
   

  	
  Compliance with Environmental Laws

  	
   

  	
  83

  
	
  SECTION 5.10.

  	
   

  	
  Further Assurances; etc

  	
   

  	
  84

  
	
  SECTION 5.11.

  	
   

  	
  Ownership of Subsidiaries; etc

  	
   

  	
  86

  
	
  SECTION 5.12.

  	
   

  	
  Margin Regulations

  	
   

  	
  87

  
	
  SECTION 5.13.

  	
   

  	
  Additional Guarantors and Collateral

  	
   

  	
  87

  
	
  SECTION 5.14.

  	
   

  	
  The Scheme

  	
   

  	
  89

  
	
  SECTION 5.15.

  	
   

  	
  The Offer

  	
   

  	
  90

  
	
  SECTION 5.16.

  	
   

  	
  Rate Hedging Obligations

  	
   

  	
  93

  
	
  SECTION 5.17.

  	
   

  	
  Rated Credit Facilities

  	
   

  	
  93

  
	
  SECTION 5.18.

  	
   

  	
  Pensions

  	
   

  	
  93

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
  Negative Covenants

  	
   

  	
  93

  
	
  SECTION 6.01.

  	
   

  	
  Indebtedness

  	
   

  	
  93

  
	
  SECTION 6.02.

  	
   

  	
  Liens

  	
   

  	
  96

  
	
  SECTION 6.03.

  	
   

  	
  Merger, Purchase or Sale of Assets, Change in Business

  	
   

  	
  99

  
	
  SECTION 6.04.

  	
   

  	
  Restricted Payments

  	
   

  	
  101

  
	
  SECTION 6.05.

  	
   

  	
  Advances, Investments and Loans

  	
   

  	
  102

  
	
  SECTION 6.06.

  	
   

  	
  Transactions with Affiliates

  	
   

  	
  105

  
	
  SECTION 6.07.

  	
   

  	
  Minimum Consolidated Interest Coverage Ratio

  	
   

  	
  106

  
	
  SECTION 6.08.

  	
   

  	
  Maximum Consolidated Total Leverage Ratio

  	
   

  	
  106

  
	
  SECTION 6.09.

  	
   

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

  	
   

  	
  106

  
							



 


ii

















 


	
  SECTION 6.10.

  	
   

  	
  Restrictive Agreements

  	
   

  	
  107

  
	
  SECTION 6.11.

  	
   

  	
  End of Fiscal Years; Fiscal Quarters

  	
   

  	
  107

  
	
  SECTION 6.12.

  	
   

  	
  Limitation on Issuance of Capital Stock

  	
   

  	
  107

  
	
  SECTION 6.13.

  	
   

  	
  Limitation on Creation of Subsidiaries

  	
   

  	
  108

  
	
  SECTION 6.14.

  	
   

  	
  Rental Fleet

  	
   

  	
  108

  
	
  SECTION 6.15.

  	
   

  	
  Sale-Leaseback Restriction

  	
   

  	
  108

  
	
  SECTION 6.16.

  	
   

  	
  Buy-Back Limitation

  	
   

  	
  108

  
	
  SECTION 6.17.

  	
   

  	
  Swap Agreements

  	
   

  	
  108

  
	
  SECTION 6.18.

  	
   

  	
  BPGR

  	
   

  	
  109

  
	
  SECTION 6.19.

  	
   

  	
  Manitowoc Asia Holdings

  	
   

  	
  109

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
  Events of Default

  	
   

  	
  109

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  	
  The Administrative Agent

  	
   

  	
  112

  
	
  SECTION 8.01.

  	
   

  	
  The Administrative Agent

  	
   

  	
  112

  
	
  SECTION 8.02.

  	
   

  	
  Administrative Agent as UK Security Trustee.

  	
   

  	
  115

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  	
  Miscellaneous

  	
   

  	
  116

  
	
  SECTION 9.01.

  	
   

  	
  Notices

  	
   

  	
  116

  
	
  SECTION 9.02.

  	
   

  	
  Waivers; Amendments

  	
   

  	
  117

  
	
  SECTION 9.03.

  	
   

  	
  Expenses; Indemnity; Damage Waiver

  	
   

  	
  119

  
	
  SECTION 9.04.

  	
   

  	
  Successors and Assigns

  	
   

  	
  120

  
	
  SECTION 9.05.

  	
   

  	
  Survival

  	
   

  	
  123

  
	
  SECTION 9.06.

  	
   

  	
  Counterparts; Integration; Effectiveness

  	
   

  	
  124

  
	
  SECTION 9.07.

  	
   

  	
  Severability

  	
   

  	
  124

  
	
  SECTION 9.08.

  	
   

  	
  Right of Set-off

  	
   

  	
  124

  
	
  SECTION 9.09.

  	
   

  	
  Governing Law; Jurisdiction; Consent to Service of Process

  	
   

  	
  124

  
	
  SECTION 9.10.

  	
   

  	
  WAIVER OF JURY TRIAL

  	
   

  	
  125

  
	
  SECTION 9.11.

  	
   

  	
  Headings

  	
   

  	
  125

  
	
  SECTION 9.12.

  	
   

  	
  Confidentiality

  	
   

  	
  125

  
	
  SECTION 9.13.

  	
   

  	
  Interest Rate Limitation

  	
   

  	
  126

  
	
  SECTION 9.14.

  	
   

  	
  USA PATRIOT Act

  	
   

  	
  127

  
	
  SECTION 9.15.

  	
   

  	
  Conversion of Currencies

  	
   

  	
  127

  
	
  SECTION 9.16.

  	
   

  	
  Syndication Agent and Documentation Agents

  	
   

  	
  127

  
	
  SECTION 9.17.

  	
   

  	
  Amendment and Restatement.

  	
   

  	
  128

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  	
  Collection Action Mechanism

  	
   

  	
  128

  
	
  SECTION 10.01.

  	
   

  	
  Implementation of CAM

  	
   

  	
  128

  
							



 


iii

















 


	
  SCHEDULES:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1.01

  	
   

  	
  Pricing Schedule

  	
   

  	
   

  
	
  Schedule 1.02

  	
   

  	
  Existing Intercompany Notes

  	
   

  	
   

  
	
  Schedule 1.03

  	
   

  	
  Supplemental Sale Transaction

  	
   

  	
   

  
	
  Schedule 1.04

  	
   

  	
  Funding Transactions

  	
   

  	
   

  
	
  Schedule 2.01

  	
   

  	
  Commitments

  	
   

  	
   

  
	
  Schedule 2.04

  	
   

  	
  Alternate Currency Lenders

  	
   

  	
   

  
	
  Schedule 2.22

  	
   

  	
  Mandatory Cost Rate

  	
   

  	
   

  
	
  Schedule 3.01

  	
   

  	
  Good Standing

  	
   

  	
   

  
	
  Schedule 3.05

  	
   

  	
  Real Property

  	
   

  	
   

  
	
  Schedule 3.10

  	
   

  	
  ERISA

  	
   

  	
   

  
	
  Schedule 3.13

  	
   

  	
  Subsidiaries

  	
   

  	
   

  
	
  Schedule 3.15

  	
   

  	
  Insurance

  	
   

  	
   

  
	
  Schedule 4.02

  	
   

  	
  Real Property

  	
   

  	
   

  
	
  Schedule 6.01

  	
   

  	
  Existing Indebtedness

  	
   

  	
   

  
	
  Schedule 6.02

  	
   

  	
  Existing Liens

  	
   

  	
   

  
	
  Schedule 6.05

  	
   

  	
  Existing Investments

  	
   

  	
   

  
	
  Schedule 6.10

  	
   

  	
  Existing Restrictions

  	
   

  	
   

  
	
  Schedule 9.02

  	
   

  	
  Specified Provisions

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  Form of Assignment and Assumption

  	
   

  	
   

  
	
  Exhibit B

  	
   

  	
  Form of Designation Letter

  	
   

  	
   

  
	
  Exhibit C

  	
   

  	
  Form of Intercompany Note

  	
   

  	
   

  
	
  Exhibit D

  	
   

  	
  Form of Termination Letter

  	
   

  	
   

  
	
  Exhibit E

  	
   

  	
  Form of Mortgage

  	
   

  	
   

  
	
  Exhibit F

  	
   

  	
  Form of Leasehold Mortgage

  	
   

  	
   

  
	
  Exhibit G

  	
   

  	
  Form of Real Estate Counsel Opinion

  	
   

  	
   

  
	
  Exhibit H

  	
   

  	
  Form of Reaffirmation

  	
   

  	
   

  



 


iv
















 


AMENDED AND RESTATED CREDIT AGREEMENT dated
as of August 25, 2008, among THE MANITOWOC COMPANY, INC., the Subsidiary
Borrowers party hereto, the LENDERS party hereto, and JPMORGAN CHASE BANK,
N.A., as Administrative Agent.


 


The parties hereto agree as follows:


 


RECITALS


 


A.             The Borrower, the Subsidiary Borrowers party
thereto, the Administrative Agent and the Initial Lenders are party to that
certain Credit Agreement, dated as of April 14, 2008 (as amended by
Amendment No.1 and Amendment No. 2 thereto, the “Original Credit
Agreement”).


 


B.             The Borrower, the Subsidiary Borrowers party
thereto, the Administrative Agent and the Initial Lenders wish to amend and
restate the Original Credit Agreement on the terms and conditions set forth
below to reallocate the existing Commitments, add a new tranche of term loans
and make the other changes to the Original Credit Agreement evidenced hereby.


 


C.             The financial institutions identified on Schedule
2.01 hereto which are not Initial Lenders wish to become “Lenders” hereunder
and accept and assume the obligations of “Lenders” hereunder with the
Commitments specified on Schedule 2.01 hereto.


 


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


 


ARTICLE I


 


Definitions


 


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


 


“2006 Companies Act” means the
Companies Act 2006 of England and Wales.


 


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


 


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


 

















 


“Acquisition” means the proposed
acquisition by Newco of, as applicable, (a) 100% of the Target Shares
pursuant to the Scheme or (b) up to 100% of the Target Shares pursuant to
an Offer.


 


“Acquisition Documents” means (a) a
copy of the Press Release, (b) in the case of an Offer, the Offer Document
and a copy of any revised Offer Document or supplementary circular sent by or
on behalf of Newco to shareholders in the Target, if applicable, and (c) in
the case of a Scheme a copy of the Scheme Document, the Implementation
Agreement and a copy of the certificate of registration issued by the registrar
of companies evidencing registration of the order and minutes (approved by the
court) and giving effect to the reduction in the Target’s share capital under Section 138
of the Companies Act.


 


“Acquisition Parties” means Newco and
the Borrower.


 


“Additional Security Documents” means
security documents executed by a Credit Party pursuant to Section 2.21(a),
Section 5.10 or Section 5.13.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2

















 


“Alternate Base Rate” means, for any
day, a rate per annum equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate,
the Base CD Rate or the Federal Funds Effective Rate shall be effective from
and including the effective date of such change in the Prime Rate, the Base CD
Rate or the Federal Funds Effective Rate, respectively; provided, however,
that in no event shall the Alternate Base Rate with respect to the Term B Loan
at any time be less than 4.50% per annum.


 


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


 


“Alternate Currency Fronting Lender”
means JPMorgan.


 


“Alternate Currency Lenders” means (a) the
Alternate Currency Fronting Lender and (b) solely with respect to
Alternate Currency Loans as to which any other Lender is deemed to be an
Alternate Currency Lender pursuant to Section 2.04(1), each such other
Lender.


 


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


 


“Announcement Date” means the date of
the Press Release.


 


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


 


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


 


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


 


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


 


“Applicable Prepayment Percentage”
means (a) in the case of a Prepayment Event described in clause (c) of
the definition of the term “Prepayment Event” (but only with respect to the
Term A Loan and Term B Loan) or a prepayment required by Section 2.12(d),
a percentage equal to (i) 50% at any time when the Consolidated Total
Leverage Ratio is greater than or equal to 3.0:1.0, and (ii) 0% at any
other time, and (b) in the case of any other Prepayment Event, 100%.


 


3

















 


“Applicable Rate” means, for any day, (a) with
respect to any ABR Loan or Eurocurrency Loan (other than the Term B Loan), or
with respect to the commitment fees payable hereunder, as the case may be, the
applicable rate per annum set forth in Schedule 1.01 under the caption “ABR
Spread”, “Eurocurrency Spread” or “Commitment Fee Rate”, as the case may be,
based upon the Consolidated Total Leverage Ratio and (b) with respect to
the Term B Loan, (i) 3.50% per annum with respect to Eurocurrency Loans
and (ii) 2.00% per annum with respect to ABR Loans; provided, however,
that such rates with respect to the Term B Loan shall be 3.25% per annum with
respect to Eurocurrency Loans and 1.75% per annum with respect to ABR Loans
during any time when either Level I Status or Level II Status (in each case as
defined on Schedule 1.01) exists, with such status being determined as set
forth on Schedule 1.01.


 


“Applicable Revolver Percentage”
means, with respect to any Lender, the percentage of the total Revolving
Commitments represented by such Lender’s Revolving Commitment. If the Revolving
Commitments have terminated or expired, the Applicable Revolver Percentages
shall be determined based upon the Revolving Credit Exposure of the Lenders.


 


“Applicable Term A Percentage” means,
with respect to any Lender, the percentage of the total Term A Loans and unused
Term A Commitments held by such Lender.


 


“Applicable Term B Percentage” means,
with respect to any Lender, the percentage of the total Term B Loans and unused
Term B Commitments held by such Lender.


 


“Applicable Term X Percentage” means,
with respect to any Lender, the percentage of the total Term X Loans and unused
Term X Commitments held by such Lender.


 


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


 


“Arrangers” means J.P. Morgan
Securities Inc., Deutsche Bank Securities Inc., Morgan Stanley Senior Funding, Inc.
and BNP Paribas Securities Corp. in their capacity as joint lead arrangers of
this credit facility.


 


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


 


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


 


4

















 


“Availability Period” means (a) with
respect to Revolving Loans, the period from and including the Initial Borrowing
Date to but excluding the earlier of the Revolving Maturity Date and the date
of termination of the Revolving Commitments and (b) with respect to any
Term Loans, the period from and including the Initial Borrowing Date to and
including the date of termination of the applicable Term 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.


 


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


 


“Borrowers” means the Borrower and
each Subsidiary Borrower.


 


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


 


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


 


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


 


“Business Day” means any day that is
not a Saturday, Sunday or other day on which commercial banks in New York City
are authorized or required by law to remain closed; provided that, when
used in connection with a Eurocurrency Loan, the term “Business Day”
shall also exclude (a) if such Eurocurrency Loan is denominated in
Dollars, any day on which banks are not open for dealings in Dollar deposits in
the London interbank market, (b) if such Eurocurrency Loan is denominated
in Euros, which is not a Target Day and (c) if such Eurocurrency Loan is
denominated in a Foreign Currency other than Euros, any day on which commercial
banks and the London foreign exchange market do not settle payments in the
principal financial center where such Foreign Currency is cleared and settled
as reasonably determined by the Administrative Agent.


 


“Buy-Back Arrangements” means
arrangements whereby the Borrower or a Subsidiary of the Borrower in the
ordinary course of business enters into an agreement with a customer or third
party financing company (a) to guarantee to repurchase crane products at a


 


5

















 


later date at an agreed upon price or (b) to
guarantee a minimum crane product residual value at the end of an underlying
finance term for same including, without limitation, guarantees of minimum
crane product residual value in connection with Sale-Leaseback Transactions.


 


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


 


“CAM” means the mechanism for the
allocation and exchange of interests in the Loans and collections thereunder established
under Article X.


 


“CAM Exchange” means the exchange of
the Lenders’ interests provided for in Section 10.1.


 


“CAM Exchange Date” means the first
date after the Initial Borrowing Date on which there shall occur any event
described in paragraph (h) or (i) of Article VII with respect to
any of the Borrowers.


 


“CAM Percentage” means, as to each
Lender, a fraction, of which (a) the numerator shall be the aggregate
Designated Obligations owed to such Lender immediately prior to the CAM
Exchange Date and (b) the denominator shall be the aggregate Designated
Obligations owed to all the Lenders immediately prior to the CAM Exchange Date.
For purposes of computing each Lender’s CAM Percentage, (a) all Designated
Obligations which shall be denominated in a Foreign Currency shall be
translated into Dollars at the Exchange Rate in effect on the CAM Exchange Date
and (b) each Lender shall be deemed to hold its Applicable Revolver
Percentage of all outstanding Swingline Loans, Alternate Currency Loans and L/C
Disbursements.


 


“Canadian Dollar” means the lawful
currency of Canada.


 


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


 


“Cash Equivalents” means:


 


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


 


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


 


6

















 


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


 


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


 


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


 


“Certain Funds Loan” means a Loan the
proceeds of which are designated by the Borrower to be used for, and are
exclusively used for, funding the acquisition by Newco of Target Shares
(including any options held in such Target Shares) pursuant to the Acquisition
(including by using the procedure under Section 979 of the 2006 Companies
Act) or refinancing Target Debt or existing Indebtedness under the Existing
Credit Agreement.


 


“Certain Funds Period” means the
period from the Announcement Date until:


 


(a)           in the case of the Scheme, the earliest of:


 


(i)              the date falling 35 days after the Scheme Effective
Date;


 


(ii)             the date of the lapse or withdrawal of the Scheme
or the rejection of it or the reduction of capital by the court;


 


(iii)            November 10, 2008; and


 


(b)           in the case of the Offer, the earliest of:


 


(i)              the date of the lapse or withdrawal of the Offer;


 


(ii)             the date falling 4 months and 35 days after the
Posting Date if at the end of the period ending on the date falling 4 months
after the Posting Date Newco is not entitled to apply the provisions of Section 979
of the 2006 Companies Act in relation to the Target Shares;


 


(iii)            if on or before the date falling 4 months after the
Posting Date Newco is entitled to apply the provisions of Section 979 of
the 2006 Companies Act in relation to the Target Shares, the date falling 60
days after such entitlement first arose;


 


(iv)            35 days after the date the Offer is declared wholly
unconditional; and


 


(v)             November 10, 2008.


 


7

















 


“Change in Control” means (a) the
acquisition of ownership, directly or indirectly, beneficially or of record, by
any Person or group (within the meaning of the Securities Exchange Act of 1934
and the rules of the Securities and Exchange Commission thereunder as in
effect on the Effective Date) of Interests representing more than 30% of the
aggregate ordinary voting power represented by the issued and outstanding
Equity Interests of the Borrower, (b) occupation of a majority of the
seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were neither (i) nominated by the board of directors of the
Borrower nor (ii) appointed by directors so nominated, (c) the
acquisition of direct or indirect Control of the Borrower by any Person or
group, (d) a “Change of Control” as defined in the Senior Note Documents, (e) the
Borrower ceasing to own directly or indirectly 100% of the outstanding Equity
Interests in Newco or (f) after the Unconditional Date, Newco ceasing to
own directly 100% of the Equity Interests in Target or (solely in the case of
the Offer) (i) Newco ceasing to own directly at least the number of shares
of the Target owned as of the Unconditional Date, or (ii) (after the date
falling 42 days after the date on which Newco was entitled to apply the
provisions of Section 979 of the 2006 Companies Act) Newco ceasing to own
directly 100% of the outstanding Equity Interests of the Target.


 


“Change in Law” means (a) the
adoption of any law, rule or regulation after the date of this Agreement, (b) any
change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this
Agreement or (c) compliance by any Lender or the Issuing Bank (or, for
purposes of Section 2.16(b), by any lending office of such Lender or by
such Lender’s or the Issuing Bank’s holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.


 


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


 


“Clean-up Date” shall have the meaning
assigned to such term in Article VII. 


 


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


 


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


 


“Collateral Agent” means the
Administrative Agent acting as collateral agent for the Secured Creditors
pursuant to the Security Documents, including as collateral agent under the US
Security Agreement, the US Pledge Agreement and the French Pledge Agreements,
as UK Security Trustee under the UK Security Agreement and in a similar
capacity under other Security Documents.


 


“Commitment” means either a Revolving
Commitment or a Term Commitment.


 


“Companies Act” means the Companies
Act 1985 of England and Wales.


 


8

















 


“Consolidated Capital Expenditures”
means, for any Person, for any period, the aggregate of all expenditures
(whether paid in cash or accrued as liabilities and including in all events all
Capital Lease Obligations but excluding any capitalized interest with respect
thereto) by such Person and its subsidiaries during that period that, in
conformity with GAAP, are or are required to be included in the property, plant
or equipment reflected in the consolidated balance sheet of such Person.


 


“Consolidated Current Assets” means,
with respect to any Person as at any date of determination, the total assets of
such Person and its consolidated subsidiaries which should properly be
classified as current assets on a consolidated balance sheet of such Person and
its consolidated subsidiaries in accordance with GAAP.


 


“Consolidated Current Liabilities”
means, with respect to any Person as at any date of determination, the total
liabilities of such Person and its consolidated subsidiaries which should
properly be classified as current liabilities (other than the current portion
of any Loans) on a consolidated balance sheet of such Person and its
consolidated subsidiaries in accordance with GAAP.


 


“Consolidated EBIT” means, for any
period, Consolidated Net Income from continuing operations for such period
before deducting therefrom Consolidated Interest Expense for such period (to
the extent deducted in arriving at Consolidated Net Income for such period) and
provision for taxes based on income (including foreign withholding taxes
imposed on interest or dividend payments and state single business, unitary or
similar taxes imposed on net income) that were included in arriving at
Consolidated Net Income for such period and without giving effect, without
duplication, to (a) any extraordinary gains, extraordinary losses or other
extraordinary non-cash charges or benefits, (b) any charges arising out of
prepayments of the Senior Notes, (c) any gains or losses from sales of
assets other than from sales of inventory in the ordinary course of business, (d) fees,
expenses and charges incurred or recorded (i) prior to December 31,
2008 in connection with the Acquisition, the Transactions or Divestiture
Transactions up to an aggregate amount of $25,000,000 or (e) fees,
expenses and charges incurred or recorded after December 31, 2008 and
prior to December 31, 2009 in connection with Divestiture Transactions.


 


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


 


“Consolidated Indebtedness” means, at
any time, an amount equal to (a) the sum of (without duplication) (i) the
aggregate stated balance sheet amount of all Indebtedness of the Borrower and
its Subsidiaries as would be required to be reflected on the liability side of
a balance sheet of such Person at such time in accordance with GAAP as
determined on a


 


9

















 


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


 


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


 


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


 


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


 


“Consolidated Senior Indebtedness”
means, at any time, the amount of all Consolidated Indebtedness at such time,
less the aggregate principal amount of all such Indebtedness outstanding at
such time which is subordinated to the Obligations on customary market
subordination terms reasonably satisfactory to the Administrative Agent.


 


10
















 


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


 


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


 


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


 


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


 


“Contribution Notice” means a
contribution notice issued by the Pensions Regulator under Section 38 or Section 47
of the Pensions Act 2004 of England and Wales.


 


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


 


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


 


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


 


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


 


“Designated Obligations” means all
Obligations of the Credit Parties in respect of accrued and unpaid (a) principal
of and interest on the Loans, (b) unreimbursed L/C Disbursements and
interest thereon and (c) fees pursuant to Section 2.13, whether or
not the same shall at the time of any determination be due and payable under
the terms of the Credit Documents.


 


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


 


“Divestiture Transactions” means
divestitures of assets required by applicable law or Governmental Authorities
as a condition of, or in connection with, the Acquisition.


 


11

















 


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


 


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


 


“Domestic Credit Party” means a Credit
Party which is not a Foreign Subsidiary.


 


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


 


“EC Merger Regulation” means the
Council Regulation (EC) 139/2004 (as amended).


 


“Effective Date” means the date on
which the conditions specified in Section 4.01 were satisfied (or waived
in accordance with Section 9.02), such date being April 14, 2008.


 


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


 


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


 


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


 


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


 


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


 


12

















 


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


 


“ERISA Event” means (a) any
“reportable event”, as defined in Section 4043 of ERISA or the regulations
issued thereunder with respect to a Plan (other than an event for which the 30
day notice period is waived), (b) the existence with respect to any Plan
of an “accumulated funding deficiency” (as defined in Section 412 of the
Code or Section 302 of ERISA), whether or not waived, (c) the filing
pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan, (d) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan, (e) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan, (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.


 


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


 


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


 


“European Commission” means the
institution responsible for regulating competition in Europe.


 


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


 


“Excess Cash Flow” means, without
duplication, for the Borrower and its Subsidiaries for any period for which
such amount is being determined:


 


(a)           Consolidated Net Income of the Borrower and its Subsidiaries
adjusted to exclude any amount of gain that both (i) is included in
Consolidated Net Income and (ii) results in Net Proceeds actually applied
to the prepayment of the Loans pursuant to Section 2.12(c), plus


 


(b)           the amount of depreciation, amortization of intangibles,
deferred taxes and other non-cash expenses (other than any deductions which (or
should) represent the accrual of a reserve for the payment of cash charges in
any future period or amortization of a prepaid cash expense that was paid in a
prior period) which, pursuant to GAAP, were deducted in determining such
Consolidated Net Income of the Borrower and its Subsidiaries, plus


 


13

















 


(c)           the amount by which working capital for such period decreased
(i.e., the decrease in Consolidated Current Assets (excluding cash, Cash
Equivalents and Foreign Cash Equivalents) of the Borrower and its Subsidiaries
minus Consolidated Current Liabilities (excluding (i) changes in current
liabilities for borrowed money and (ii) cash, Cash Equivalents or Foreign
Cash Equivalents which are Net Proceeds required to be applied to the
prepayment of the Loans pursuant to Section 2.12(c)) of the Borrower and
its Subsidiaries from the beginning to the end of such period), minus


 


(d)           the amount by which working capital for such period
increased (i.e., the increase in Consolidated Current Assets (excluding cash,
Cash Equivalents and Foreign Cash Equivalents) of the Borrower and its
Subsidiaries minus Consolidated Current Liabilities (excluding (i) changes
in current liabilities for borrowed money and (ii) cash, Cash Equivalents
or Foreign Cash Equivalents which are Net Proceeds required to be applied to
the prepayment of the Loans pursuant to Section 2.12(c)) of the Borrower
and its Subsidiaries from the beginning to the end of such period), minus


 


(e)           the amount of Consolidated Capital Expenditures of the
Borrower and its Subsidiaries that are paid other than from the proceeds of
Borrowings in such period, minus


 


(f)            scheduled repayments of principal under the Term Loans
pursuant to Section 2.11 made during such period.


 


For purposes of the foregoing and without
duplication, Consolidated Net Income will exclude (x) all losses on the
sale of capital assets or losses which are out of the ordinary course of
business and (y) all write-downs of capital assets.


 


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


 


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


 


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


 


14

















 


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


 


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


 


“Excluded Taxes” means, with respect
to the Administrative Agent, any Lender, the Issuing Bank or any other
recipient of any payment to be made by or on account of any obligation of the
Borrowers hereunder, (a) any Tax that would not have been imposed by a
jurisdiction but for the present or former connection (other than a connection
arising from entering this Agreement or any other agreement contemplated
hereby, receiving of payment under this Agreement or other agreement
contemplated hereby, or engaging in any other transaction contemplated in this
Agreement or another agreement contemplated hereby) between the jurisdiction
and the recipient (or, in the event of a recipient that is a partnership,
trust, estate, or any other person that is treated for purposes of such Tax as
not being the person to whom the payment is attributable, any Tax imposed that
would have been imposed by a jurisdiction but for the present or former
connection (other than a connection arising from entering this Agreement or any
other agreement contemplated hereby, receiving of payment under this Agreement
or any other agreement contemplated hereby) between the jurisdiction and (i) or
member, beneficiary, fiduciary of such recipient or (ii) or other person
to whom the payment is attributable) and (b) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under Section 2.20(b)),
any withholding tax that is imposed on amounts payable to such Foreign Lender
at the time such Foreign Lender becomes a party to this Agreement (or
designates a new lending office) or is attributable to such Foreign Lender’s
failure to comply with Section 2.18(e), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrowers with respect to such withholding tax pursuant to Section 2.18(a).


 


“Existing Agent” means JPMorgan Chase
Bank, N.A., as administrative agent under the Existing Credit Agreement, and
any replacement or successor administrative agent thereunder.


 


“Existing Credit Agreement” means the
Amended and Restated Credit Agreement dated as of December 14, 2006 among
the Borrower, the Subsidiary Borrowers party thereto, JPMorgan Chase Bank,
N.A., as administrative agent, and the lenders party thereto, as amended
through the date hereof and as further amended prior to the Initial Borrowing
Date.


 


“Existing Letters of Credit” means
such letters of credit as may be outstanding under the Existing Credit
Agreement on the Initial Borrowing Date and are designated on such date as
“Existing Letters of Credit” hereunder by the Borrower with the consent of the
Administrative Agent and the issuer thereof.


 


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


 


15

















 


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


 


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


 


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


 


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


 


“Financial Support Direction” means a
financial support direction issued by the Pensions Regulator under Section 43
of the Pensions Act 2004 of England and Wales.


 


“Flex Lenders” means, at any time, the
Initial Lenders (at least two) holding 51% or more of the sum of the total
Revolving Credit Exposures, unused Revolving Commitments, unused Term
Commitments and outstanding Term Loans of all the Initial Lenders at such time.


 


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


 


“Foreign Credit Party” means a Credit
Party which is a Foreign Subsidiary.


 


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


 


16

















 


transferable and freely convertible into
Dollars, and agreed to by the Swingline Lender and (e) with respect to the
Term A Loan, Euros and Sterling.


 


“Foreign Lender” means, with respect
to a Borrower that is resident for Tax purposes in a particular jurisdiction,
any Lender that is regarded by the Governmental Authority of that jurisdiction
as not being resident for Tax purposes in that jurisdiction. For purposes of
this definition, the United States, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.


 


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


 


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


 


“French Pledge Agreements” means the
Pledge Agreement (Acte de Nantissement de Compte d’Instruments Financiers) by
Manitowoc FP, Inc. and the two Pledge Agreements (Acte de Nantissement de
Compte d’Instruments Financiers and Acte de Nantissement de Parts Sociales) by
Manitowoc France SAS, each dated as of the Effective Date and made in favor of
the Collateral Agent for the benefit of the Secured Creditors.


 


“Funding Transactions” means,
collectively, the loans, capital contributions and other investments
substantially in the form described on Schedule 1.04 hereto to be effected to
facilitate the funding of the Acquisition.


 


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


 


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


 


“Guarantee” of or by any Person (the “guarantor”)
means any obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other obligation
of any other Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of the guarantor, direct
or indirect, (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase
(or to advance or supply funds for the purchase of) any property constituting
direct or indirect security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor or to


 


17

















 


advance or supply funds for the foregoing so
as to enable the primary obligor to pay such Indebtedness or other obligation, (d) as
an account party in respect of any letter of credit or letter of guarantee
issued to support such Indebtedness or obligation or (e) otherwise to
assure or hold harmless the owner of such Indebtedness or other obligation
against loss in respect thereof; provided, that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business, Buy-Back Obligations or any guarantee by the Borrowers or any
Subsidiary Guarantor of the obligations of any Subsidiary in respect of
intra-day overdrafts incurred by such Subsidiary in accordance with customary
practices and in the ordinary course of business of such Subsidiary. The amount
of any Guarantee made by any guarantor shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee is made and (b) the maximum amount for
which such guarantor may be liable pursuant to the terms of the instrument
embodying such Guarantee, unless (in the case of a primary obligation that is
not Indebtedness) such primary 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 contingent liability in respect thereof as determined by the
Borrower in good faith.


 


“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.


 


“Implementation Agreement” means the
implementation agreement between the Target and Newco concerning the conduct of
the Scheme.


 


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


 


18

















 


compensation obligations, customer advances
and other accrued expenses incurred by any Person in accordance with customary
practices and in the ordinary course of business of such Person or Buy-Back
Obligations. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with such entity, except
to the extent the terms of such Indebtedness provide that such person is not
liable therefor.


 


“Indemnified Taxes” means Taxes other
than Excluded Taxes.


 


“Information Memorandum” means,
collectively, the Confidential Information Memoranda relating to the Borrower
and the Transactions to be prepared and distributed to prospective Lenders
prior to the Initial Borrowing Date in connection with the syndication of the
Loans.


 


“Initial Borrowing Date” means the
date on which the conditions specified in Section 4.02 are satisfied (or
waived in accordance with Section 9.02).


 


“Initial Lenders” means JPMorgan Chase
Bank, N.A., Deutsche Bank AG New York Branch, Morgan Stanley Senior Funding, Inc.
and BNP Paribas.


 


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


 


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


 


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


 


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


 


“Interest Period” means (a) with
respect to any Eurocurrency Borrowing, the period commencing on the date of
such Borrowing and ending on the numerically corresponding day in the calendar
month that is one, two, three or six months (or, with the consent of each
Lender, nine or twelve months) thereafter, as the Borrower may elect; and (b) as
to any Swingline Foreign Currency Loan, the period commencing on the date of
such Loan and ending on the day that is designated in the notice delivered
pursuant to Section 2.05 with respect to such Swingline Foreign Currency
Loan, which shall not be later than thirty days thereafter; provided,
that (i) if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless, in the case of a Eurocurrency Borrowing only, such next succeeding
Business Day would fall in the next calendar month, in


 


19

















 


which case such Interest Period shall end on
the next preceding Business Day and (ii) any Interest Period pertaining to
a Eurocurrency Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.


 


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


 


“Issuing Bank” means each of JPMorgan,
and such additional Lenders as may be designated as such by the Borrower with
the consent of the Administrative Agent and which agree to act in such capacity,
each as the issuer of Letters of Credit hereunder, and their respective
successors in such capacity as provided in Section 2.06(i). The Issuing
Bank may, in its discretion, arrange for one or more Letters of Credit to be
issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank”
shall include any such Affiliate with respect to Letters of Credit issued by
such Affiliate. With respect to any Letter of Credit, “Issuing Bank” shall mean
the issuer thereof.


 


“JPMorgan” means JPMorgan Chase Bank,
N.A., a national banking association, and solely relative to such Loans, J.P.
Morgan Europe Limited, with respect to Loans denominated in a Foreign Currency,
and their successors.


 


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


 


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


 


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


 


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


 


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


 


20

















 


London interbank market at approximately
11:00 a.m., London time, on the Quotation Day for such Interest Period;
and provided further that in no event shall the LIBO Rate with respect
to the Term B Loan at any time be less than 3.00% per annum.


 


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


 


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


 


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


 


“Major Default” means (with respect to
the Borrower or any of its Subsidiaries (excluding the Target Group)) an Event
of Default arising under clauses (a), (b), (c) (but only to the extent
relating to a Major Representation), (d) (but only to the extent relating
to Section 5.08 (to the extent relating to the purpose for which Certain
Funds Loans are applied), Section 6.01, 6.02, 6.03, 6.04, 6.05, 6.09 (to
the extent relating to the Borrower or Newco) or 6.12 or clause (A) of the
third sentence of Section 9.02(b)), (e) (but only to the extent
relating to Section 5.14 (other than Section 5.14(a)(ii), (iii) or
(vi)), or 5.15 (other than Section 5.15(a)(ii), (iii) or (vi) or
Section 5.15(c)(i) or (ii)), or (h), (i), (j), (m) (but only to
the extent relating to clauses (e) or (f) of the definition of
“Change in Control”), (n)(i), (o)(i) or (p)(i) of Article VII.


 


“Major Representation” means each of
the representations and warranties set out (but ignoring any reference therein
to any member of the Target Group or their respective assets) in Section 3.01
(except as it relates to the conduct of the business of the Borrower or its
Subsidiaries), 3.02, 3.03(b) or (c), 3.08, 3.12, 3.16, or 3.17.


 


“Mandatory Cost Rate” shall have the
meaning provided on Schedule 2.22.


 


“Manitowoc Asia Holdings” means
Manitowoc Holding Asia SAS, a société par
actions simplifiée organized under the laws of France and a
Wholly-Owned Subsidiary of the Borrower.


 


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


 


“Marine Mortgages” means the fee
Mortgage with respect to property of Marinette Marine Corporation located in
Marinette, Wisconsin and the leasehold Mortgage with respect to the leasehold
interest of the Borrower in property located in Sturgeon Bay, Wisconsin, in
each case as more fully described on Schedule 4.02 hereto.


 


“Material Adverse Effect” means a
material adverse effect on (a) the business, assets, operations or
financial condition, of the Borrower and its Subsidiaries taken as a whole,


 


21

















 


(b) the ability of the Borrower or of
the Credit Parties taken as a whole to perform any of their repayment or other
material obligations under the Credit Documents or (c) the rights or
remedies of the Administrative Agent, the Collateral Agent or the Lenders under
the Credit Documents.


 


“Material Indebtedness” means
Indebtedness (other than the Loans and Letters of Credit), or obligations in
respect of one or more Swap Agreements, of any one or more of the Borrower and
its Subsidiaries in an aggregate principal amount exceeding $20,000,000. For
purposes of determining Material Indebtedness, the “principal amount” of the
obligations of the Borrower or any Subsidiary in respect of any Swap Agreement
at any time shall be the maximum aggregate amount (giving effect to any netting
rights or netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Swap Agreement were terminated at such time.


 


“Material Subsidiary” means a
Subsidiary of the Borrower (a) which has or acquires assets constituting
more than the greater of (i) .50% of the consolidated assets of the
Borrower and its consolidated subsidiaries and (ii) $20,000,000 or (b) which
generated more than 4% of Consolidated Net Income over the four fiscal quarter
period most recently ended prior to the time of computation, but excluding
Grove Australia Pty. Ltd.


 


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


 


“Mortgages” means, individually and
collectively, one or more mortgages, leasehold mortgages, deeds of trust, or
deeds to secure debt, executed and delivered by a Borrower or Subsidiary
Guarantor thereof in favor of the Collateral Agent, for the benefit of the
Lenders, as the same may be amended, restated, amended and restated, modified
or supplemented from time to time.


 


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


 


“Net Proceeds” means, with respect to
any event, (a) the cash proceeds received in respect of such event,
including (i) any cash received in respect of any non-cash proceeds
(including any cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment or
earn-out, but excluding any reasonable interest payments), but only as and when
received, (ii) in the case of a casualty, cash insurance proceeds, and (iii) in
the case of a condemnation or similar event, cash condemnation awards and
similar payments received in connection therewith, minus (b) the
sum of (i) all fees and expenses (including commissions and legal,
accounting and other professional and transactional fees) paid by the Borrowers
and the Subsidiaries to third parties (other than Affiliates) in connection
with such event, (ii) in the case of a sale, transfer or other disposition
of an asset (including pursuant to a sale and leaseback transaction or a
casualty or a condemnation or similar proceeding), the amount of all payments
that are permitted hereunder and are made by the Borrowers and the Subsidiaries
as a result of such event to repay Indebtedness (other than Loans) secured by such
asset or otherwise subject to mandatory prepayment as a result of such event,
and (iii) the amount of all taxes paid (or reasonably estimated to be
payable) by the Borrowers and the Subsidiaries, and the amount of any reserves
established by the Borrowers and the Subsidiaries to fund contingent
liabilities reasonably estimated to be payable, that are directly attributable
to such event (as determined reasonably and in good faith by their respective


 


22

















 


Financial Officers), provided that any
reduction at any time in the amount of any such reserves (other than as a
result of payments made in respect thereof) shall be deemed to constitute the
receipt by Borrower at such time of Net Proceeds in the amount of such
reduction.


 


“Newco” means MTW County Ltd., a
limited liability company incorporated under the laws of England and Wales (and
which may become domesticated in the State of Delaware pursuant to Section 388
of the Delaware General Corporation Law), which is a Wholly-Owned Foreign
Subsidiary.


 


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


 


“Offer” means each of the offers
proposed to be made by Newco, substantially on the terms and conditions (as
from time to time amended, added to, extended, revised, renewed or waived only
insofar as the same is effected in accordance with the terms of this Agreement)
set out in the Press Release, to acquire the whole of the share capital
(whether in issue or, subject to those terms and conditions, to be allotted or
issued) of the Target not already owned by Newco.


 


“Offer Document” means the offer
document issued, or to be issued, by Newco to the shareholders of the Target
(including form of acceptance) in respect of the Offer.


 


“Offer Shares” means the shares of the
Target to which the Offer relates.


 


“Offsetting Cash Amount” means the
aggregate stated balance sheet amount of cash, Cash Equivalents and Foreign
Cash Equivalents of the Borrower and its Wholly-Owned Domestic Subsidiaries
(excluding any portion thereof which is subject to a Lien in favor of a Person
other than the Collateral Agent or is otherwise restricted).


 


“Original Credit Agreement” shall have
the meaning provided in the Recitals hereto.


 


“Original Press Release” means the
press release dated April 14, 2008 announcing Newco’s firm intention to
make an offer for the Target Shares by way of a Scheme.


 


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


 


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


 


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


 


23
















 


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


 


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


 


“Pensions Regulator” means the body
corporate called the Pensions Regulator established under Part I of the
Pensions Act 2004 of England and Wales.


 


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


 


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


 


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


 


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


 


24

















 


“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.


 


“Posting Date” means: (a) in
relation to the Offer, the date on which the Offer Document is posted; and (b) in
relation to the Scheme, the date on which the Scheme Document is posted.


 


“Prepayment Event” means:


 


(a)           any sale, transfer or other disposition (including
pursuant to a sale and leaseback transaction (other than such a transaction,
the purpose of which is to finance the asset sold) and by way of merger or
consolidation in which neither the Borrower nor any Subsidiary is the surviving
entity) of any property or asset of any Borrower or any Subsidiary, other than (i) sales
and/or rentals of inventory in the ordinary course of business, (ii) sales
of Cash Equivalents and Foreign Cash Equivalents in the ordinary course of
business, (iii) sales of accounts receivable to the extent permitted by Section 6.03
(a)(vii) or (xiv), (iv) dispositions to the Borrower or any
Subsidiary and (v) dispositions resulting in aggregate Net Proceeds not
exceeding (A) $10,000,000 in the case of any single transaction or series
of related transactions or (B) $25,000,000 for all such transactions
during any fiscal year of Borrower;


 


(b)           any casualty or other insured damage to, or any
taking under power of eminent domain or by condemnation or similar proceeding
of, any property or asset of, any Borrower or any Subsidiary resulting in Net
Proceeds equal to or greater than $10,000,000;


 


(c)           the issuance by any Borrower or any Subsidiary of
any Equity Interests, or the receipt by any Borrower or any Subsidiary of any
capital contribution, other than any such issuance of Equity Interests to the
Borrower or any Wholly-Owned Subsidiary or pursuant to a stock incentive plan,
stock option plan or other equity-based compensation plan or arrangement for
employees, officers and directors of any Borrower or any Subsidiary or receipt
of a capital contribution from the Borrower or any Subsidiary; or


 


(d)           the incurrence by any Borrower or any Subsidiary of
any Indebtedness for borrowed money, other than Indebtedness permitted under Section 6.01
(except Section 6.01 (q)(i)).


 


“Press Release” means the first
Original Press Release as supplemented and modified by the Supplemental Press
Release and the Second Supplemental Press Release.


 


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


 


“Pro Forma Basis” means, in connection
with any calculation of compliance with any financial covenant or financial
term, the calculation thereof after giving effect on a pro  forma


 


25

















 


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


 


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


 


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


 


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


 


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


 


26

















 


involving the Borrower and (e) are
otherwise reasonably satisfactory to the Administrative Agent.


 


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


 


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


 


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


 


“Receiving Agent” means any person
appointed as the receiving agent for the Offer with the consent of the
Administrative Agent.


 


“Receiving Agent Agreement” means the
agreement entered into, or to be entered into, between the Receiving Agent and
Newco in relation (among other things) to the receipt and settlement of
acceptances of the Offer.


 


“Register” has the meaning set forth
in Section 9.04(b)(iv).


 


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


 


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


 


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


 


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


 


27

















 


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


 


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


 


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


 


“Restatement Date” shall have the
meaning provided in Section 4.01.


 


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


 


“Revolving Borrowing” means a
Borrowing comprised of Revolving Loans.


 


“Revolving Commitment” means, with
respect to each Lender, the commitment of such Lender to make Revolving Loans
and to acquire participations in Letters of Credit, Swingline Loans and
Alternate Currency Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender’s Revolving Credit Exposure hereunder,
as such commitment may be (a) reduced or increased from time to time
pursuant to Section 2.09 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04.
The initial amount of each Lender’s Revolving Commitment is set forth on
Schedule 2.01, or in the Assignment and Assumption pursuant to which such
Lender shall have assumed its Revolving Commitment, as applicable. The initial
aggregate amount of the Lenders’ Revolving Commitments is $400,000,000.


 


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


 


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


 


“Revolving Maturity Date” means the
fifth anniversary of the Initial Borrowing Date.


 


“S&P” means Standard &
Poor’s.


 


28

















 


“Sale Transaction” means the sale by
MMG Holding Co., LLC of all of the Equity Interests of Manitowoc Marine Group,
LLC to Fincanteri Marine Group Holdings, Inc. on substantially the terms
set forth in the Borrower’s Form 8-K filed with the Securities Exchange
Commission on or about August 4, 2008.


 


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


 


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


 


“Scheme” means a scheme of arrangement
under Section 895 of the 2006 Companies Act in respect of the Target
pursuant to which Newco subscribes in cash for all of the new shares issued in
the Target in conjunction with the Target canceling all of its share capital
existing immediately prior to such scheme of arrangement becoming effective;


 


“Scheme Document” means the document
issued, or to be issued, by or on behalf of the Target to its shareholders in
respect of the Scheme.


 


“Scheme Effective Date” means the date
on which the Scheme becomes effective, being the later of the dates on which (a) an
office copy of an appropriate court order approving the Scheme has been
delivered to the registrar of companies for registration; and (b) a
certificate of registration is issued by the registrar of companies evidencing
registration of the order and minute (approved by the court) and giving effect
to the reduction in the Target’s share capital under Section 138 of the
Companies Act.


 


“Second Supplemental Press Release”
means the press release in the form agreed by the Administrative Agent
announcing the Borrower’s increase of its prior offer for the Target Shares
(and supplementing the previously publicly announced proposed terms of the
Acquisition as to price but not otherwise), such press release to be made, if
at all, following completion of the auction relating to the Target Shares
scheduled for June 30, 2008.


 


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


 


“Security Documents” means and
includes each of the US Security Agreement, the US Pledge Agreement, the UK
Security Agreement, the French Pledge Agreements, the Mortgages, after the
execution and delivery thereof, each Additional Security Document and each
other document or instrument pursuant to which security is granted to the
Collateral Agent for the benefit of any of the Secured Creditors pursuant
hereto.


 


29

















 


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


 


“Senior Note Indenture” means the
Indenture dated as of November 6, 2003, among the Borrower and the other
parties thereto, as in effect on the Effective Date and as the same may be
amended, restated, amended and restated, modified or supplemented from time to
time in accordance with the terms hereof and thereof.


 


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


 


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


 


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


 


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


 


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


 


“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,


 


30

















 


as well as any other corporation, limited
liability company, partnership, association or other entity (a) of which
securities or other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.


 


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


 


“Subsidiary Borrower” means BPGR,
Manitowoc Asia Holdings and each Wholly-Owned Foreign Subsidiary designated as
such by the Borrower pursuant to Section 2.21.


 


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


 


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


 


“Supplemental Press Release” means the
first press release in the form agreed by the Administrative Agent announcing
the Borrower’s increase of its prior offer for the Target Shares to a price of
294 pence per Target Share and supplementing the Original Press Release.


 


“Supplemental Sale Transaction” shall
have the meaning assigned to that term in Schedule 1.03.


 


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


 


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


 


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


 


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


 


31

















 


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


 


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


 


“Takeover Code” means the City Code on
Takeovers and Mergers, as amended from time to time.


 


“Target” means Enodis plc, whose
registered office is at 175 High Holborn, London WC1V7AA.


 


“TARGET” means the Trans-European
Automated Real-time Gross Settlement Express Transfer payment system which
utilizes interlinked national real time gross settlement systems and the
European Central Bank’s payment mechanism and which began operations on 4 January 1999.


 


“TARGET2” means the Trans-European
Automated Real-time Gross Settlement Express Transfer payment system which
utilizes a single shared platform and which was launched on 19 November 2007.


 


“Target Day” means:


 


(a)           until such time as TARGET is permanently closed
down and ceases operations any day on which both TARGET and TARGET2 are; and


 


(b)           following such time as TARGET is permanently closed
down and ceased operations, any day on which TARGET2 is,


 


open for the settlement of payments in Euro.


 


“Target Debt” means Indebtedness of
any member of the Target Group pursuant to (a) that certain $400,000,000
Multi-Currency Revolving Facility Agreement dated June 5, 2007 by and
among certain members of the Target Group, Lloyds TSB Bank plc, Wachovia Bank,
National Association, The Royal Bank of Scotland plc, BNP Paribas, London
Branch and SunTrust Bank, as Mandated Lead Arrangers, DSB Bank Ltd, as Senior
Lead Manager, Comerica Bank, as Lead Manager, Lloyds TSB Bank plc, as Facility
Agent and The Royal Bank of Scotland plc, as Issuing Bank, to be paid in full
on the Initial Funding Date, and (b) that certain Note Purchase and
Guaranty Agreement dated as of September 6, 2007 among certain members of
the Target Group, and the Purchasers party thereto, pursuant to which were
issued $30,000,000 5.90% Guaranteed Senior Notes, Series A, due September 6,
2014, its $95,000,000 6.10% Guaranteed Senior Notes, Series B, due September 6,
2017, its $50,000,000 Floating Rate Guaranteed Senior Notes, Series C, due
September 6, 2014, its $30,000,000 Floating Rate Guaranteed Senior Notes, Series D,
due September 6, 2017, its $2,500,000 5.86% Guaranteed Senior Notes, Series E,
due September 6, 2014, and its $42,200,000 6.07% Guaranteed Senior Notes, Series F,
due September 6, 2017, to be paid in full not later than 45 days from the
Initial Funding Date.


 


32

















 


“Target Group” means the Target and
its subsidiaries from time to time and “member of the Target Group” means any
of them.


 


“Target Shares” means shares in the
capital of the Target (whether in issue or, subject to the terms of the Scheme
Document or (as applicable) the Offer Document, to be allotted or issued).


 


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


 


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


 


“Term A Borrowing” means a Borrowing
comprised of Term A Loans.


 


“Term A Commitment” means, with
respect to each Lender, the commitment of such Lender to make Term A Loans
hereunder, expressed as an amount representing the maximum aggregate principal
amount of such Lender’s Term A Loans. The amount of each Lender’s Term A
Commitment is set forth on Schedule 2.01. The initial aggregate amount of the
Lenders’ Term A Commitment is $1,025,000,000.


 


“Term A Loan” means, with respect to
each Lender, such Lender’s pro-rata portion of the Term A Borrowings made by
the Lenders pursuant to Section 2.01(b) and Section 2.09(d) and,
with respect to all Lenders, the aggregate of all such pro-rata portions.


 


“Term A Maturity Date” means the fifth
anniversary of the Initial Borrowing Date.


 


“Term B Borrowing” means a Borrowing
comprised of Term B Loans.


 


“Term B Commitment” means, with
respect to each Lender, the commitment of such Lender to make Term B Loans
hereunder, expressed as an amount representing the maximum aggregate principal
amount of such Lender’s Term B Loans. The amount of each Lender’s Term B
Commitment is set forth on Schedule 2.01. The initial aggregate amount of the
Lenders’ Term B Commitment is $1,200,000,000.


 


“Term B Loan” means, with respect to
each Lender, such Lender’s pro-rata portion of the Term B Borrowings made by
the Lenders pursuant to Section 2.01(c) and, with respect to all
Lenders, the aggregate of all such pro-rata portions.


 


“Term B Maturity Date” means the sixth
anniversary of the Initial Borrowing Date.


 


“Term Borrowing” means a Term A
Borrowing, a Term B Borrowing or a Term X Borrowing.


 


“Term Commitments” means the Term A
Commitments, the Term B Commitments and the Term X Commitments.


 


33
















 


“Term End Date” means the earlier of
(a) the last day of the Certain Funds Period and (b) the date upon
which all Term Commitments have terminated.


 


“Term Loans” means the Term A Loans,
the Term B Loans and the Term X Loans.


 


“Term X Borrowing” means a Borrowing
comprised of Term X Loans.


 


“Term X Commitment” means, with
respect to each Lender, the commitment of such Lender to make Term X Loans
hereunder, expressed as an amount representing the maximum aggregate principal
amount of such Lender’s Term X Loans. The amount of each Lender’s Term X
Commitment is set forth on Schedule 2.01. The initial aggregate amount of the
Lenders’ Term X Commitment is $300,000,000.


 


“Term X Loan” means, with respect to
each Lender, such Lender’s pro-rata portion of the Term X Borrowings made by
the Lenders pursuant to Section 2.01(d) and, with respect to all
Lenders, the aggregate of all such pro-rata portions.


 


“Term X Maturity Date” means the
eighteen-month anniversary of the Initial Borrowing Date.


 


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


 


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


 


“Transaction Documents” means the
Credit Documents and the Acquisition Documents.


 


“Transactions” means the execution,
delivery and performance by the Credit Parties of the Credit Documents, the
borrowing of Loans, the use of the proceeds thereof, and the issuance of
Letters of Credit hereunder and the other transactions contemplated by the
Credit Documents (including without limitation the granting of Liens to secure
the Obligations and the Acquisition).


 


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


 


34

















 


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


 


“UK Security Agreement” means the
Security Agreement dated the Effective Date made by North Central
Crane & Excavator Sales Corp. (to be renamed Manitowoc FSG International
Holdings, Inc.), in favor of the UK Security Trustee for the benefit of
the Secured Creditors, as the same may be amended, restated, amended and
restated, modified or supplemented from time to time.


 


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


 


“UK Security Trustee” means the
Administrative Agent acting as trustee pursuant to the UK Security Agreement.


 


“Unconditional Date” means (a) if
the Acquisition is effected by means of the Scheme, the Scheme Effective Date
or (b) if the Acquisition is effected by means of the Offer, the date on
which the Offer has become or is declared unconditional in all respects.


 


“United States” means the United
States of America.


 


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


 


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


 


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


 


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


 


“Weighted Average Life to Maturity”
means, when applied to any Indebtedness, at any date, the quotient obtained by
dividing:


 


(i)           the sum of the products of the number
of years from the date of determination to the date of each successive
scheduled principal payment of such Indebtedness multiplied by the amount of
such payment, by


 


(ii)          the sum of all such payments.


 


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


 


35

















 


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


 


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


 


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


 


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


 


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


 


SECTION 1.04.      Accounting Terms; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if
the Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the Effective Date in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the


 


36

















 


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.


 


SECTION 1.05.      Foreign Currency Calculations. (a) For purposes of determining
the Dollar Equivalent of any Advance denominated in a Foreign Currency or any
related amount, the Administrative Agent shall determine the Exchange Rate as
of the applicable Exchange Rate Date with respect to each Foreign Currency in
which any requested or outstanding Advance is denominated and shall apply such
Exchange Rates to determine such amount (in each case after giving effect to
any Advance to be made or repaid on or prior to the applicable date for such
calculation).


 


(b)           For
purposes of any determination under Article VI or Article VII, all amounts
incurred, outstanding or proposed to be incurred or outstanding in currencies
other than Dollars shall be translated into Dollars at the currency exchange
rates in effect on the date of such determination; provided that no
Default shall arise as a result of any limitation set forth in Dollars in
Section 6.01 or 6.02 being exceeded solely as a result of changes in
currency exchange rates from those rates applicable at the time or times
Indebtedness or Liens were initially consummated in reliance on the exceptions
under such Sections. For purposes of any determination under Section 6.04
or 6.08, the amount of each investment, asset disposition or other applicable
transaction denominated in a currency other than Dollars shall be translated
into Dollars at the currency exchange rate in effect on the date such
investment, disposition or other transaction is consummated. Such currency exchange
rates shall be determined in good faith by the Borrower.


 


SECTION 1.06.      Redenomination of Certain Foreign Currencies.
(a) Each obligation of any party to this Agreement to make a payment
denominated in the national currency unit of any member state of the European
Union that adopts the Euro as its lawful currency after the Effective Date
shall be redenominated into Euro at the time of such adoption (in accordance
with the EMU Legislation). If, in relation to the currency of any such member
state, the basis of accrual of interest expressed in this Agreement in respect
of that currency shall be inconsistent with any convention or practice in the
London Interbank Market for the basis of accrual of interest in respect of the
Euro, such expressed basis shall be replaced by such convention or practice
with effect from the date on which such member state adopts the Euro as its
lawful currency; provided that if any Borrowing in the currency of such
member state is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Borrowing, at the end of the then
current Interest Period.


 


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


 


37

















 


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


 


ARTICLE II


 


The Credits


 


SECTION 2.01.      Commitments. (a) Subject to the terms and
conditions set forth herein, each Lender with a Revolving Commitment severally
agrees to make revolving Loans denominated in Dollars and Foreign Currencies to
the Borrowers from time to time during the Availability Period in an aggregate
principal amount that will not result in (i) such Lender’s Revolving
Credit Exposure exceeding such Lender’s Revolving Commitment, (ii) the sum
of the total Revolving Credit Exposures exceeding the total Revolving
Commitments, (iii) the Dollar Equivalent of the aggregate amount of all
Revolving Loans, Letters of Credit, Alternate Currency Loans and Swingline
Loans denominated in Foreign Currency exceeding $300,000,000 or (iv) the
Dollar Equivalent of the aggregate amount of all Revolving Loans, Alternate
Currency Loans and Letters of Credit made to or issued for the account of
Subsidiary Borrowers exceeding $300,000,000. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrowers may borrow,
prepay and reborrow Revolving Loans.


 


(b)           Subject
to the terms and conditions set forth herein, each Lender with a Term A
Commitment agrees to make one or more Term A Loans denominated entirely either
in Dollars or in a single Foreign Currency to the Borrower during the Availability
Period in an aggregate principal amount that will not result in (i) such
Lender’s Term A Loan exceeding such Lender’s Term A Commitment or (ii) the
sum of the Term A Loans exceeding the total Term A Commitments. No amount of
the Term A Loan which is repaid or prepaid by the Borrower may be reborrowed
hereunder.


 


(c)           Subject
to the terms and conditions set forth herein, each Lender with a Term B
Commitment agrees to make a Term B Loan denominated in Dollars to the Borrower
during the Availability Period in an aggregate principal amount that will not
result in (i) such Lender’s Term B Loan exceeding such Lender’s Term B
Commitment or (ii) the sum of the Term B Loans exceeding the total Term B
Commitments. No amount of the Term B Loan which is repaid or prepaid by the
Borrower may be reborrowed hereunder.


 


(d)           Subject
to the terms and conditions set forth herein, each Lender with a Term X
Commitment agrees to make a Term X Loan denominated in Dollars to the Borrower
during the Availability Period in an aggregate principal amount that will not
result in (i) such Lender’s Term X Loan exceeding such Lender’s Term X
Commitment or (ii) the sum of the Term X Loans exceeding the total Term X
Commitments. No amount of the Term X Loan which is repaid or prepaid by the
Borrower may be reborrowed hereunder.


 


SECTION 2.02.      Loans and Borrowings. (a) Each Revolving Loan shall
be made as part of a Borrowing consisting of Revolving Loans made by the
Lenders ratably in accordance with their respective Revolving Commitments. Each
Term A Loan shall be made as


 


38

















 


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


 


(b)         Subject
to Section 2.15, (i) each Borrowing denominated in Dollars shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower may
request in accordance herewith and (ii) each Revolving Borrowing
denominated in a Foreign Currency shall be comprised entirely of Eurocurrency
Loans. Each Swingline Dollar Loan shall be an ABR Loan and each Swingline
Foreign Currency Loan shall bear interest at such rate agreed to between the Borrower
and the Swingline Lender. Each Term Loan shall be in an amount that is not less
than the lesser of $10,000,000 and the unused Term Commitment of the applicable
Class of Term Loan. Each Lender at its option may make any Eurocurrency
Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.


 


(c)          At
the commencement of each Interest Period for any Eurocurrency Revolving
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $500,000 and not less than $2,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount
that is an integral multiple of $250,000 and not less than $1,000,000; provided
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Revolving Commitments or that is
required to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.06(e). Each Swingline Loan shall be in an amount that is an
integral multiple of $100,000 and not less than $500,000 (or in the case of a
Swingline Loan denominated in Euros not less than $1,000,000). Borrowings of
more than one Type and Class may be outstanding at the same time; provided
that there shall not at any time be more than a total of 8 Eurocurrency
Revolving Borrowings outstanding.


 


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


 


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


 


39

















 


Agent and the Borrower, designate replacement
or additional Applicable Lending Installations through which Loans will be made
by it and for whose account Loan payments are to be made.


 


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


 


(i)           the identity of the Applicable Borrower;


 


(ii)          the aggregate amount of the requested Borrowing;


 


(iii)         the Class of such Borrowing;


 


(iv)        the currency (which may be Dollars or, if applicable, a Foreign Currency)
in which such Borrowing is to be denominated;


 


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


 


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


 


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


 


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


 


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


 


40
















 


SECTION 2.04.      Alternate Currency Loans. (a) Subject to the terms
and conditions set forth herein, each Alternate Currency Lender agrees to make
revolving Loans denominated in Foreign Currency to the Borrowers from time to
time during the Availability Period, in an aggregate principal amount at any
time outstanding that will not result in (i) such Lender’s Revolving
Credit Exposure exceeding such Lender’s Revolving Commitment, (ii) the sum
of the total Revolving Credit Exposures exceeding the total Revolving
Commitments, (iii) the Dollar Equivalent of the aggregate amount of all
Revolving Loans, Letters of Credit, Swingline Loans and Alternate Currency
Loans denominated in Foreign Currency exceeding $300,000,000 or (iv) the
Dollar Equivalent of the aggregate amount of all Revolving Loans, Alternate
Currency Loans and Letters of Credit made to or issued for the account of
Subsidiary Borrowers exceeding $300,000,000. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrowers may borrow,
prepay and reborrow Alternate Currency Loans.


 


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


 


(c)          To request an Alternate Currency Loan, the Borrower
shall notify the Administrative Agent of such request in writing, not later
than 11:00 a.m., London time, four (or, if so requested by the Alternate
Currency Fronting Lender with respect to Alternate Currency Loans in a
specified currency, five) Business Days before the date of the proposed
Alternate Currency Loan. Each such notice shall be irrevocable and shall
specify (i) the identity of the Applicable Borrower, (ii) the
requested date (which shall be a Business Day), (iii) the Foreign Currency
in which such Alternate Currency Loan is to be denominated, (iv) the
amount of the requested Alternate Currency Loan, and (v) the Interest
Period requested to be applicable thereto, which shall be a period contemplated
by clause (a) of the definition of the term “Interest Period”. The
Administrative Agent will promptly advise the applicable Alternate Currency
Lenders of any such notice received from the Borrower.


 


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


 


41

















 


funds, to an account of the Applicable
Borrower designated by the Borrower in the applicable Borrowing Request and
acceptable to the Administrative Agent.


 


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


 


(f)            The
Alternate Currency Fronting Lender irrevocably agrees to grant and hereby
grants to each Participating Lender and, to induce the Alternate Currency
Fronting Lender to make Alternate Currency Loans hereunder, each Participating
Lender irrevocably agrees to accept and purchase and hereby accepts and
purchases from the Alternate Currency Fronting Lender, on the terms and
conditions set forth below, for such Lender’s own account and risk, an
undivided risk participation interest equal to such Participating Lender’s
Applicable Participation Percentage of the Alternate Currency Fronting Lender’s
obligations and rights in respect of each Alternate Currency Loan made by or
assigned to the Alternate Currency Fronting Lender hereunder as to which such
Lender is a Participating Lender. Each Participating Lender unconditionally and
irrevocably agrees with the Alternate Currency Fronting Lender that if any
amount in respect of the principal or interest owing to the Alternate Currency
Fronting Lender in respect of an applicable Alternate Currency Loan is not paid
when due in accordance with the terms of this Agreement, such Participating
Lender shall pay to the Alternate Currency Fronting Lender upon demand an
amount in Dollars (with the Dollar Equivalent of the unpaid amount of such
Alternate Currency Loan to be calculated by the Administrative Agent) equal to
such Lender’s Applicable Participation Percentage of such unpaid amount. Each
Participating Lender acknowledges and agrees that its payment obligation
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. If the Alternate Currency Fronting Lender accepts an
assignment pursuant to Section 9.04(b) of one or more Alternate
Currency Loans, the Applicable Participation Percentages of the Participating
Lenders with respect to such Loans will be adjusted as applicable immediately
upon such assignment taking effect.


 


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


 


42

















 


thereon at the rate per annum applicable to
ABR Loans, on demand. A certificate of the Alternate Currency Fronting Lender
submitted to any Lender with respect to any amounts owing under this
Section 2.04 shall be conclusive in the absence of manifest error.


 


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


 


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


 


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


 


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


 


(l)           At
the request of the Borrower, and with the consent of the applicable
Lender(s) (which may be withheld by any Lender in its sole discretion),
one or more Lenders in addition to JPMorgan shall be deemed to be Alternate
Currency Lenders with respect to Alternate Currency Loans proposed to be made
to a specified Subsidiary Borrower. The Lenders set forth on Schedule 2.04 hereto
are hereby requested to act and designated by the Borrower as and agree to act
as, Alternate Currency Lenders with respect to Alternate Currency Loans to be
made to BPGR and to Manitowoc Asia Holdings in Euros. The Lenders set forth on
Schedule 2.04 hereto are hereby requested to act and designated by the Borrower
as, and agree to act as, Alternate Currency Lenders with respect to Alternate
Currency Loans to be made to the Borrower in Euros, Sterling and Canadian
Dollars. Any Alternate Currency Lender may comply with its obligations as such
by causing an Applicable Lending Installation to perform such obligations as
contemplated by Section 2.02(e), and the terms of this Agreement shall be
applicable to such Applicable Lending Installation as set forth in Section 2.02(e).


 


(m)         In
the event that any Lender acting as an Alternate Currency Lender pursuant to
Section 2.04(l) makes an assignment pursuant to
Section 9.04(b) of all or a part of its Commitment to a Lender which
determines in good faith and notifies the Administrative Agent 


 


43

















 


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


 


SECTION 2.05.      Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans in Dollars or in a Foreign Currency to the Borrower from time to time
during the Availability Period, in an aggregate principal amount at any time
outstanding that will not result in (i) the Dollar Equivalent of the
aggregate principal amount of outstanding Swingline Loans exceeding
$35,000,000, (ii) the sum of the total Revolving Credit Exposures
exceeding the total Revolving Commitments, or (iii) the Dollar Equivalent
of the aggregate amount of all Revolving Loans, Letters of Credit, Swingline
Loans and Alternate Currency Loans denominated in a Foreign Currency exceeding
$300,000,000; provided that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Swingline Loans.


 


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


 


44

















 


account as the Borrower shall identify to the
Swingline Lender) by 3:00 p.m., Local Time, on the requested date of such
Swingline Loan.


 


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


 


SECTION 2.06.      Letters of Credit. (a) General. Subject to
the terms and conditions set forth herein, the Borrower may request the
issuance by an Issuing Bank of Letters of Credit in Dollars or in a Foreign
Currency for its own account or that of a Subsidiary 


 


45

















 


Borrower,
in a form reasonably acceptable to the Administrative Agent and the Issuing
Bank, at any time and from time to time during the Availability Period. In the
event of any inconsistency between the terms and conditions of this Agreement
and the terms and conditions of any form of letter of credit application or
other agreement submitted by the Borrower to, or entered into by the Applicable
Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control.


 


(b)           Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of
an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy
(or transmit by electronic communication, if arrangements for doing so have
been approved by the Issuing Bank) to the Issuing Bank and the Administrative
Agent (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be amended, renewed or extended, and
specifying which of the Borrowers shall be the account party with respect
thereto, the date of issuance, amendment, renewal or extension (which shall be
a Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. If requested by the Issuing Bank, the Applicable Borrower
also shall submit a letter of credit application on the Issuing Bank’s standard
form in connection with any request for a Letter of Credit. A Letter of Credit
shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the LC Exposure shall not exceed
$200,000,000, (ii) the sum of the total Revolving Credit Exposures shall
not exceed the total Revolving Commitments, and (iii) the Dollar
Equivalent of the aggregate amount of all Revolving Loans, Letters of Credit, Swingline
Loans and Alternate Currency Loans denominated in Foreign Currency shall not
exceed $300,000,000; (iv) the Dollar Equivalent of the amount of all LC
Exposure with respect to Letters of Credit issued for the account of Subsidiary
Borrowers shall not exceed $100,000,000; and (v) the Dollar Equivalent of
the aggregate LC Exposure associated with the Letters of Credit issued by the
applicable Issuing Bank shall not exceed $75,000,000 without the consent of
such Issuing Bank.


 


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


 


(d)           Participations.
By the issuance of a Letter of Credit (or an amendment to a Letter of Credit
increasing the amount thereof) and without any further action on the part of
the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender,
and each Lender hereby acquires from the Issuing Bank, a participation in such
Letter of Credit equal to such Lender’s Applicable Revolver Percentage of the
aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Lender’s Applicable Revolver Percentage
of each LC Disbursement made by the Issuing Bank and not reimbursed by the
Applicable Borrower on the date due as provided in


 


46

















 


paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Applicable Borrower for
any reason. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.


 


(e)          Reimbursement.
If the Issuing Bank shall make any LC Disbursement in respect of a Letter of
Credit, the Borrower shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on the date that such LC Disbursement is made,
if the Borrower shall have received notice of such LC Disbursement prior to
10:00 a.m., New York City time, on such date, or, if such notice has not
been received by the Borrower prior to such time on such date, then not later
than 12:00 noon, New York City time, on (i) the Business Day that the
Borrower receives such notice, if such notice is received prior to 10:00 a.m.,
New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided
that the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.05 that such payment be
financed with an ABR Revolving Borrowing or Swingline Loan in an equivalent
amount and, to the extent so financed, the Borrower’s obligation to make such
payment shall be discharged and replaced by the resulting ABR Revolving
Borrowing or Swingline Loan. If the Applicable Borrower fails to make such
payment when due, such amount, if denominated in Foreign Currency, shall be
converted to Dollars and shall bear interest as provided in
Section 2.06(h) and the Administrative Agent shall notify each Lender
of the applicable LC Disbursement, the payment then due from the Applicable
Borrower in respect thereof and such Lender’s Applicable Revolver Percentage thereof.
Promptly following receipt of such notice, each Lender shall pay to the
Administrative Agent its Applicable Revolver Percentage of the payment then due
from the Applicable Borrower, in the same manner as provided in
Section 2.07 with respect to Loans made by such Lender (and
Section 2.07 shall apply, mutatis  mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from the
Applicable Borrower pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the Issuing Bank or, to the extent that Lenders have
made payments pursuant to this paragraph to reimburse the Issuing Bank, then to
such Lenders and the Issuing Bank as their interests may appear. Any payment
made by a Lender pursuant to this paragraph to reimburse the Issuing Bank for
any LC Disbursement (other than the funding of ABR Revolving Loans or a
Swingline Loan as contemplated above) shall not constitute a Loan and shall not
relieve the Applicable Borrower of its obligation to reimburse such LC
Disbursement.


 


(f)          Obligations
Absolute. The Applicable Borrower’s obligation to reimburse LC Disbursements
as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter
of Credit or this Agreement, or any term or provision therein, (ii) any


 


47

















 


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


 


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


 


(h)         Interim
Interest. If the Issuing Bank shall make any LC Disbursement, then, unless
the Applicable Borrower shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the Borrower reimburses such LC Disbursement, at
the rate per annum then applicable to ABR Revolving Loans; provided
that, if the Applicable Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then
Section 2.14(d) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of the Issuing Bank, except that interest
accrued on and after the date of payment by any Lender pursuant to


 


48

















 


paragraph (e) of this Section to
reimburse the Issuing Bank shall be for the account of such Lender to the
extent of such payment.


 


(i)           Replacement
of an Issuing Bank. An Issuing Bank may be replaced at any time by written
agreement among the Borrower, the Administrative Agent, the replaced Issuing
Bank and the successor Issuing Bank. The Administrative Agent shall notify the
Lenders of any such replacement of an Issuing Bank. At the time any such replacement
shall become effective, the Borrower shall pay all unpaid fees accrued for the
account of the replaced Issuing Bank pursuant to Section 2.13(b). From and
after the effective date of any such replacement, (i) the successor
Issuing Bank shall have all the rights and obligations of the Issuing Bank
under this Agreement with respect to Letters of Credit to be issued thereafter
and (ii) references herein to the term “Issuing Bank” shall be deemed to
refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Bank under this Agreement with respect to Letters of Credit
issued by it prior to such replacement, but shall not be required to issue
additional Letters of Credit.


 


(j)           Cash
Collateralization. If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower receives notice from the Administrative
Agent or the Required Lenders (or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposure representing greater than 51% of the
total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to
deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to
the Borrower described in clause (h) or (i) of Article VII. Such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the Obligations. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal,
over such account. Other than any interest earned on the investment of such
deposits, which investments shall be made at the option and sole discretion of
the Administrative Agent and at the Borrower’s risk and expense, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 51% of the total LC Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.


 


(k)          Existing
Letters of Credit. On the Initial Borrowing Date each Existing Letter of
Credit shall be deemed to be a Letter of Credit issued hereunder on such date
and


 


49

















 


governed in all respects by the terms and
conditions of this Agreement (including without limitation
Section 2.06(d)).


 


SECTION 2.07.      Funding of Borrowings. (a) Each Lender shall make
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, Local Time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Alternate Currency Loans
shall be made as provided in Section 2.04 and Swingline Loans shall be
made as provided in Section 2.05. The Administrative Agent will make such
Loans available to the Applicable Borrower by promptly crediting the amounts so
received, in like funds, to an account of the Applicable Borrower or, in the
case of Subsidiary Borrowers or Loans denominated in a Foreign Currency, in
another account, in each case as designated by the Borrower in the applicable
Borrowing Request and acceptable to the Administrative Agent; provided
that ABR Revolving Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.06(e) shall be remitted by the
Administrative Agent to the Issuing Bank.


 


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


 


SECTION 2.08.      Interest Elections. (a) Each Revolving Borrowing
and Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurocurrency Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type, in the case
of Borrowings denominated in Dollars, or to continue such Borrowing and, in the
case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all as
provided in this Section. The Borrower may elect different options with respect
to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section shall not apply to Swingline
Foreign Currency Borrowings or Swingline Dollar Borrowings, which may not be
converted or continued.


 


50
















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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SECTION 2.09.    Termination and Reduction of Commitments; Increase of Commitments.
(a) Unless previously terminated, the Revolving Commitments shall
terminate on the Revolving Maturity Date. Unless previously terminated, the
Term A Commitments shall terminate upon the earlier of the close of business
(New York time) on November 10, 2008 (or, solely with respect to
incremental Term A Commitments arising pursuant to Section 2.09(d), upon
the making of the related incremental Term A Loans) and the date on which the
aggregate amount of the Term A Borrowings made is equal to the Term A
Commitment. Unless previously terminated, the Term B Commitments shall
terminate upon the making of the Term B Loans on the Initial Borrowing Date.
Unless previously terminated, the Term X Commitments shall terminate upon the
making of the Term X Loans on the Initial Borrowing Date.


 


(b)         The
Borrower may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in an
amount that is an integral multiple of $1,000,000 and not less than $5,000,000
and (ii) the Borrower shall not terminate or reduce the Revolving
Commitments if, after giving effect to any concurrent prepayment of the
Revolving Loans in accordance with Section 2.12, the sum of the Revolving
Credit Exposures would exceed the total Revolving Commitments.


 


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


 


(d)         The
Borrower may, at its option, on up to five occasions, seek to increase the
Revolving Commitments and/or the Term A Commitments by up to an aggregate
amount of $300,000,000 in a minimum amount of $10,000,000 and in integral
multiples of $5,000,000 in excess thereof, upon at least three
(3) Business Days’ prior written notice to the Administrative Agent, which
notice shall (i) specify (a) the amount of any such increase and
(b) whether such increase is in the Revolving Commitments, the Term A
Commitments or a combination of any thereof, (ii) if any Indebtedness
under the Senior Note Documents is then outstanding, certify that incurrence by
the Borrower of Indebtedness under this Agreement in the full amount of the
proposed increased Commitments is permitted by the Senior Note Documents,
(iii) be delivered at a time when no Default has occurred and is
continuing and the Term X Loan has been repaid in full, and (iv) specify
the effective date of any Revolving Commitments or Term A Commitments and the
effective date of any incremental Term A Loans to be made pursuant thereto. The
Borrower may, after giving such notice, offer the increase (which may be
declined by any Lender in its sole discretion) in the Commitments on either a
ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders
and/or to other Lenders or entities reasonably acceptable to the Administrative
Agent. No increase in the Commitments shall become effective


 


52

















 


until the existing or new Lenders extending
such incremental Revolving Commitments or Term A Commitments and the Borrower
shall have delivered to the Administrative Agent a document in form and
substance reasonably satisfactory to the Administrative Agent pursuant to which
each such existing Lender states the amount of its Commitment or Loan increase,
each such new Lender becomes a party hereto, states its Commitment or Loan
amount and agrees to assume and accept the obligations and rights of a Lender
hereunder and the Borrower accepts such incremental Commitments or Loans and
certifies that on such date the conditions for a new Loan pursuant to
Section 4.03 are satisfied. In the event of an increase in the Revolving
Commitments pursuant to this Section, the Lenders with Revolving Commitments
(new or existing) shall accept an assignment from the existing Lenders with
Revolving Commitments, and the existing Lenders with Revolving Commitments
shall make an assignment to the new or existing Lenders with Revolving
Commitments accepting a new or increased Revolving Credit Commitment, of an
interest in each then outstanding Revolving Loan, Swingline Loan, Letter of
Credit, LC Disbursement and Alternative Currency Loan such that, after giving
effect thereto, all Revolving Loans, Swingline Loans, Letters of Credit, LC
Disbursements and Alternate Currency Loans are held ratably by the Lenders with
Revolving Commitments in proportion to their respective Revolving Commitments.
Assignments pursuant to the preceding sentence shall be made in exchange for
the principal amount assigned plus accrued and unpaid interest and shall not be
subject to the assignment fee set forth in Section 9.04(b)(ii)(C). The
Borrower shall make any payments under Section 2.17 resulting from such
assignments. In the event of an increase in the Term A Commitments pursuant to
this Section, each Lender accepting a portion of such increased Term A
Commitments shall, on the effective date of the increase in such Term A
Commitments, make a loan to the Borrower in the amount of its portion of such
increase. Any such increase of the Revolving Commitments or Term A Commitments
shall be subject to receipt by the Administrative Agent from the Borrower of
such supplemental opinions, resolutions, certificates and other documents as
the Administrative Agent may reasonably request. From and after the making of
an incremental Term A Loan or Revolving Loan pursuant to this Section, such
Loan shall be deemed a “Term A Loan” or “Revolving Loan”, as applicable,
hereunder for all purposes hereof, and shall be subject to the same terms and
conditions as each other Term A Loan or Revolving Loan made pursuant to this
Agreement.


 


SECTION 2.10.    Repayment of Loans; Evidence of Debt. (a) Each Applicable
Borrower hereby unconditionally promises to pay (i) to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each
of its Revolving Loans on the Revolving Maturity Date and (ii) to the
Administrative Agent for the account of each applicable Lender the unpaid principal
amount of each Term Loan of such Lender as provided in Section 2.11,
(iii) to the Alternate Currency Lenders, the then unpaid principal amount
of each of its Alternate Currency Loans on the Revolving Maturity Date, and
(iv) to the Swingline Lender the then unpaid principal amount of each
Swingline Loan on the earlier of (x) the Revolving Maturity Date and
(y) a date that is no more than seven (7) Business Days after such
Swingline Loan is made; provided that on each date that a Revolving
Borrowing is made, the Borrower shall repay all Swingline Loans then
outstanding.


 


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


 


53

















 


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


 


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


 


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


 


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


 


(g)         The
Administrative Agent will determine the aggregate LC Exposure and the Dollar
Equivalent of each Loan (other than Term Loans) on each Exchange Rate Date. If
at any time the sum of such amounts exceeds 105% of the aggregate Revolving
Commitments of the Lenders, the Borrower shall (or shall cause one or more
Subsidiary Borrowers to) immediately prepay the Loans (other than Term Loans)
in the amount of such excess. To the extent that, after the prepayment of all
Loans (other than Term Loans) an excess of the sum of such amounts over the
aggregate Revolving Commitments still exists, the Borrower shall (or shall
cause one or more Subsidiary Borrowers to) promptly cash collateralize the
Letters of Credit in the manner described in Section 2.06(j) in an
amount sufficient to eliminate such excess.


 


SECTION 2.11.    Amortization of Term Loans. (a) Subject to adjustment
pursuant to paragraph (d) of this Section, the Borrower shall repay Term A
Borrowings on the last Business Day of each calendar quarter set forth below in
the aggregate principal amount indicated (and in addition, to the extent that
any incremental Term A Loans shall be made pursuant to Section 2.09(d), in
an additional amount equal to the corresponding amount required to be amortized
with respect to the other Term A Loans based on the initial aggregate principal
amount of such incremental Term A Loans on the last Business Day of each
calendar quarter from and including the calendar quarter immediately succeeding
the calendar quarter in which such incremental Term A Loans are made):


 


54

















 


(i)           on the last Business Day of each
calendar quarter ending after the calendar quarter in which the Term End Date
occurs to and including the eighth such calendar quarter, the Borrower shall
make an aggregate payment equal to 2.5% of the aggregate amount of the Term A
Loan at the time the Term A Loan Commitment terminated;


 


(ii)          on the last Business Day of each of
the ninth through sixteenth calendar quarters next following the calendar quarter
in which the Term End Date occurs, the Borrower shall make an aggregate payment
equal to 3.75% of the initial aggregate principal amount of the Term A Loan at
the time the Term A Loan Commitment terminated;


 


(iii)         on the last Business Day of each of the
seventeenth through nineteenth calendar quarters next following the calendar
quarter in which the Term End Date occurs, the Borrower shall make an aggregate
payment equal to 12.5% of the initial aggregate principal amount of the Term A
Loan at the time the Term A Loan Commitment terminated; and


 


(iv)        on the Term A Maturity Date, the
Borrower shall pay the entire remaining unpaid principal amount of the Term A
Loan.


 


(b)           Subject
to adjustment pursuant to paragraph (d) of this Section, the Borrower
shall repay the Term B Loan on the last Business Day of each calendar quarter
set forth below in the aggregate principal amount indicated:


 


(i)           on the last Business Day of each
calendar quarter ending after the calendar quarter in which the Term End Date
occurs, to and including the twenty third such calendar quarter, the Borrower
shall make an aggregate payment equal to .25% of the initial aggregate amount
of the Term B Loan; and


 


(ii)          on the Term B Maturity Date, the
Borrower shall pay the entire remaining unpaid principal amount of the Term B
Loan.


 


(c)           The
Borrower shall repay the entire unpaid principal amount of the Term X Loan in
full on the Term X Maturity Date.


 


(d)           Any
optional or mandatory prepayment of a Term Borrowing of any Class shall be
applied (i) first, in direct order of maturity to the scheduled
repayments of the Term Borrowings of such Class occurring in the twelve
months following the date of such prepayment and (ii) second,
ratably to the remaining scheduled repayments of such Borrowings.


 


SECTION 2.12.    Prepayment of Loans. (a) The Borrowers shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this
Section and, in the case of prepayments of the Term B Loan, subject to
compliance with Section 2.12(g).


 


(b)           The
Borrower shall notify the Administrative Agent (and, in the case of prepayment
of a Swingline Loan or Alternate Currency Loan, the Swingline Lender or
Alternate


 


55

















 


Currency Lender, as the case may be) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the
case of prepayment of a Eurocurrency Borrowing (excluding Alternate Currency
Loans), not later than 11:00 a.m., New York City time, three Business Days
before the date of prepayment, (ii) in the case of Alternate Currency
Borrowings, not later than 11:00 a.m. London time, three (or, if so
requested by the Alternate Currency Fronting Lender with respect to Alternate Currency
Loans in a specified currency, four) Business Days before the date of
prepayment, (iii) in the case of prepayment of an ABR Borrowing, not later
than 11:00 a.m., New York City time, one Business Day before the date of
prepayment or (iv) in the case of prepayment of a Swingline Loan, not
later than 12:00 noon, New York City time (or in the case of a Swingline
Foreign Currency Loan, 12:00 noon, London time, on the date of prepayment. Each
such notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid and, in the
case of a mandatory prepayment, a reasonably detailed calculation of the amount
of such prepayment; provided that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.09, then such notice of prepayment may be
revoked if such notice of termination is revoked in accordance with
Section 2.09. Promptly following receipt of any such notice relating to a
Borrowing, the Administrative Agent shall advise the applicable Lenders of the
contents 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, except as necessary to apply fully
the required amount of a mandatory prepayment. Each prepayment of a Borrowing
shall be applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.14. Prepayments shall be applied first, to any ABR
Borrowings comprising all or a part of the Class being prepaid and second,
if (or once) no ABR Borrowings of such Class remain outstanding, to
outstanding Eurocurrency Borrowings of such Class with the shortest
Interest Periods remaining.


 


(c)           In
the event and on each occasion that any Net Proceeds are received by or on
behalf of the Borrower or any Subsidiary (i) in respect of any Prepayment
Event described in clause (a) of the definition of the term “Prepayment
Event”, the Borrower shall, within ten Business Days after such Net Proceeds
are received, prepay first, Term X Borrowings and second, Term A
Borrowings and Term B Borrowings, ratably and (ii) in respect of any other
Prepayment Event described in the definition of the term “Prepayment Event”,
the Borrower shall (subject to the following sentence, including the provisos
thereto), within ten Business Days after such Net Proceeds are received, prepay
first, Term X Borrowings and second, Term A Borrowings and Term B
Borrowings, ratably. The prepayments required pursuant to this
Section 2.12(c) shall be made ratably, in each case in an aggregate
amount equal to (i) prior to repayment in full of the Term X Loans, 100%
of the amount of such Net Proceeds, and (ii) thereafter, the Applicable
Prepayment Percentage of the amount of such Net Proceeds, provided that
in the case of any such event described in clause (a) (following repayment
in full of the Term X Loans) or (b) of the definition of the term
“Prepayment Event,” if any Borrower or any Subsidiary applies (or commits to
apply) the Net Proceeds from such event (or a portion thereof) within twelve  months
after receipt of such Net Proceeds and at a time when no Event of Default has
occurred and is continuing to pay all or a portion of the purchase price in
connection with a Permitted Acquisition or to acquire, restore, replace,
rebuild, develop, maintain or upgrade real property, equipment or other tangible
assets useful or to be used in the business of the Borrower and the
Subsidiaries, provided that, in each case, the Borrower has delivered to
the Administrative Agent


 


56

















 


within ten days after such Net Proceeds are
received a certificate of its Financial Officer stating its intention to do so
and certifying that no Event of Default has occurred and is continuing, then no
prepayment shall be required pursuant to this paragraph in respect of the Net
Proceeds in respect of such event (or the portion of such Net Proceeds
specified in such certificate, if applicable) except (x) to the extent of
any such Net Proceeds therefrom that have not been so applied (or committed to
be so applied) by the end of such twelve-month period, (or if committed to be
so applied within such twelve-month period, have not been so applied within 18
months after receipt), or (y) if an Event of Default shall thereafter
occur and such Net Proceeds have not yet been so applied or committed to be so
applied, at which time a prepayment shall be required in an amount equal to
such Net Proceeds that have not been so applied (or committed to be so applied)
prior to the expiration of such period or the occurrence of such Event of
Default. The Borrower shall provide to the Administrative Agent any such
evidence reasonably requested by the Administrative Agent with respect to any
commitment of any Borrower or any Subsidiary to apply Net Proceeds in
accordance with this Section 2.12(c).


 


(d)         Following
the end of each fiscal year of Borrower, commencing with the fiscal year ending
December 31, 2009, the Borrower shall prepay the Term A Borrowings and
Term B Borrowings ratably, in each case in an aggregate amount equal to
(i) Excess Cash Flow for such fiscal year multiplied by the Applicable
Prepayment Percentage, less (ii) the amount of optional prepayments of
principal under the Term Loans made during such fiscal year. Each prepayment
pursuant to this paragraph shall be made before the date that is ten Business
Days after the date on which financial statements are delivered pursuant to
Section 5.01 with respect to the fiscal year for which Excess Cash Flow is
being calculated (and in any event within 95 days after the end of such fiscal
year).


 


(e)          Prior
to any optional prepayment of Borrowings hereunder, the Borrower shall select
the Borrowing or Borrowings to be prepaid and shall specify such selection in
the notice of such prepayment pursuant to paragraph (b) of this Section; provided
that at any time prior to repayment in full of the Term X Loans, any optional
prepayment of the Term Loans shall first be applied to repay the Term X Loans
to the extent thereof.


 


(f)          (i) If
after the Effective Date and on or prior to the Initial Borrowing Date
(i) any Prepayment Event shall occur and (ii) prior to the initial
extension of credit hereunder, the Borrower shall not have reduced the
applicable Term Commitment by an amount corresponding to the amount of
mandatory prepayment which the Borrower would have been required to make in
respect of the Term A Loan, Term B Loan or Term X Loan, as applicable, as a
result of such Prepayment Event had the Term Loans been outstanding at the time
thereof in the amount of the corresponding Term Commitment specified in Article I
hereof, then on the Business Day next following the Initial Borrowing Date, the
Borrower shall prepay the applicable Term Loans in the amount which would have
been required to be prepaid in respect of such Prepayment Event had such Term
Loan been outstanding at the time of such Prepayment Event.


 


(g)         In
the event of any voluntary or mandatory prepayment of the Term B Loan made (or,
in the event of mandatory prepayments, due) on or prior to the first
anniversary of the Initial Borrowing Date, on the date of prepayment the
Borrower shall pay the Administrative Agent for the ratable benefit of the
holders of the Term B Loan a prepayment premium in an amount equal to 1% of the
principal amount prepaid.


 


57
















 


SECTION 2.13.      Fees. (a) The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee, which shall accrue at the Applicable Rate on
(i) the average daily difference between the Revolving Commitment of such
Lender and the Revolving Credit Exposure (excluding Swingline Exposure) of such
Lender during the period from and including the Effective Date to but excluding
the date on which such Revolving Commitment terminates and (ii) the
average daily difference between the Term Commitments of such Lender and the
outstanding Term Loans by such Lender during the period from and including the
Effective Date to but excluding the date on which the applicable Term
Commitments terminate. 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 applicable Commitments terminate, commencing on the
first such date to occur after the Effective Date. All commitment fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).


 


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


 


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


 


58

















 


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


 


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


 


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


 


SECTION 2.14.      Interest. (a) The
Loans comprising each ABR Borrowing (including each Swingline Dollar Loan)
shall bear interest at the Alternate Base Rate plus the Applicable Rate.


 


(b)           The Loans comprising
each Eurocurrency Borrowing (other than Alternate Currency Loans) shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate. Alternate Currency Loans shall bear interest at the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
(without the addition of the Applicable Rate), in addition to the fees set
forth in Section 2.13(c).


 


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


 


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


 


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


 


59

















 


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


 


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


 


SECTION 2.15.      Alternate Rate of
Interest. If prior to the commencement of any Interest Period for a
Eurocurrency Borrowing denominated in any currency:


 


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


 


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


 


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


 


SECTION 2.16.      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


 


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extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO
Rate or in payments required by Section 2.22) or the Issuing Bank; or


 


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


 


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


 


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


 


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


 


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


 


61

















 


costs or reductions is
retroactive, then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.


 


SECTION 2.17.      Break Funding Payments.
In the event of (a) the payment of any principal of any Eurocurrency Loan
other than on the last day of an Interest Period applicable thereto (including
as a result of an Event of Default), (b) the conversion of any
Eurocurrency Loan other than on the last day of the Interest Period applicable thereto,
(c) the failure to borrow, convert, continue or prepay any Eurocurrency
Loan on the date specified in any notice delivered pursuant hereto (regardless
of whether such notice may be revoked under Section 2.12(b) and is
revoked in accordance therewith) or (d) the assignment of any Eurocurrency
Loan other than on the last day of the Interest Period applicable thereto as a
result of a request by the Borrower pursuant to Section 2.20, then, in any
such event, the Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a Eurocurrency Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable
to such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period
for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for deposits in
the applicable currency of a comparable amount and period from other banks in
the eurocurrency market. A certificate of any Lender setting forth in
reasonable detail any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.


 


SECTION 2.18.      Taxes.
(a) Subject to Section 2.18(h), any and all payments by or on account
of any obligation of any of the Borrowers hereunder shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes; provided
that if any of the Borrowers shall be required to deduct any Indemnified Taxes
or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the
Administrative Agent, Lender or Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) the Applicable Borrower shall make such deductions and
(iii) the Applicable Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.


 


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


 


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


 


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imposed or asserted on or
attributable to amounts payable under this Section) 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. A certificate in reasonable
detail as to the amount of such payment or liability delivered to the Borrower
by a Lender or the Issuing Bank, or by the Administrative Agent on its own
behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive absent
manifest error.


 


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


 


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


 


(f)            If the Administrative
Agent and Issuing Bank or a Lender determines that it has received a refund of
any Taxes or Other Taxes as to which it has been indemnified by one of the
Borrowers or with respect to which one of the Borrowers has paid additional
amounts pursuant to this Section 2.18, it shall pay over to the Applicable
Borrower the amount of such refund (but only to the extent of indemnity
payments made, or additional amounts paid, by the Applicable Borrower under
this Section 2.18 with respect to the Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of the Administrative Agent,
Issuing Bank, or such Lender (as the case may be) and without interest (other
than any interest paid by the relevant Governmental Authority with respect to
such refund); provided that the Applicable Borrower, upon the request of
the Administrative Agent, Issuing Bank or Lender (as the case may be), agrees
to repay the amount paid over to the Applicable Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to
the Administrative Agent, Issuing Bank, or Lender (as the case may be) in the
event the Administrative Agent, Issuing Bank or Lender (as the case may be) is
required to repay such refund to such Governmental Authority. This
Section shall not be construed to require the Administrative Agent or any
Lender to make available its tax returns (or any other information relating to
its taxes which it deems confidential) to any of the Borrowers or any other Person.


 


(g)           Each of the Borrowers
that is either resident in the United Kingdom for United Kingdom tax purpose or
that otherwise makes payments under this Agreement that have a United Kingdom
source (in each case, a “UK Borrower”) must make all payments hereunder
without any deduction or withholding for or on account of United Kingdom Taxes (“UK
Tax Deduction”), unless a UK Tax Deduction is required by law. If such a UK
Tax Deduction is required by law, the amount of the payment due from the UK
Borrower in question will be


 


63

















 


increased by an amount which
(after making all UK Tax Deductions) leaves an amount equal to the payment
which would have been due had no UK Tax Deduction been required.


 


(h)           Except as provided
below, a UK Borrower is not required to make an increased payment under
paragraph (g) above for a UK Tax Deduction:


 


(i)            if
on the date on which the payment in respect of which the UK Tax Deduction is
required falls due, the payment could have been made to the relevant Lender
without a UK Tax Deduction if it was, or had not ceased to be, a Qualifying
Lender, but on that date that Lender is not, or has ceased to be, a Qualifying
Lender in respect of that UK Borrower;


 


(ii)           if
the relevant Lender is a Treaty Lender and the UK Borrower making the payment
is able to demonstrate that the UK Tax Deduction would not have been required
if the Lender had complied with its obligations under paragraph
2.18(e) above; or


 


(iii)          If on the date on which
the payment falls due:


 


(A)          the
relevant Lender is a Qualifying Lender solely under sub-paragraphs
(ii) and (iii) of the definition of UK Lender;


 


(B)           an
officer of HM Revenue & Customs has given (and not revoked a
direction) (a “Direction”) under section 931 of the Income Tax Act 2007 (as
that provision has effect on the date on which the relevant Lender became a
party to this Agreement) which relates to that payment and that Lender has
received from that UK Borrower a certified copy of that Direction; and


 


(C)           the
payment could have been made to the Lender with out any Tax Deduction in the
absence of that Direction; or


 


(iv)          the
relevant Lender is a Qualifying Lender solely under sub- paragraphs
(ii) and (iii) of the definition of UK Lender and it has not, other
than by reason of any change after the date of this Agreement in (or in the
interpretation, administration or application of) any law, or any published
practice or concession of any relevant taxing authority, given a Tax
Confirmation to the Borrowers.


 


(i)            Paragraph
(h)(i) above will not apply if the relevant Lender has ceased to be a
Qualifying Lender in respect of that UK Borrower by reason of any change after
the date it became a Lender under this Agreement in (or in the interpretation,
administration or application of) any law or treaty or any published practice
or concession of any relevant taxing authority.


 


(j)            If a UK Borrower is
required to make a UK Tax Deduction, that UK Borrower must make the minimum UK
Tax Deduction allowed by law and must make any payment required in connection
with that UK Tax Deduction within the time allowed by law.


 


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(k)           Within 30 days of
making either a UK Tax Deduction or a payment required in connection with a UK
Tax Deduction, the UK Borrower making that UK Tax Deduction or payment must
deliver to the Administrative Agent evidence satisfactory to that Lender
(acting reasonably) that the UK Tax Deduction has been made or (as applicable)
the appropriate payment has been paid to Her Majesty’s Revenue and Customs.


 


(l)            If a Lender is
expressed to be a UK Lender then it shall confirm to the Borrowers that it is a
UK Lender by entering into this Agreement. A UK Lender must promptly notify the
Borrower if it ceases to be a UK Lender.


 


(m)          For the purposes of this
Section 2.18:


 


“Qualifying
Lender” means a Lender which is:


 


(i)            a UK Lender; or


 


(ii)           a Treaty Lender;


 


“Tax
Confirmation” means a confirmation by a UK Lender that the person
beneficially entitled to interest payable to that UK Lender in respect of a
Loan is either:


 


(i)            a company resident in
the United Kingdom for United Kingdom tax purposes; or


 


(ii)           a
company not so resident in the United Kingdom which carries on a trade in the
United Kingdom through a permanent establishment and which brings into account
interest payable in respect of that advance in computing the chargeable profits
(for the purposes of section 11(2) of the United Kingdom Income and
Corporation Taxes Act 1988) of that company.


 


“Treaty Lender” means, in respect of a UK Borrower, a Lender
which:


 


(i)            is
treated as resident of a Treaty State for the purposes of a double taxation
agreement with the United Kingdom;


 


(ii)           does
not carry on a business in the United Kingdom through a permanent establishment
with which that Lender’s participation in the Loan is effectively connected;
and


 


(iii)          meets
all other conditions in the relevant double taxation agreement for full
exemption from tax imposed by the United Kingdom on interest, except that for
this purpose it shall be assumed that the following are satisfied:


 


(A)          any
condition which relates (expressly or by implication) to there being a special
relationship between the UK Borrower and a Lender or between both of them and
another person,


 


65

















 


or to the
amounts or terms of any Loan or the Credit Documents, or to any other matter
that is outside the exclusive control of that Lender; and


 


(B)           any necessary
procedural formalities.


 


“Treaty
State” means a jurisdiction having a double taxation agreement with the
United Kingdom which makes provision for full exemption from tax imposed by the
United Kingdom on interest.


 


“UK Lender”
means a Lender which is:


 


(i)            within
the charge to United Kingdom corporation tax in respect of, and beneficially
entitled to, a payment of interest on a Loan made by a person that was a bank
for the purposes of section 879 of the United Kingdom Income Tax Act 2007 at
the time the Loan was made;


 


(ii)           a
company resident in the United Kingdom for United Kingdom tax purposes; or


 


(iii)          a
company not so resident in the United Kingdom which carries on a trade in the
United Kingdom through a permanent establishment and is required to bring into
account interest paid to it under this Agreement in computing its chargeable
profits (for the purposes of section 11(2) of the United Kingdom Income
and Corporation Taxes Act 1988).


 


SECTION 2.19.      Payments Generally; Pro
Rata Treatment; Sharing of Set-offs. (a) Each of the Borrowers shall
make each payment required to be made by it hereunder (whether of principal,
interest, fees or reimbursement of LC Disbursements, or of amounts payable
under Section 2.16, 2.17 or 2.18, or otherwise) prior to 12:00 noon, New
York City time, on the date when due, in immediately available funds, without
set-off or counterclaim. Any amounts received after such time on any date may,
in the discretion of the Administrative Agent, be deemed to have been received
on the next succeeding Business Day for purposes of calculating interest thereon.
All such payments shall be made to the Administrative Agent at its offices at
270 Park Avenue, New York, New York, except payments to be made directly to the
Issuing Bank, Alternate Currency Fronting Lender or Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.16,
2.17, 2.18 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder of (i) principal or interest in respect of any Loan shall be
made in the currency in which such Loan is denominated, (ii) reimbursement
obligations shall be made in the currency in which the Letter of Credit in
respect of which such reimbursement obligation exists is denominated or
(iii) any other amount due hereunder or under another Credit Document
shall be made in Dollars. Any payment required to be made by the Administrative


 


66

















 


Agent hereunder shall be deemed
to have been made by the time required if the Administrative Agent shall at or
before such time, have taken the necessary steps to make such payment in
accordance with the regulations or operating procedures of the clearing or
settlement system used by the Administrative Agent to make such payment.


 


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


 


(c)           If any Lender shall, by
exercising any right of set off or counterclaim or otherwise, obtain payment in
respect of (i) any obligations due and payable to such Lender hereunder or
under the other Credit Documents at such time in excess of its ratable share
(according to the proportion of (A) the amount of such obligations due and
payable to such Lender at such time to (B) the aggregate amount of
obligations due and payable to all Lenders hereunder and under the other Credit
Documents at such time) of payments on account of obligations due and payable
to all Lenders hereunder and under the other Credit Documents at such time
obtained by all the Lenders at such time or (ii) any obligations owing
(but not due and payable) to such Lender hereunder and under the other Credit
Documents at such time in excess of its ratable share (according to the
proportion of (A) the amount of such obligations owing (but not due and
payable) to such Lender at such time to (B) the aggregate amount of
obligations owing (but not due and payable) to all Lenders hereunder and under
the other Credit Documents at such time) of payments on account of obligations
owing (but not due and payable) to all Lenders hereunder and under the other
Credit Documents at such time obtained by all the Lenders at such time, then
the Lender receiving such greater proportion shall notify the Administrative
Agent of such fact and shall purchase (for cash at face value) participations
in the Term Loans, Revolving Loans and participations in LC Disbursements,
Alternate Currency Loans and Swingline Loans of other Lenders, as applicable,
or make such other adjustments as shall be equitable, to the extent necessary
so that the benefit of all such payments shall be shared by the Lenders ratably
in accordance with the aggregate amount of obligations then due and payable to
the Lenders or owing (but not due and payable) to the Lenders, as the case may
be; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this
paragraph shall not be construed to apply to any payment made by any of the
Borrowers pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements, Alternate Currency Loans and Swingline Loans to any
assignee or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall apply).
Each of the Borrowers consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Applicable


 


67

















 


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


 


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


 


(e)           If any Lender shall
fail to make any payment required to be made by it pursuant to
Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.19(d) or 9.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are
fully paid.


 


SECTION 2.20.      Mitigation Obligations;
Replacement of Lenders. (a) If any Lender requests compensation under
Section 2.16, or if any of the Borrowers is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.18, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 2.16 or 2.18, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.


 


(b)           If any Lender requests
compensation under Section 2.16, or if any of the Borrowers is required to
pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.18, or if any Lender defaults
in its obligation to fund Loans hereunder, then the Borrower may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in Section 9.04), all its
interests, rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and
if a Revolving Commitment is being assigned, the Issuing Bank), which consent
shall


 


68

















 


not unreasonably be withheld,
(ii) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements and Swingline
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Borrower (in the case of all other
amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.16 or payments required to be made
pursuant to Section 2.18, such assignment will result in a reduction in
such compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.


 


(c)           If, in connection with
any proposed amendment, modification or waiver pursuant to Section 9.02 (a
“Proposed Change”) requiring the consent of all or all affected Lenders,
the consent of the Required Lenders is obtained, but the consent of other
Lenders whose consent is required is not obtained (any such Lender whose
consent is not obtained as described in this clause (c) being referred to
as a “Non-Consenting Lender”), then, so long as the Administrative Agent
is not a Non-Consenting Lender, at the Borrower’s request and at its sole cost
and expense, the Administrative Agent, or a Person or Persons reasonably
acceptable to the Administrative Agent, shall have the right with the
Administrative Agent’s consent (but shall have no obligation) to purchase from
such Non-Consenting Lenders, and such Non-Consenting Lenders agree that they
shall, upon the Administrative Agent’s request, sell and assign to the
Administrative Agent or such Person, all of the Loans and Commitments of such
Non- Consenting Lenders for an amount equal to the principal balance of all
Loans held by the Non- Consenting Lenders and all accrued interest, fees and
other amounts with respect thereto through the date of the sale, such purchase
and sale to be consummated at par pursuant to an Assignment and Assumption
(with the Borrower or the assignee paying any applicable assignment fee). Any
such required sale and assignment shall be treated as a prepayment for purposes
of Section 2.17 and the Borrower shall be liable for any amounts payable
thereunder as a result of such sale and assignment.


 


SECTION 2.21.      Subsidiary Borrowers.


 


(a)           The Borrower may, at
any time or from time to time, designate one or more Wholly-Owned Foreign
Subsidiaries of the Borrower as a “Subsidiary Borrower” hereunder by furnishing
to the Administrative Agent and the Lenders at least five Business Days before
such designation is to take effect a Designation Letter in duplicate, duly
completed and executed by the Borrower and such Wholly-Owned Foreign
Subsidiary, together with (i) the items described in paragraphs
(h) and (i) of Section 4.01 of the Original Credit Agreement
relating to such Subsidiary Borrower in form and substance satisfactory to the
Administrative Agent, (ii) such security agreements and similar documents
as the Administrative Agent shall reasonably request to accomplish the pledge
by such Subsidiary Borrower of substantially all of its assets (other than Real
Property) and such immaterial assets as may be agreed upon between the
Administrative Agent and the Borrower) to secure the obligations of such
Subsidiary Borrower hereunder and under the Designation Letter, and
(iii) such other documents and information (including information relating
to “know your customer” rules and regulations) as the Administrative Agent
shall reasonably request. Upon any such designation of a Wholly-Owned Foreign
Subsidiary and the consent of each of the Lenders, which will not be


 


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unreasonably withheld, such
Subsidiary shall be a Subsidiary Borrower hereunder (with the related rights
and obligations) and shall be entitled to request Revolving Loans on and
subject to the terms and conditions of, and to the extent provided in, this
Agreement; provided, however, that if the Borrower so indicates
in the applicable Designation Letter, the Subsidiary Borrower may be entitled
to request only Alternate Currency Loans, in which case such Subsidiary
Borrower shall then be entitled to request Alternate Currency Loans on and
subject to the terms and conditions of, and to the extent provided in, this
Agreement and the consent to such designation of only the Administrative Agent
and the applicable Alternate Currency Lenders shall be required.


 


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


 


(c)           BPGR and Manitowoc Asia
Holdings as the initial Subsidiary Borrowers, hereby agree to be bound by the
provisions of the second sentence of the third paragraph of the attached form
of Designation Letter as if the same were fully set forth herein. The
provisions of Section 2.21(a)(ii) shall not be applicable to such
Subsidiary Borrowers. It is agreed that BPGR and Manitowoc Asia Holdings shall
be entitled to request Alternate Currency Loans only and shall not be entitled
to receive Loans pursuant to Section 2.01(a).


 


SECTION 2.22.      Additional Reserve Costs.
(a) For so long as any Lender is required to comply with (a) the
requirements of the Bank of England and/or the Financial Services Authority
(or, in either case, any other authority which replaces all or any of its
functions) or (b) the requirements of the European Central Bank, in each
case in respect of such Lender’s Eurocurrency Loans or Swingline Foreign
Currency Loans, such Lender shall be entitled to require the Applicable
Borrower to pay, contemporaneously with each payment of interest on each of
such Loans, additional interest on such Loan at a rate per annum equal to the
Mandatory Cost Rate calculated in accordance with the formula and in the manner
set forth in Schedule 2.22 hereto.


 


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


 


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


 


ARTICLE III


 


Representations and Warranties


 


The Borrower
represents and warrants to the Lenders that:


 


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


 


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


 


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


 


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Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries, other than Permitted Liens.


 


SECTION 3.04.      Financial Condition; No
Material Adverse Change. (a) The Borrower has heretofore furnished to
the Lenders its consolidated balance sheet and statements of income,
stockholders equity and cash flows as of and for the fiscal year ended
December 31, 2007, reported on by Pricewaterhouse Coopers LLP, independent
public accountants. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of
the Borrower and its consolidated Subsidiaries as of such date and for such
period in accordance with GAAP.


 


(b)           Since December 31,
2007, there has been no material adverse change in the business, assets,
operations, prospects or condition, financial or otherwise, of the Borrower and
its Subsidiaries, taken as a whole.


 


SECTION 3.05.      Properties.
(a) Each of the Borrower and its Subsidiaries has good title to, or valid
leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes, and free and clear of all Liens, other
than Permitted Liens. All Real Property having a fair market value in excess of
$5,000,000 owned by the Borrower or any of the Subsidiary Guarantors as of the
Effective Date is set forth on Schedule 3.05. Schedule 3.05 also sets forth
(i) the locations of all leased Real Property of the Borrower or any Subsidiary
Guarantor where equipment and/or inventory having a fair market value in excess
of $500,000 in the aggregate (as determined at any time during the immediately
preceding four fiscal quarters) is held as of the Effective Date, and
(ii) the locations where such equipment and/or inventory is held pursuant
to bailment arrangements as of the Effective Date.


 


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


 


SECTION 3.06.      Litigation and
Environmental Matters. (a) There are no actions, suits or proceedings
by or before any arbitrator or Governmental Authority pending against or, to
the knowledge of the Borrower, threatened against or affecting the Borrower or
any of its Subsidiaries (i) as to which there is a reasonable possibility
of an adverse determination and that, if adversely determined, could reasonably
be expected, individually or in the aggregate, to result in a Material Adverse
Effect or (ii) that involve the Credit Documents or the Transactions.


 


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


 


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notice of any claim with
respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability.


 


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


 


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


 


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


 


SECTION 3.10.      ERISA; Foreign Pension
Plans. (a) No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. Except as set forth on Schedule 3.10, the
present value of all accumulated benefit obligations under each Plan (based on
the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements prior to the Effective Date reflecting such amounts, exceed by more
than $20,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent
financial statements prior to the Effective Date reflecting such amounts,
exceed by more than $20,000,000 the fair market value of the assets of all such
underfunded Plans.


 


(b)           Each Foreign Pension
Plan has been maintained in substantial compliance with its terms and in
substantial compliance with the requirements of any and all applicable laws,
statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. All
contributions required to be made with respect to a Foreign Pension Plan have
been timely made. Neither the Borrower nor any of its Subsidiaries has incurred
any material obligation in connection with the termination of or withdrawal
from any Foreign Pension Plan. Except as set forth on Schedule 3.10, the
present value of the accrued benefit liabilities (whether or not vested) under
each Foreign Pension Plan, determined as of the end of the Borrower’s most
recently ended fiscal year prior to the Effective Date on the basis of
actuarial assumptions, each of which is reasonable, did not exceed by more than
$20,000,000 the current value of the assets of such Foreign Pension Plan allocable
to such benefit liabilities.


 


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(c)           To the Borrower’s
knowledge, (i) there are no grounds to suspect that the Pensions Regulator
would have the power to issue a Financial Support Direction or a Contribution
Notice to any member of the Target Group as a result of the consummation of the
Acquisition or the Transactions or, if the Pensions Regulator had such a power,
it would not be reasonable for it to exercise such a power, in each case with
respect to any of the UK defined benefit pension schemes operated by or
maintained for the benefit of members of the Target Group; and (ii) there
is no requirement (and no requirement will arise) to notify, or, in consequence
of (i) above, the Borrower does not consider it necessary to seek any
clearance from, the Pensions Regulator as a result of the consummation of the
Acquisition or the Transactions. Under the terms of the UK defined benefit
pension schemes operated by or maintained for the benefit of members of the
Target Group, the pension trustees do not have the power to unilaterally wind
up those schemes or to unilaterally increase the contributions required to be
made by the members of the Target Group.


 


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


 


SECTION 3.12.      The Security Documents.
(a) The provisions of the Security Documents are effective to create in
favor of the Collateral Agent for the benefit of the Secured Creditors a legal,
valid and enforceable security interest in all right, title and interest of the
Credit Parties in the US Security Agreement Collateral and UK Security
Agreement Collateral described therein, and the Collateral Agent, for the
benefit of the Secured Creditors, will have, upon its taking all actions required
of it under the UCC, a fully perfected security interest in all right, title
and interest in all of the US Security Agreement Collateral described therein
(to the extent that such security interest can be perfected by filing a UCC
financing statement or, to the extent required by the US Security Agreement, by
taking possession of (or taking certain other actions with respect to) the
respective US Security Agreement Collateral), subject to no other Liens other
than Permitted Liens. In addition, the recordation of (x) the Grant of
Security Interest in U.S. Patents and (y) the Grant of Security Interest
in U.S. Trademarks in the respective forms attached to the US Security
Agreement, in each case in the United States Patent and Trademark Office, together
with UCC filings made pursuant to the US Security Agreement, will create, as
may be perfected by such filings and recordation, a perfected security interest
in the United States trademarks and patents covered by the US Security
Agreement, and the recordation of the Grant of Security Interest in U.S.
Copyrights in the form attached to the US Security Agreement with the United
States Copyright Office, together with UCC filings made pursuant to the US
Security Agreement, will create, as may be perfected by such filings


 


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and recordation, a perfected
security interest in the United States copyrights covered by the US Security
Agreement.


 


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


 


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


 


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


 


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


 


SECTION 3.16.      Regulation U. Margin
stock (as defined in Regulation U of the Board of Governors of the Federal
Reserve System) constitutes less than 25% of the value of those assets of the
Borrower and its Subsidiaries which are subject to any limitation on sale,
pledge, or other restriction hereunder. Neither the making of any Loan or
issuance of any Letters of Credit hereunder, the use of the proceeds thereof,
nor any other aspect of the financing of the Acquisition, will violate or be
inconsistent with the provisions of Regulation T, Regulation U or Regulation X
of the Board of Governors of the Federal Reserve System.


 


SECTION 3.17.      Solvency. On the
Initial Borrowing Date, after giving effect to the consummation of the
transactions contemplated hereby and by the Transaction Documents and the
payment of all fees, costs and expenses payable by the Borrower with respect to
the transactions contemplated hereby and by the Transaction Documents,
(a) on a going concern basis the fair market value of the assets of the
Borrower and its Subsidiaries, on a consolidated basis, will exceed their debts
and liabilities, subordinated, contingent or otherwise, (b) the present
fair saleable value of the property of the Borrower and its Subsidiaries, on a


 


75

















 


consolidated basis, will be
greater than the amount that will be required to pay their debts and other
liabilities, subordinated, contingent or otherwise, as such debts or other
liabilities become absolute and matured in the ordinary course, (c) the
Borrower and its Subsidiaries, on a consolidated basis, are able to pay their
debts and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured in the ordinary course, and
(d) the Borrower and its Subsidiaries, on a consolidated basis, do not
have unreasonably small capital with which to conduct the business in which
they are engaged as such business is now conducted and is proposed to be
conducted following the Initial Borrowing Date. The amount of contingent
liabilities at any time shall be computed as the amount that can reasonably be
expected to become an actual and matured liability.


 


ARTICLE IV


 


Conditions


 


SECTION 4.01.      Effectiveness. This
Agreement shall become effective upon, and only upon, the satisfaction of each
of the following conditions precedent:


 


(a)           The Administrative
Agent (or its counsel) shall have received from each Credit Party and each
financial institution identified on Schedule 2.01 either (i) a counterpart
hereof (and, as applicable, of a Reaffirmation of Guaranty and Security
Documents in the form of Exhibit H hereto) signed on behalf of such Credit
Party or financial institution or (ii) written evidence satisfactory to
the Administrative Agent (which may include telecopy or electronic transmission
of a signed signature page of this Agreement or such Reaffirmation of
Guaranty and Security Documents) that such party has signed a counterpart of
such document.


 


(b)           The Administrative Agent
shall have received documents and certificates relating to the authorization of
this Amendment and the transactions contemplated hereby by the Borrowers and
each Subsidiary Guarantor in form and substance satisfactory to the
Administrative Agent.


 


(c)           The Administrative
Agent shall have received an executed legal opinion (addressed to the
Administrative Agent and the Lenders) from Foley & Lardner LLP in form
and substance satisfactory to the Administrative Agent. The Borrower hereby
requests such counsel to deliver such opinion.


 


(d)           The Borrowers shall
have provided such other corporate and other certificates, opinions, documents,
instruments and agreements as the Administrative Agent may reasonably request.


 


The first date upon which all
of the foregoing conditions shall have been satisfied is referred to as the
“Restatement Date”. The Administrative Agent shall notify the Borrower and the
Lenders promptly of the occurrence of the Restatement Date and such notice
shall be conclusive and binding on all parties hereto. In the event the
Restatement Date has not occurred on or before September 2, 2008, this
Agreement shall not become operative and shall be of no force or effect (in
which case the Original Credit Agreement shall remain in full force and effect).


 


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SECTION 4.02.      Initial Funding. The
obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit hereunder shall not become effective until the date on which
this Agreement has become effective pursuant to Section 4.01 and each of
the following conditions is satisfied (or waived in accordance with
Section 9.02):


 


(a)           The Administrative
Agent shall have received a certificate, dated the Initial Borrowing Date and
signed by the President, a Vice President or a Financial Officer of the
Borrower, confirming compliance as of such date with the conditions set forth
in paragraphs (a), (b) and (c) of Section 4.03 or, with respect
to Certain Funds Loans during the Certain Funds Period, the conditions set
forth in Section 4.04(a).


 


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


 


(c)           (i) The
Administrative Agent shall have received evidence that the Borrower has
delivered to the Existing Agent an irrevocable notice with respect to the
Existing Credit Agreement, notifying the Existing Agent that on the Initial
Borrowing Date, the total commitments under the Existing Credit Agreement will
be terminated, all loans thereunder will be repaid in full, together with
interest thereon, all letters of credit, if any, issued thereunder will be
terminated (or shall constitute Existing Letters of Credit hereunder) and all
other amounts owing pursuant to the Existing Credit Agreement and all
agreements related thereto will be repaid in full and (ii) the Borrower
shall have irrevocably directed the Administrative Agent to disburse to the
Existing Agent out of the proceeds of Loans being made on the Initial Borrowing
Date an amount sufficient to effect such repayment in full.


 


(d)           The Administrative
Agent shall have received (i) all stock (or unit) certificates evidencing
all Equity Interests to be pledged pursuant to the US Pledge Agreement,
accompanied by stock (or unit) powers executed in blank, and all notes to be
pledged pursuant to the US Pledge Agreement (including notes evidencing
indebtedness required to be so evidenced pursuant to Section 6.05),
accompanied by note powers executed in blank (provided that to the
extent that such certificates are in the possession of the Existing Agent, this
condition shall be satisfied by receipt by the Administrative Agent of evidence
that the Borrower has irrevocably directed the Existing Agent to immediately
deliver upon termination of commitments and repayment of amounts due under the
Existing Credit Agreement, all such certificates to the Administrative Agent),
(ii) all share certificates evidencing all Equity Interests in Newco to be
charged pursuant to the UK Security Agreement, accompanied by executed and
(unless exempt from stamp duty), pre-stamped share transfers with the
transferee left blank, and (iii) pledged certificates or statements of
pledge, as applicable, in the form attached to the French Pledge Agreement.


 


(e)           Substantially
contemporaneously with the making of the initial Loans, the Administrative
Agent shall have received duly executed copies of (i) Mortgages (in
substantially the form of Exhibit E or F, as applicable) with respect to
the Real Property and leasehold mortgages identified on Schedule 4.02 (other
than the Marine Mortgages) and (ii) such duly


 


77

















 


executed promissory notes
evidencing the Loans as may have been requested pursuant to
Section 2.10(e).


 


(f)            In the case of an
Offer, the Administrative Agent shall have received evidence that the board of
directors of the Target shall have recommended the Acquisition.


 


(g)           The Administrative
Agent shall have received certified copies of the Acquisition Documents (it
being acknowledged that if the Scheme Document and Offer Document conform with
Sections 5.14(a)(iv) and 5.15(a)(iv), respectively, they shall be
satisfactory to the Administrative Agent).


 


(h)           The Administrative
Agent shall have received a certificate of the Borrower dated no earlier than
the Initial Borrowing Date confirming and attaching evidence that, (i) the
Unconditional Date has occurred, (ii) (A) the European Commission has
taken a decision that it will not initiate proceedings under
Article 6(1)(c) of the EC Merger Regulation, (B) the European
Commission has taken a decision (or has been deemed to have taken a decision)
to refer the whole or part of the Offer or Scheme to the competent authorities
of one or more member states of the European Union under
Article 9(3) of the EC Merger Regulation; and (x) each such
authority has taken a decision with equivalent effect to that referred to in
Section 4.02(h)(ii)(A) with respect to those parts of the Offer or
Scheme referred to it; and (y) the European Commission has taken any of
the decisions referred to in Section 4.02(h)(ii)(A) with respect to
any part of the Offer or Scheme retained by it; and (C) all required
filings have been made and any waiting period, including any extensions
thereof, applicable under the United States Hart-Scott-Rodino Antitrust
Improvements Act of 1976 (as amended) and the regulations made thereunder has
expired, lapsed or been terminated, (iii) Newco has not agreed to any
arrangements with any Governmental Authority in order to satisfy any term or
condition of the Offer or Scheme without the consent of the Required Lenders (other
than the disposition of certain subsidiaries or businesses of the Borrower or
Target) and (iv) either (A) the Acquisition is being effected by
means of the Scheme or (B) if not, each of the Lenders shall have
consented to the Acquisition being effected by means of the Offer.


 


The Administrative Agent shall
notify the Borrower and the Lenders promptly of the Initial Borrowing Date, and
such notice shall be conclusive and binding. Notwithstanding the foregoing, the
obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit hereunder shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section 9.02) at
or prior to 3:00 p.m., New York City time, on the last day of the Certain
Funds Period (and, in the event such conditions are not so satisfied or waived,
the Commitments shall terminate at such time).


 


SECTION 4.03.      Each Credit Event.
The obligation of each Lender to make a Loan on the occasion of any Borrowing,
and of the Issuing Bank to issue, amend, renew or extend any Letter of Credit,
is subject to the satisfaction of the following conditions:


 


(a)           The representations and
warranties of each Credit Party set forth in the Credit Documents shall be true
and correct in all material respects (except that any representation or
warranty which is already qualified as to materiality or by reference to
Material Adverse Effect shall be true and correct in all respects) on and as of
the date of such Borrowing (other


 


78

















 


than representations and
warranties that relate solely to an earlier date) or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as applicable.


 


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


 


(c)           The requested extension
of credit is permitted by the Senior Note Documents. 


 


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


 


SECTION 4.04.      Conditions during Certain
Funds Period.


 


(a)           Notwithstanding
Section 4.03, the obligation of each Lender to make Certain Funds Loans
during the Certain Funds Period is only subject to the conditions set forth in
Section 4.02 and the further conditions that at the time of the Borrowing
Request with respect to such Loan and at the time of such Loan being made:


 


(i)            the
Major Representations are true and correct in all respects and will be true and
correct immediately after the Loan is made;


 


(ii)           no
Major Default shall have occurred and be continuing or would result from the
proposed Loan; and


 


(iii)          it
is not unlawful for such Lender to make the requested Loans.


 


(b)           During the Certain
Funds Period (other than in circumstances where a Lender is not obligated to
make a requested Loan pursuant to paragraph (a) above), none of the
Lenders or the Administrative Agent or the Collateral Agent shall be entitled
to:


 


(i)            cancel
any of its Commitments to the extent to do so would prevent or limit the making
of a Certain Funds Loan;


 


(ii)           rescind,
terminate or cancel this Agreement or any of the Commitments or exercise any
similar right or remedy or make or enforce any claim under the Credit Documents
it may have to the extent to do so would prevent or limit the making of a
Certain Funds Loan;


 


(iii)          refuse
to participate in the making of a Certain Funds Loan;


 


(iv)          exercise
any right of set-off or counterclaim in respect of a Loan to the extent to do
so would prevent or limit the making of a Certain Funds Loan; or


 


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(v)                                 cancel, accelerate or cause repayment or prepayment
of any amounts owing hereunder or under any other Credit Document to the extent
to do so would prevent or limit the making of a Certain Funds Loan;


 


provided that immediately upon the expiry of the Certain
Funds Period all such rights, remedies and entitlements shall be available to
the Lenders, the Administrative Agent and the Collateral Agent notwithstanding
that they may not have been used or been available for use during the Certain
Funds Period.


 


ARTICLE V


 


Affirmative Covenants


 


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


 


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


 


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


 


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


 


(c)          concurrently
with any delivery of financial statements under clause (a) or
(b) above, a certificate of a Financial Officer of the Borrower
(i) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (ii) setting forth reasonably detailed
calculations (x) of the amount of “Permitted Indebtedness” (as described
in part (2) of the


 


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definition thereof in the Senior Note
Indenture) then outstanding and then permitted to be incurred by the terms of
the Senior Note Indenture and (y) demonstrating compliance with Sections
6.07 through 6.08 and 6.15 and 6.16, (iii) stating whether any change in
GAAP or in the application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 and, if any such change
has occurred, specifying the effect of such change on the financial statements
accompanying such certificate and (iv) if the assets, liabilities or
results of operations of any FIN 46 Subsidiary are reflected in such financial
statements, attaching such additional information, all certified by a Financial
Officer of the Borrower and in form and detail satisfactory to the
Administrative Agent, as may be necessary to permit computation of all amounts
relevant to the determination of the Borrower’s compliance with this Agreement
(taking into account the fact that FIN 46 Subsidiaries and their respective
assets, liabilities and results of operations are excluded from all
computations made on a consolidated basis for the Borrower and its Subsidiaries
hereunder);


 


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


 


(e)          promptly
after the same become publicly available, copies of all periodic reports
(including reports on Form 8-K), proxy statements and other financial
materials filed by the Borrower or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or all of
the functions of said Commission, or with any national securities exchange, or
distributed by the Borrower to its shareholders generally, as the case may be;


 


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


 


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


 


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


 


Any financial statement or other material
required to be delivered pursuant to this Section 5.01 shall be deemed to
have been furnished to the Lenders on the date that an electronic copy of such
financial statement or other material is provided to the Administrative Agent
or is available to


 


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the Lenders on the website of the Securities
and Exchange Commission at http://www.sec.gov; provided that the Borrower will furnish paper copies of such financial statements
and other materials to any Lender that requests, by notice to the Borrower,
that the Borrower do so, until the Borrower receives notice from such Lender to
cease delivering such paper copies.


 


SECTION 5.02.      Notices of Material Events. The Borrower will furnish to the Administrative Agent and each Lender
written notice of the following promptly upon an officer of the Borrower
obtaining knowledge thereof:


 


(a)           the
occurrence of any Default;


 


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


 


(c)           the
occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability
of the Borrower and its Subsidiaries in an aggregate amount exceeding
$5,000,000; and


 


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


 


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


 


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


 


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


 


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


 


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same or similar businesses operating in the
same or similar locations and (c) cause all insurance policies or
certificates, as requested by the Administrative Agent, to be endorsed to the
benefit of the Administrative Agent (including, without limitation, by naming
the Administrative Agent as loss payee and/or additional insured). If the
Borrower or any of its Material Subsidiaries shall fail to maintain insurance
in accordance with this Section 5.05, or if the Borrower or any of its
Material Subsidiaries shall fail to so endorse and deliver all policies or
certificates with respect thereto, the Administrative Agent shall have the
right (but shall be under no obligation) to procure such insurance and the
Borrower agrees to reimburse the Administrative Agent for all reasonable costs
and expenses of procuring such insurance.


 


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


 


SECTION 5.07.      Compliance with Laws and Material Contractual Obligations. The Borrower will, and will cause each of its Subsidiaries to, comply
with (a) all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property, and (b) all material
contractual obligations, except in each case, 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. The proceeds of
the Loans will be used for
general corporate purposes, including to refinance existing Indebtedness of the
Borrower and its Subsidiaries, to finance the Acquisition, to pay related fees
and expenses. No part of the proceeds of any Loan will be used, whether
directly or indirectly, to purchase or carry Margin Stock or for any purpose
that entails a violation of any of the Regulations of the Board, including
Regulations T, U and X. Letters of Credit will be issued only to support the
ordinary course of business operations of the Borrower and its Subsidiaries.


 


SECTION 5.09.      Compliance with Environmental Laws. (a) The
Borrower will comply, and will
cause each of its Subsidiaries to comply, with all Environmental Laws and
permits applicable to, or required by, the ownership, lease or use of its Real
Property now or hereafter owned, leased or operated by the Borrower or any of
its Subsidiaries, except such noncompliances as could not, either individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect,
and will promptly pay or cause to be paid all costs and expenses incurred in
connection with such compliance, and will keep or cause to be kept all such
Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws. Neither the Borrower nor any of its Subsidiaries will
generate, use, treat, store, Release or dispose of, or permit the generation,
use, treatment, storage, Release or disposal of Hazardous Materials on any Real
Property now or hereafter owned, leased or operated by the Borrower or any of
its Subsidiaries, or transport or permit the transportation of Hazardous
Materials to or from any such Real Property, except for Hazardous Materials
generated, used, treated, stored, Released or


 


83

















 


disposed of at any such Real Properties in
compliance in all material respects with all applicable Environmental Laws and
as required in connection with the normal operation, use and maintenance of the
business or operations of the Borrower or any of its Subsidiaries and which
could not, either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.


 


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


 


SECTION 5.10.      Further Assurances; etc. (a)(i)The Borrower will, and
will cause each of its
Subsidiaries to, at the expense of the Borrower, make, execute, endorse,
acknowledge, file and/or use commercially reasonable efforts to deliver to the
Collateral Agent from time to time such schedules, confirmatory assignments,
financing statements, transfer endorsements, certificates, reports, landlord
waivers and other assurances or instruments and take such further steps
relating to the Collateral covered by any of the Security Documents as the
Collateral Agent may reasonably require and as are generally consistent with
the terms of this Agreement and the Security Documents and are necessary to
effectuate the intent of said agreements.


 


(ii)           Without
limiting the foregoing, on or prior to the Initial Borrowing Date, the Borrower will, and will cause each of its
Subsidiaries to use commercially reasonable efforts to (A) deliver to the
Administrative Agent a landlord waiver with respect to each parcel of Real
Property leased by the Borrower or any of the Subsidiary Guarantors, identified
on Schedule 3.05 hereto and requested by the Administrative Agent, each in form
and substance reasonably  acceptable to the Administrative Agent and
(B) deliver to the Administrative Agent such bailee letters with respect
to Collateral held by third parties identified on Schedule 3.05 hereto and
requested by the Administrative Agent, in form and substance reasonably
acceptable to the Administrative Agent or, in the case of either (A) or
(B) make arrangements reasonably  satisfactory to the Administrative Agent for the
delivery of such waivers or letters.


 


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(iii)         Without
limiting the foregoing, on or prior to the Initial Borrowing Date, the Borrower
will cause to be delivered to the Administrative Agent the following with
respect to each parcel of Real Property which is subject to a Lien pursuant to
a Mortgage, each in form and substance reasonably satisfactory to the
Administrative Agent: (A) an ALTA mortgagee title insurance policy (or a
commitment to issue such a policy, which policy would be issued at the
Borrower’s expense within a reasonable time period acceptable to the
Administrative Agent) in an amount equal to at least 100% (or solely with
respect to the Real Property located at 1565 Buchanan Trail East, Shady Grove,
PA 17256, 110%) of the value of the subject Real Property as reasonably
determined by the Administrative Agent and including such affirmative coverage
endorsements as reasonably required by Administrative Agent; (B) an ALTA
survey prepared and certified to the Administrative Agent by a surveyor
acceptable to the Administrative Agent dated within ten (10) days of the date
of the recording of the Mortgage and including such Table A items as reasonably
requested by the Administrative Agent, but only if the title company will not
provide survey coverage without such survey; (C) an opinion of counsel
from the state in which such Real Property is located in substantially the form
attached hereto as Exhibit G, or such other form as is reasonably
acceptable to Administrative Agent and (D) such other information,
documentation, consents and certifications with respect to such Real Property as
the Administrative Agent may reasonably require.


 


(iv)        Without
limiting the foregoing, on or prior to the Initial Borrowing Date, the Borrower
will cause to be delivered to the Administrative Agent insurance certificates
or binders naming the Collateral Agent, on behalf of the Secured Creditors, as
loss payee for any property insurance policies and additional insured for any
general, excess or umbrella, automobile, marine or other similar liability
policies, in form and substance acceptable to the Administrative Agent (other
than in respect of the Target and its Subsidiaries).


 


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


 


(c)          If,
following a change in the relevant sections of the Code or the regulations,
rules, rulings, notices or other official pronouncements issued or promulgated
thereunder, the Borrower does not within 30 days after a request from the
Administrative Agent or the Required Lenders deliver evidence, in form and
substance reasonably satisfactory to the Administrative Agent (which evidence
may be in the form of an opinion of counsel), with respect to any Foreign
Subsidiary of the Borrower which has not already had all of its stock pledged
pursuant to the US Pledge Agreement that (i) a pledge of 65% or more of
the total combined voting power of all classes of capital stock of such Foreign
Subsidiary entitled to vote and (ii) the entering into by such Foreign
Subsidiary of a guarantee in substantially the form of the Subsidiary Guaranty,
in any such case could reasonably be expected to cause (I) any
undistributed earnings of such Foreign Subsidiary as determined for Federal
income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s
United States parent for Federal income tax purposes or (II) other Federal
income tax consequences to the Credit Parties having


 


85

















 


an adverse financial consequence to any
Credit Party in any material respect, then in the case of a failure to deliver
the evidence described in clause (i) above, that portion of such Foreign
Subsidiary’s outstanding capital stock not theretofore pledged pursuant to the
US Pledge Agreement shall be promptly pledged to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the US Pledge Agreement (or
another pledge agreement in substantially similar form, if needed), and in the
case of a failure to deliver the evidence described in clause (ii) above
such Foreign Subsidiary shall promptly execute and deliver the Subsidiary
Guaranty (or another guarantee in substantially similar form, if needed),
guaranteeing the obligations of the Borrower under the Credit Documents and
under any Swap Agreement entered into with a Secured Creditor, in each case to
the extent that the entering into of the US Pledge Agreement or Subsidiary
Guaranty is permitted by the laws of the respective foreign jurisdiction and
with all documents delivered pursuant to this Section 5.10(c) to be
in form and substance reasonably satisfactory to the Administrative Agent.
Notwithstanding the foregoing, (i) the Administrative Agent shall not take
a security interest in those assets as to which the Administrative Agent shall
determine, in its reasonable discretion, that the cost of obtaining such Lien
(including any mortgage, stamp, intangibles or other tax, title insurance or
similar items) is excessive in relation to the benefit to the Lenders of the
security afforded thereby and (ii) no Foreign Subsidiary shall be required
to guarantee the Obligations or provide collateral therefor to the extent such
guarantee or collateral could reasonably be expected to result in personal
liability to its directors or is otherwise prohibited by applicable law.


 


(d)          As
soon as reasonably practicable on or after the Unconditional Date and in any
event no later than ten Business Days after the Unconditional Date, the
Borrower shall deliver to the Administrative Agent a true and correct schedule
of each subsidiary of Target, including as of the Unconditional Date,
(i) the percentage ownership (direct or indirect) of the Target, as
applicable, in each class of capital stock or other equity of its subsidiaries
and the identity of the direct owner thereof, and (ii) the jurisdiction of
organization of each such subsidiary.


 


(e)           The
parties acknowledge that the Borrower has requested, and the Lenders have
agreed, that the consummation of the Marine Mortgages shall be deferred and/or
waived entirely on the terms set forth in this Section. If the Sale Transaction
is consummated prior to the date (the “Trigger Date”) which is the earlier of
(i) March 31, 2009 (or such later date to which the Administrative
Agent may agree) and (ii) the date ten (10) Business Days after the
date upon which the Purchase Agreement dated as of August 1, 2008 entered
into by the Borrower with respect to the Sale Transaction shall have been
terminated, then the Borrower shall not be required to execute or cause the
execution of the Marine Mortgages or to take the other actions set forth in
Section 5.10(a)(iii) with respect to the Marine Mortgages and the
collateral subject thereto. If the Sale Transaction has not been consummated
prior to the Trigger Date, then (A) on or prior to the Trigger Date the
Borrower shall execute or cause to be executed the Marine Mortgages and
(B) not later than thirty days (or such longer period to which the
Administrative Agent may agree) after the Trigger Date, the Borrower shall take
or cause to be taken the other actions set forth in such Section with
respect to the Marine Mortgages and the collateral subject thereto.


 


SECTION 5.11.      Ownership of Subsidiaries; etc. Except as otherwise permitted by Section 6.05(c) or
(m) or pursuant to a Permitted Acquisition consummated in


 


86

















 


accordance with the terms of this Agreement,
the Borrower will directly or indirectly own 100% of the capital stock or other
equity interests of each of its Subsidiaries (other than, in the case of
Foreign Subsidiaries, director’s qualifying shares and/or other nominal amounts
of shares required to be held by Persons other than the Borrower and its
Subsidiaries under applicable law).


 


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


 


SECTION 5.13.      Additional Guarantors and Collateral. (a) Effective
upon any Domestic Subsidiary
(other than an SPC) which was not a Material Subsidiary on the Effective Date
(either because it was not a Subsidiary on the Effective Date or because it did
not on the Effective Date meet the other criteria of a Material Subsidiary)
becoming a Material Subsidiary, the Borrower shall cause such Domestic
Subsidiary within ten Business Days (or, solely with respect to any subsidiary
of the Target which, giving effect to the Acquisition, is a Domestic Subsidiary
which is a Material Subsidiary, within 45 days after the Initial Borrowing
Date) to (i) execute and deliver to the Administrative Agent for the
benefit of the Secured Creditors a joinder to the Subsidiary Guaranty and
(ii) pledge to the Administrative Agent for the benefit of the Secured
Creditors a first priority security interest in (A) all personal property
owned by such Person pursuant to a security or pledge agreement substantially
similar to the US Security Agreement or, as applicable US Pledge Agreement (or pursuant
to a joinder agreement to the US Security Agreement or US Pledge Agreement in
form satisfactory to the Administrative Agent) and (B) all real property
(including leasehold interests) having a fair market value in excess of
$5,000,000 owned by such Person pursuant to a Mortgage in form satisfactory to
the Administrative Agent. The Borrower shall promptly notify the Administrative
Agent at any time at which any Domestic Subsidiary becomes a Material
Subsidiary.


 


(b)           If
at any time, more than 45 days after the Initial Borrowing Date, the aggregate assets of all Domestic Subsidiaries
of the Borrower that are not Subsidiary Guarantors which have pledged their
assets to secure the Obligations (any such Subsidiary, a “Non-Subject
Subsidiary”) exceed ten percent (10%) of the consolidated total assets of
the Borrower and its Subsidiaries, then the Borrower shall cause one or more of
such Non-Subject Subsidiaries (other


 


87

















 


than any SPC) to promptly (i) execute a
Subsidiary Guaranty and (ii) pledge to the Administrative Agent for the
benefit of the Secured Creditors a first priority security interest in
(A) all personal property owned by such Person pursuant to a security or
pledge agreement substantially similar to the US Security Agreement or, as
applicable, US Pledge Agreement (or pursuant to a joinder agreement to the US
Security Agreement or US Pledge Agreement in form satisfactory to the
Administrative Agent) and (B) all real property (including leaseholds) having
a fair market value in excess of $5,000,000 owned by such Person pursuant to a
Mortgage in form satisfactory to the Administrative Agent, so that the
aggregate assets of all Non-Subject Subsidiaries do not exceed ten percent
(10%) of the consolidated total assets of the Borrower and its Subsidiaries.


 


(c)          Without
limiting the provisions of Sections 5.10(c) or 5.13, the Borrower agrees
that within 60 days after the Initial Borrowing Date (and periodically
thereafter as the Administrative Agent may request) it will identify to the
Administrative Agent by written notice each Foreign Subsidiary of the Borrower
which may (i) become a guarantor of some or all of the Obligations,
(ii) have 65% or more of its Equity Interests pledged to secure some or
all of the Obligations or (iii) pledge its assets to secure some or all of
the Obligations (each of the foregoing being “Credit Support”), in each case
(A) without having an adverse tax or other financial consequence to the
Borrower or any of its Subsidiaries in any material respect, (B) solely to
the extent any of the foregoing actions could not reasonably be expected to
result in personal liability to the directors of such Foreign Subsidiary and
(C) solely to the extent any of the foregoing actions are not otherwise
prohibited by applicable law (any of the actions described in (i) –
(iii) above which do not have any of the consequences described in
(A) – (C) above being “Permitted Credit Support”). Such notice shall
not be required to identify Foreign Subsidiaries already providing Credit
Support which are not required to provide incremental Credit Support pursuant
to this section.


 


(d)         Within
30 days after the delivery of such notice pursuant to
Section 5.13(c) (or such longer period to which the Administrative Agent
may agree) the Borrower will cause the applicable Foreign Subsidiary (or the
Subsidiary which is the holder of Equity Interests therein, as applicable) to
provide the applicable Permitted Credit Support pursuant to such documentation
(including certificates and opinions of counsel) as the Administrative Agent
may reasonably request (which documentation shall provide equal and ratable
credit support for Swap Agreements and Banking Product Agreements (as defined
in the US Security Agreement) to the same extent as provided in the US Security
Agreement). To the extent that provision of Credit Support by any Foreign
Subsidiary would constitute Permitted Credit Support but for the completion by
such Foreign Subsidiary or its parent entity of the Section 155 to 158 of
the Company’s Act financial assistance whitewash procedure or any similar
procedure (a “Whitewash”), then such Foreign Subsidiary shall be
included in the notice referred to above and the Borrower shall cause such
Foreign Subsidiary (or, if applicable, its parent entity) (i) to take all
commercially reasonable steps necessary to complete such Whitewash as soon as
practicable and (ii) following completion of the Whitewash, to take the
actions described in the first sentence of this Section 5.13(d) within
30 days (or such longer period to which the Administrative Agent may agree)
thereafter. Notwithstanding the foregoing, (i) no Lien shall be taken
pursuant to this Section 5.13(d) in any assets as to which the
Administrative Agent shall determine, in its reasonable discretion, that the
cost of obtaining such Lien (including any mortgage, stamp, intangibles or
other tax, title insurance or similar items or the cost of the Whitewash
procedure)


 


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is excessive in relation to the benefit to
the Lenders of the security afforded thereby or in real estate.


 


SECTION 5.14.      The Scheme. In the event that the Acquisition Parties proceed with the Scheme in order to make the
Acquisition, the Borrower covenants and agrees with the Lenders as follows:


 


(a)           General.
The Borrower shall (and shall cause Newco to):


 


(i)           comply in all material respects with
the Takeover Code (subject to any applicable waivers granted by the Panel on
Takeovers and Mergers), the Financial Services and Markets Act 2000, the
Companies Act, the 2006 Companies Act and all other applicable laws and
regulations relevant in the context of the Scheme and all court orders relating
to the Scheme;


 


(ii)          subject to any relevant requirement of
the Takeover Code, provide the Administrative Agent with (i) copies of the
Acquisition Documents, together with evidence that the office copy of the
appropriate court order approving the Scheme has been delivered to the
registrar of companies for registration, and all other material documents,
certificates, notices or announcements received or issued by it (or on its
behalf) in relation to the Scheme; and (ii) such information regarding the
progress of the Scheme as it may reasonably request and in any event regarding
all material matters likely to affect the interests of the Lenders in respect
of the Scheme and upon request consult with the Administrative Agent on all
such matters;


 


(iii)         subject as required by law or any relevant
regulatory requirement (including, without, limitation, any provisions of the
Takeover Code) not issue any press release or make any statement which is
reasonably likely to enter the public domain during the course of the Scheme
which contains any information not already in the public domain concerning
(i) the Credit Documents or (ii) the Administrative Agent or any
Lender, without first obtaining the prior approval of the information or
statement from the Administrative Agent;


 


(iv)         ensure that to the extent possible the
Scheme Document is consistent in all material respects with the Press Release
and, in particular, that the conditions and terms of the Scheme are as set out
in the Press Release (except as required by the Panel on Takeovers and Mergers
or the court (provided that the Borrower and its Subsidiaries shall not,
nor shall they request the Target to, request the Panel on Takeovers and
Mergers or petition the court to so require));


 


(v)          (i) issue the Original Press Release
or ensure that the Original Press Release is issued within five days of the
Effective Date, (ii) issue the Supplemental Press Release or ensure that
the Supplemental Press Release is issued within five days of the date of
Amendment No. 1 to this Agreement and (iii) issue the Second
Supplemental Press Release or ensure that the Second Supplemental Press Release
is issued within five days of the date of Amendment No. 2 to this
Agreement if the Borrower’s offer is


 


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recommended by the Target after completion of
the auction relating to the Target Shares scheduled for June 30, 2008.


 


(vi)         promptly give notice to the
Administrative Agent of any circumstance or event which, if not waived, would
entitle any Acquisition Party (with the consent of the Panel on Takeovers and
Mergers, if needed) to lapse or withdraw the Scheme; and


 


(vii)        promptly give notice to the
Administrative Agent of the date of the lapse or withdrawal of the Scheme or
the rejection of it or of the reduction of capital by the court.


 


(b)          Conduct
of the Scheme. The Borrower shall (and shall cause Newco to) ensure that the Scheme Document is posted within 28
days of the Announcement Date (or such longer period as is allowed by the Panel
on Takeovers and Mergers), and the Borrower shall not (and shall not permit Newco
to) without the prior the written consent of the Administrative Agent:


 


(i)           except as required by the Panel on
Takeovers and Mergers or the presiding court (provided that the Borrower
and its Subsidiaries shall not, nor shall they request the Target to, request
the Panel on Takeovers and Mergers or petition the court to so require), amend,
vary, supplement or otherwise modify (in each case, in any way deemed material
by the Administrative Agent or the Required Lenders in their sole discretion)
any of the conditions or terms of the Scheme or the Implementation Agreement
following posting of the Scheme Document;


 


(ii)          except as required by the Panel on
Takeovers and Mergers or the presiding court (provided that the Borrower
and its Subsidiaries shall not, nor shall they request the Target to, request
the Panel on Takeovers and Mergers or petition the court to so require)
(A) waive, withdraw or fail to invoke (in whole or in part) any condition
to the Scheme or (B) determine or declare or accept that any such
condition is satisfied where it is not actually satisfied or (C) permit
the Scheme to become effective if any condition thereof is not fulfilled;


 


(iii)         permit any circumstances to arise
whereby a mandatory offer is required to be made by an Acquisition Party by the
terms of Rule 9 of the Code in respect of the Target Shares; or


 


(iv)         acquire any Target Shares at a price
above the Scheme price or do anything which might result in an increase of the
Scheme price for the Target Shares to which the Scheme relates, as specified in
the Press Release.


 


SECTION 5.15.      The Offer. Notwithstanding any other provision of this Agreement or any other Credit Document to the
contrary, the Borrower will not (and will ensure that its Subsidiaries will
not) proceed with a bid for the Target by way of the Offer without the prior
written consent of all of the Lenders. In the event that the Borrower has
received such prior written consent and the Acquisition Parties proceed with
the Offer in order to make the


 


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Acquisition (which has been consented to in
writing by all of the Lenders), they covenant and agree with the Lenders as
follows:


 


(a)           General.
The Borrower shall (and shall cause Newco to):


 


(i)           comply in all material respects with
the Takeover Code (subject to any applicable waivers granted by the Panel on
Takeovers and Mergers), the Financial Services and Markets Act 2000, the
Companies Act, the 2006 Companies Act and all other applicable laws and
regulations relevant in the context of the Offer;


 


(ii)          enter into a Receiving Agent Agreement
in form acceptable to the Administrative Agent and, subject to any relevant
requirement of the Takeover Code, provide the Administrative Agent with
(A) copies of the Acquisition Documents and all other material documents,
certificates, notices or announcements received or issued by it (or on its
behalf) in relation to the Offer; (B) at the time of giving any Borrowing
Request for a Term Loan to be used to acquire any Target Shares a copy of a
certificate from the Receiving Agent as to the levels of acceptances of the
Offer for cash consideration and as to the amounts actually paid or due to be
paid to shareholders who have accepted the Offer; and (C) such information
regarding the progress of the Offer as it may reasonably request and in any
event regarding all material matters likely to affect the interests of the
Lenders in respect of the Offer (which shall include, without limitation, any
market purchases of Target Shares made or agreed by or on behalf of the
Acquisition Parties or persons acting in concert with them);


 


(iii)         subject as required by law or by any
relevant regulatory requirement (including, without limitation, any provision
of the Takeover Code) not issue any press release or make any statement which
is reasonably likely to enter the public domain during the course of the Offer
which contains any information not already in the public domain concerning
(i) the Credit Documents or (ii) the Administrative Agent or any
Lender (and in either case which is detrimental to the Administrative Agent or
any Lender), without first obtaining the prior approval of the information or
statement from the Administrative Agent;


 


(iv)         ensure that to the extent possible the
Offer Document (A) is consistent in all material respects with the Press
Release and, in particular, that the terms and conditions of the Offer are as
set out in the Press Release (except as required by the Panel on Takeovers and
Mergers (provided that the Borrower and its Subsidiaries shall not, nor
shall they request the Target to, request the Panel on Takeovers and Mergers or
petition the court to so require)), and (B) is consistent with the
provisions of Section 5.15 (b) (iii) below;


 


(v)          issue the Press Release or ensure that
the Press Release is issued within five days of the date of this Agreement;


 


(vi)         promptly notify the Administrative
Agent of any circumstance or event which if not waived would entitle any
Acquisition Party (with the consent of the Panel on Takeovers and Mergers, if
needed) to lapse or withdraw the Offer; and


 


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(vii)         promptly give notice to the Administrative Agent of
the date of the lapse or withdrawal of the Offer.


 


(b)                                 Conduct of the Offer. The Borrower shall (and shall cause Newco to)
post the Offer Document within 28 days of the Announcement Date (or such longer
period as is allowed by the Panel on Takeovers and Mergers), and the Borrower
shall not (and shall not permit Newco to) without prior written consent of the
Administrative Agent:


 


(i)                                     except as required by the Panel on Takeovers and
Mergers,(provided that the Borrower and its Subsidiaries shall not, nor
shall they request the Target to, request the Panel on Takeovers and Mergers or
petition the court to so require) amend, vary, supplement or otherwise modify
(in each case, in any way deemed material by the Administrative Agent or the
Required Lenders in their sole discretion) any of the conditions or terms of
the Offer following posting of the Offer Document or agree to an extension or
increase in the Offer;


 


(ii)                                  except as required by the Panel on Takeovers and
Mergers (provided that the Borrower and its Subsidiaries shall not, nor
shall they request the Target to, request the Panel on Takeovers and Mergers or
petition the court to so require) (A) waive, withdraw, or fail to invoke
(in whole or in part) any condition of the Offer or (B) determine or
declare or accept that any such condition is satisfied where it is not actually
satisfied or (C) declare the Offer unconditional if any condition therein
is not fulfilled;


 


(iii)                               (without prejudice to clause (b)(ii)) declare the
Offer unconditional as to acceptances unless Newco has received acceptances
from the holders of Offer Shares which, when aggregated with any Offer Shares
purchased by or on behalf of the Acquisition Parties in the market after the
Posting Date, equal or exceed 90 percent (or such lesser percentage as the
Lenders may agree) of the Offer Shares and, if the Administrative Agent and
Lenders have not agreed to a lower percentage than 90 percent, is entitled to
invoke the compulsory purchase provisions in Section 979 of the 2006
Companies Act in respect of the remaining Offer Shares;


 


(iv)                              permit any circumstances to arise whereby a
mandatory offer is required to be made by an Acquisition Party by the terms of Rule 9
of the Takeover Code in respect of the Target Shares; or


 


(v)                                 acquire any Offer Shares at a price above the Offer
price or do anything which might result in an increase of, the Offer price for
the Target Shares to which the Offer relates, as specified in the Press
Release.


 


(c)                                  Action after the Unconditional Date. The Borrower shall (and shall cause Newco to)
after the Unconditional Date:


 


(i)                                     use all reasonable endeavors (which shall not
include making any purchases in the market at above the Offer price) to acquire
all of the Target Shares in issue from time to time as soon as practicable
either pursuant to or otherwise on the same terms as the Offer;


 


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(ii)                             as soon as practicable and in any event within 10
Business Days of becoming entitled so to do, deliver or procure that the
Receiving Agent delivers the appropriate notices under Section 979 of the
2006 Companies Act to shareholders in the Target who have not accepted the
Offer and diligently pursue its rights to ensure that all of the Target Shares
are acquired by it; and


 


(iii)                          as soon as practicable and in any event within 14
days after the Unconditional Date, procure that the articles of association of
the Target are amended to provide that any further Target Shares issued will
automatically convert into a cash amount equal to the number of shares
multiplied by the price payable in respect of the Target Shares under the
Acquisition Documents.


 


SECTION 5.16.                 Rate Hedging Obligations.  Within
ninety (90) days after the Initial Borrowing Date, the Borrower will enter into
Swap Agreements with one or more financial institutions acceptable to the
Administrative Agent in its reasonable discretion, providing for a fixed rate
of interest on a notional amount equal to at least the Dollar Equivalent of an
amount equal to 50% of the aggregate Indebtedness for money borrowed of the
Borrower and its Subsidiaries (excluding the Term X Loans, Indebtedness of the
Target set forth on Schedule 6.01 and any Indebtedness otherwise accruing interest
at a fixed rate) and having an average weighted maturity of at least three (3) years.


 


SECTION 5.17.                 Rated Credit Facilities.  The
Borrower will use commercially reasonable efforts to cause the credit
facilities made available under the Agreement to be continuously rated by
S&P and Moody’s.


 


SECTION 5.18.                 Pensions.  The Borrower shall immediately
notify the Administrative Agent (a) upon having knowledge thereof of any
investigation or proposed investigation by the Pensions Regulator which may
lead to the issue of a Financial Support Direction or a Contribution Notice to
any member of the Target Group and (b) if it receives a Financial Support
Direction or a Contribution Notice from the Pensions Regulator.


 


ARTICLE VI


 


Negative Covenants


 


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


 


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


 


(a)                                  Indebtedness created under the Credit Documents
and, only until such time as the initial extension of credit is made under this
Agreement, Indebtedness created under the “Credit Documents” (as defined in the
Existing Credit Agreement);


 


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


 


(c)                             intercompany Indebtedness among the Borrower and
its Subsidiaries to the extent permitted by Sections 6.05(i) and (j) and
Indebtedness of Foreign Credit Parties in respect of intercompany notes payable
described in subsection (y) of Section 6.04;


 


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


 


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


 


(f)                               Indebtedness of a Subsidiary of the Borrower
acquired pursuant to a Permitted Acquisition (or Indebtedness assumed at the
time of a Permitted Acquisition of an asset securing such Indebtedness), provided
that (i) such Indebtedness was not incurred in connection with, or in
anticipation or contemplation of, such Permitted Acquisition, (ii) such
Indebtedness does not constitute debt for borrowed money, it being understood
and agreed that Capital Lease Obligations and purchase money Indebtedness shall
not constitute debt for borrowed money for purposes of this clause (ii) and
(iii) the aggregate principal amount of all Indebtedness permitted by this
clause (f) to be outstanding at any time shall not exceed $50,000,000
minus the aggregate principal amount of Indebtedness outstanding under Section 6.01(s);


 


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


 


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


 


(i)                                Indebtedness of Foreign Subsidiaries of the
Borrower under lines of credit to any such Foreign Subsidiary from Persons
other than the Borrower or any of its Subsidiaries, the proceeds of which
Indebtedness are used for such Foreign Subsidiary’s working capital and other
general corporate purposes; provided that the aggregate principal amount
of all such Indebtedness outstanding at any time for all such Foreign
Subsidiaries (excluding Indebtedness set forth on Schedule 6.01 and
refinancings thereof by the applicable Subsidiary or another Subsidiary in the
same country so long as such refinancings do not increase the amount of the
applicable Indebtedness nor provide security not applicable to such scheduled
Indebtedness) shall not exceed $50,000,000;


 


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(j)                                Receivables Indebtedness; provided that the
Borrower shall at no time permit the aggregate outstanding amount of
Receivables Indebtedness to exceed
$200,000,000;


 


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


 


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


 


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


 


(n)                            Indebtedness consisting of guarantees (w) by
the Domestic Credit Parties of each other’s Indebtedness and lease and other
contractual obligations permitted under this Agreement, (x) by the Foreign
Credit Parties of each other’s and each Domestic Credit Party’s Indebtedness
and lease and other contractual obligations permitted under this Agreement, (y) by
External Subsidiaries of each other’s and each Credit Party’s Indebtedness and
lease and other contractual obligations permitted under this Agreement or (z) by
any Credit Party of any Indebtedness and lease and other contractual
obligations permitted under this Agreement of any External Subsidiary (or by
any Domestic Credit Party of any Indebtedness and lease and other contractual
obligations permitted under this Agreement of any Foreign Credit Party) so long
as the amount of such Guarantee under this clause (z), when aggregated with (1) the
aggregate outstanding principal amount of Intercompany Loans which are
restricted in amount by the proviso to Section 6.05(i) and (2) the
aggregate amount of contributions, capitalizations and debt forgiveness which
are restricted in amount by the proviso to Section 6.05(j) and which
have theretofore been made and not repaid do not at any time exceed the Dollar
Equivalent of $80,000,000;


 


(o)                            Indebtedness of a Chinese finance Subsidiary, provided
that the aggregate principal amount of such Indebtedness outstanding at any
time does not exceed the Dollar Equivalent of $35,000,000;


 


(p)                            additional unsecured Indebtedness incurred by the
Borrower and the Subsidiary Guarantors (other than Indebtedness of the type
described in Section 6.01(n)(z)); provided that (i) no Default
exists at the time of its incurrence or would result therefrom, (ii) both
before and after giving effect to the incurrence of such Indebtedness the
Consolidated Senior Leverage Ratio is less than 3.50 to 1.00 and (iii) such
Indebtedness shall have a Weighted Average Life to Maturity which is at least
six months after the latest scheduled Loan maturity date under this Agreement
and shall be on terms no less favorable to the Lenders than the terms of the
Senior Note Documents; provided, however, that Indebtedness may
be incurred pursuant to this clause (p) only if at the time of its
incurrence the Term X Loan has been paid in full;


 


95

















 


(q)                            so long as no Default then exists or would result
therefrom, additional unsecured Indebtedness incurred by the Borrower for the
purpose of (i) refinancing any portion of the Obligations or (ii) refinancing
other senior Indebtedness provided, however, that such
refinancing Indebtedness pursuant to this clause (ii) has a Weighted
Average Life to Maturity at the time such refinancing Indebtedness is incurred
which is not less than the remaining Weighted Average Life to Maturity of the
Indebtedness being refinanced, is in a principal amount not in excess of the
principal amount of Indebtedness being refinanced and is on terms not
materially more onerous to the Borrower than the terms of the Indebtedness
being refinanced; provided, however, that Indebtedness may be
incurred pursuant to this clause (s)(ii) only if at the time of its
incurrence the Term X Loan has been paid in full;


 


(r)                               Indebtedness incurred in consummating the Funding
Transactions; and


 


(s)                             Indebtedness of the Target or its Subsidiaries
incurred prior to the Initial Borrowing Date (excluding Target Debt) in an
aggregate principal amount which, when aggregated with the aggregate principal
amount of Indebtedness incurred pursuant to Section 6.01(f), does not
exceed $50,000,000.


 


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


 


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


 


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


 


(c)                             Liens (other than Liens imposed under ERISA) (i) incurred
in the ordinary course of business in connection with workers compensation
claims, unemployment insurance


 


96

















 


and social security benefits and (ii) Liens
securing the performance of bids, tenders, leases and contracts in the ordinary
course of business and statutory obligations, surety bonds, performance bonds
and other obligations of a like nature (other than appeal bonds) incurred in
the ordinary course of business;


 


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


 


(e)                             Liens arising out of the existence of judgments or
awards in respect of which the Borrower or any of its Subsidiaries shall in
good faith be prosecuting an appeal or proceedings for review and in respect of
which there shall have been secured a subsisting stay of execution pending such
appeal or proceedings; provided that the aggregate amount of all cash
(including, for this purpose, the amount of all letters of credit) and the fair
market value of all other property pledged or deposited to obtain a subsisting
stay of execution pending such appeal does not exceed $10,000,000 at any time
outstanding;


 


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


 


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


 


(g)                            Liens created pursuant to the Security Documents
and, only until the Initial Borrowing Date, Liens securing the “Security
Documents” (as defined in the Existing Credit Agreement);


 


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


 


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


 


(j)                                Liens on fixed or capital assets acquired after the
Effective Date and used in the ordinary course of business of the Borrower or
any of its Subsidiaries and created at the time of the acquisition thereof by
the Borrower or such Subsidiary or within 90 days thereafter to secure
Indebtedness incurred to pay all or a portion of the purchase price thereof or
extensions, renewals or replacements of any of the foregoing for the same or a
lesser amount; provided that (i) the Indebtedness secured by such
Liens is permitted by Section 6.01(e) and (ii) in all events,


 


97

















 


any Lien encumbering the equipment or
machinery so acquired does not encumber any other asset of the Borrower or such
Subsidiary (other than proceeds of such equipment or machinery);


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(u)                            Liens created by the transfer of title to work in
progress to customers in return for progress payments;


 


(v)                            Liens arising out of the escrowing of (or making
similar arrangements with respect to) Loan proceeds to be used for the sole
purpose of making payments pursuant to


 


98

















 


the Scheme or of assuring repayment of
Indebtedness arising under the Note Purchase and Guaranty Agreement dated as of
September 6, 2007 referred to on Schedule 6.01, in any case on terms
reasonably satisfactory to the Administrative Agent; and


 


(w)                          other Liens incidental to the conduct of the
business of the Borrower or any of its Subsidiaries that do not encumber any
Collateral (other than on a junior and subordinated basis) and do not secure
outstanding obligations in the aggregate in excess of $25,000,000 at any time
outstanding for all such Liens.


 


SECTION 6.03.                 Merger, Purchase or Sale of Assets, Change in
Business.  (a) The Borrower will not, and will not
permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs
or enter into any transaction of merger or consolidation, or convey, sell,
lease or otherwise dispose of all or any part of its property or assets
(whether now owned or hereafter acquired), or enter into any sale-leaseback
transactions, or purchase or otherwise acquire (in one or a series of related
transactions) any part of the property or assets (other than purchases or other
acquisitions of inventory, materials and equipment in the ordinary course of
business) of any Person (or agree to do any of the foregoing at any future
time), except that:


 


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


 


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


 


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


 


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


 


(v)                            the Borrower and its Subsidiaries may sell assets
(other than the capital stock or other equity interests of any Wholly-Owned
Subsidiary unless all of the capital stock or other equity interests are sold
in accordance with this clause (v)) so long as (A) no Default or Event of
Default then exists or would result therefrom, (B) each such sale is in an
arm’s-length transaction and the Borrower or the respective Subsidiary receives
at least fair market value (as determined in good faith by the Borrower or such
Subsidiary, as the case may be), (C) the total consideration received by
the Borrower or such Subsidiary is at least 80% cash and is paid at the time of
the closing of such sale and (D) the aggregate amount of the proceeds
received from all assets sold pursuant to this clause (v) shall not exceed
$150,000,000 (or such greater amount as may be required to permit the Borrower
to repay the Term X Loan) in any fiscal year of the Borrower;


 


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


 


(vii)                      each of the Borrowers and its Subsidiaries may sell
or discount accounts receivable arising in the ordinary course of business in
Specified Transactions


 


99

















 


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


 


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


 


(ix)                           the Borrower may transfer assets to any
Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary
Guarantor (or which substantially contemporaneously with such transfer becomes
a Subsidiary Guarantor) and any Subsidiary of the Borrower may transfer assets
to the Borrower or to any Wholly-Owned Domestic Subsidiary of the Borrower
which is a Subsidiary Guarantor (or which substantially contemporaneously with
such transfer becomes a Subsidiary Guarantor), in each case so long as the
security interests granted to the Collateral Agent for the benefit of the
Secured Creditors pursuant to the Security Documents in the assets so
transferred shall remain in full force and effect and perfected (to at least
the same extent as in effect immediately prior to such transfer);


 


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


 


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


 


100
















 


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


 


(xiii)                               subject to Section 6.16, Subsidiaries of the
Borrower may repurchase equipment as may be required in accordance with the
terms of the Buy-Back Arrangements relating to such equipment;


 


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


 


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


 


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


 


(xvii)                           the Borrower and Newco may consummate the
Acquisition;


 


(xviii)                        subject to compliance with the conditions set forth
in Section 6.03(a)(v)((A)–(C)), the Borrower and its Subsidiaries may
consummate Divestiture Transactions;


 


(xix)                                prior to March 31, 2009, the Borrower or its
Subsidiaries may consummate the Sale Transaction; and


 


(xx)                                   prior to the Term X Maturity Date (or such later
date to which the holders of more than 50% of the Term X Loan may agree), the
Borrower or its Subsidiaries may consummate the Supplemental Sale Transaction
on terms acceptable to the Administrative Agent.


 


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


 


SECTION 6.04.                 Restricted Payments.  The
Borrower will not, and (on or after the Initial Borrowing Date) will not permit
any of its Subsidiaries to, declare or make, or agree to pay or make, directly
or indirectly, any Restricted Payment, except (a) the Borrower may declare
and pay dividends with respect to its Equity Interests payable solely in
additional shares of its common stock, (b) Subsidiaries may declare and
pay dividends ratably with respect to their Equity Interests, (c) the
Borrower may make Restricted Payments pursuant to and in accordance with stock
option plans or other benefit plans for directors, management or employees of
the Borrower and its Subsidiaries and (d) so long as no Default has occurred
and is continuing or would result therefrom, then (i) at any time when the
Consolidated Total Leverage


 


101

















 


Ratio is less than 2.00 to 1.00 (both
immediately before and immediately after the making of such Restricted Payment)
the Borrower may make Restricted Payments which, when aggregated with all other
Restricted Payments made pursuant to this Section 6.04(d) during the
then current calendar year do not exceed $75,000,000 and (ii) at any time
when the Consolidated Total Leverage Ratio is greater than or equal to 2.00 to
1.00 (both immediately before and immediately after the making of such
Restricted Payment) the Borrower may make Restricted Payments which, when
aggregated with all other Restricted Payments made pursuant to this Section 6.04(d) during
the then current calendar year do not exceed $35,000,000; provided that
in the case of either Section (d)(i) or (d)(ii), the Borrower shall
have delivered to the Administrative Agent and each Lender a certificate
satisfactory in form and substance to the Administrative Agent and executed by
its chief financial officer or treasurer evidencing compliance with the
requirements of such Section and in no event shall the Borrower make a
Restricted Payment in violation of the terms of any Material Indebtedness.
Notwithstanding clause (b) of this Section 6.04, a Foreign Credit
Party may not pay any dividend to an External Subsidiary unless (x) such
dividend is substantially contemporaneously therewith directly or indirectly
remitted as a dividend or distribution to a Domestic Credit Party, (y) such
dividend is in the form of an intercompany note payable of such Foreign Credit
Party which is subordinated on terms satisfactory to the Administrative Agent
to the obligations of such Foreign Credit Party under the Credit Documents (a “Dividend
Note”) or (z) at the time such dividend is paid no Default has
occurred and is continuing and, after giving effect to such dividend, the
“Outflow Amount” (as defined below) does not exceed €30,000,000. For purposes
hereof, “Outflow Amount” means an amount equal to (1) the aggregate
amount of (A) all dividends paid by Foreign Credit Parties to External
Subsidiaries after May 1, 2007 other than as permitted by subsection (x) or
(y) of the preceding sentence plus (B) all amounts (including
principal, interest and other amounts) paid by Foreign Credit Parties to
non-Credit Parties after May 1, 2007 in respect of Dividend Notes (other
than such amounts substantially contemporaneously therewith directly or
indirectly remitted as a dividend or distribution to a Domestic Credit Party)
minus (2) the amount of all cash capital contributions received by such
paying Foreign Credit Parties from External Subsidiaries after May 1,
2007. Payments (including principal, interest and other amounts) on account of
Dividend Notes shall only be made if a dividend in the amount of such payment
could then be made pursuant to subsection (z) of the second sentence of
this Section 6.04; provided  that the foregoing restriction shall not apply
to such payments to the extent they are either made to a Credit Party or are
substantially contemporaneously therewith directly or indirectly remitted as a
dividend or a distribution to a Domestic Credit Party.


 


SECTION 6.05.                 Advances, Investments and Loans.  The
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, purchase or acquire (including pursuant to any merger with any
Person not a Wholly-Owned Subsidiary prior to such merger) any stock,
obligations or securities (including any option, warrant or other right to
acquire any of the foregoing) of, or any other interest in, or make any capital
contribution to, any Person, or lend money or make advances to any Person, or
purchase or own a futures contract or otherwise become liable for the purchase
or sale of currency or other commodities at a future date in the nature of a
futures contract, or hold any cash or Cash Equivalents (each of the foregoing
an “Investment” and, collectively, “Investments”), except that
the following shall be permitted:


 


102

















 


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


 


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


 


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


 


(d)                                      the Borrower and its Subsidiaries may make loans
and advances to their officers and employees for moving, relocation and travel
expenses and other similar expenditures, in each case in the ordinary course of
business in an aggregate amount not to exceed $5,000,000 at any time
outstanding (determined without regard to any write-downs or write-offs of such
loans and advances);


 


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


 


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


 


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


 


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


 


(i)                                          the Borrower and its Wholly-Owned Subsidiaries may
make intercompany loans and advances between and among one another
(collectively, “Intercompany Loans”); provided that (I) at
no time shall the sum of (A) the aggregate outstanding principal amount of
all Intercompany Loans (excluding Intercompany Loans outstanding on the
Effective Date and set forth on Schedule 1.02) made pursuant to this clause (i) by
Credit Parties to External Subsidiaries or by Domestic Credit Parties to
Foreign Credit Parties, plus (B) the aggregate amount of contributions,
capitalizations and forgiveness theretofore made by Credit Parties to (or in
respect of) External Subsidiaries and by Domestic Credit Parties to (or in
respect of) Foreign Credit Parties, in each case pursuant to Section 6.05(j) (net
of cash equity returns), plus (C) the outstanding amount of Guarantees
issued pursuant to Section 6.01(n)(z) exceed the Dollar Equivalent of
$80,000,000 (determined without regard to any write-downs or write-offs of such


 


103

















 


Intercompany Loans), (II) no
Intercompany Loans may be made by a Credit Party to an External Subsidiary or
by a Domestic Credit Party to a Foreign Credit Party at a time that an Event of
Default exists and is continuing, (III) any such Intercompany Loan made by
a Credit Party shall be evidenced by an Intercompany Note which shall be
pledged to the Collateral Agent to the extent required pursuant to the US
Pledge Agreement, and (IV) each Intercompany Loan made to any Credit Party
by an External Subsidiary shall include (or, if not evidenced by an
Intercompany Note, the books and records of the respective parties shall note
that such Intercompany Loan shall be subject to) the subordination provisions
attached as Annex A to the form of Intercompany Note;


 


(j)                                          the Borrower and its Wholly-Owned Subsidiaries may
make cash capital contributions to their respective Wholly-Owned Subsidiaries,
and may capitalize or forgive any Indebtedness owed to them by a Wholly-Owned
Foreign Subsidiary and outstanding under clause (i) of this Section 6.05;
provided that at no time shall (I) the sum of (A) the
aggregate amount of such contributions, capitalizations and forgiveness made by
Credit Parties to External Subsidiaries or by Domestic Credit Parties to
Foreign Credit Parties (net of cash equity returns), plus (B) the
aggregate outstanding principal amount of Intercompany Loans (excluding
Intercompany Loans outstanding on the Effective Date and set forth on Schedule
1.02) made by Credit Parties to External Subsidiaries and by Domestic Credit
Parties to Foreign Credit Parties, in each case pursuant to Section 6.05(i) (determined
without regard to any write-downs or write- offs thereof), plus (C) the
outstanding amount of Guarantees issued pursuant to Section 6.01(n)(z),
exceed the Dollar Equivalent of $80,000,000, (II) Credit Parties may only
make capital contributions to, and capitalize or forgive any Indebtedness owed
to them by, a Wholly- Owned Foreign Subsidiary pursuant to this clause (j) to
the extent (A) required to comply with any thin capitalization rules applicable
to such Wholly-Owned Foreign Subsidiary or (B) that the making of
Intercompany Loans to such Wholly-Owned Foreign Subsidiary would have adverse
tax consequences to the Credit Party making the same, and (III) no such
contributions, capitalizations or forgivenesses may be made by a Credit Party
to a External Subsidiary or by a Domestic Credit Party to a Foreign Credit
Party at any time that an Event of Default exists and is continuing;


 


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


 


(l)                                          so long as no Default or Event of Default then
exists or would result therefrom, the Borrower and its Subsidiaries may make
Investments not otherwise permitted by clauses (a) through (k) above
or clause (m) below of this Section 6.05 in an aggregate amount not
to exceed $75,000,000 (taking the fair market value (as determined in good
faith by the Borrower) of property other than cash) at any time outstanding
(determined without regard to any write-downs or write-offs thereof);


 


(m)                                    subject to the provisions of this Section 6.05(m) and
the requirements contained in the definition of Permitted Acquisition, the
Borrower and its Wholly-Owned Subsidiaries may from time to time effect
Permitted Acquisitions, so long as: (i) no Default or Event of Default
shall have occurred and be continuing at the time of the consummation of the
proposed Permitted Acquisition or immediately after giving effect thereto; (ii) if
the proposed Permitted Acquisition is for aggregate consideration of
$75,000,000 or more, the Borrower shall


 


104

















 


have given to the Administrative Agent at
least 10 Business Days’ prior written notice of such proposed Permitted
Acquisition (or such shorter period of time as may be reasonably acceptable to
the Administrative Agent), which notice shall be executed by its chief
financial officer or treasurer and shall describe in reasonable detail the
principal terms and conditions of such Permitted Acquisition; (iii) both
before and after giving effect to the Permitted Acquisition, the Borrower is in
compliance with Section 6.01(p); (iv) at the time of any such
Permitted Acquisition involving the creation or acquisition of a Subsidiary, or
the acquisition of capital stock or other equity interest of any Person, the capital
stock or other equity interests thereof created or acquired in connection with
such Permitted Acquisition shall have been pledged for the benefit of the
Secured Creditors pursuant to (and to the extent required by) the US Pledge
Agreement and such Person, if a Domestic Subsidiary which is a Material
Subsidiary, shall have executed and delivered to the Administrative Agent a
joinder to the Subsidiary Guaranty; and (v) giving effect to such
Permitted Acquisition, the Borrower is in compliance with Section 6.07 and
6.08 on a Pro Forma Basis;


 


(n)                                      the Borrower and Newco may consummate the
Acquisition; and


 


(o)                                      the Borrower and its Subsidiaries may consummate
the Funding Transactions.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


105

















 


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


 


	
  Fiscal Quarter Ending

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  June 30, 2008

  	
   

  	
  2.50:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September 30, 2008

  	
   

  	
  2.50:1.00

  	
   

  
	
  December 31, 2008

  	
   

  	
  2.50:1.00

  	
   

  
	
  March 31, 2009

  	
   

  	
  2.50:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  June 30, 2009

  	
   

  	
  2.75:1.00

  	
   

  
	
  September 30, 2009

  	
   

  	
  2.75:1.00

  	
   

  
	
  December 31, 2009

  	
   

  	
  2.75:1.00

  	
   

  
	
  March 31, 2010

  	
   

  	
  2.75:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Thereafter

  	
   

  	
  3.00:1.00

  	
   

  



 


SECTION 6.08.                 Maximum Consolidated Total Leverage Ratio.  The
Borrower will cause the Consolidated Total Leverage Ratio to be less than (a) 4.00
to 1.00 at all times during the period from the Effective Date to and including
December 30, 2009, (b) 3.75 to 1.00 at all times during the period
from December 31, 2009 to and including December 30, 2010 and (c) less
than 3.50 to 1.00 at all times thereafter.


 


SECTION 6.09.                 Limitations on Prepayments of Certain Indebtedness;
Modifications of Certain Indebtedness; Modifications of Certificate of
Incorporation, By-Laws and Certain Other Agreements, etc.  The
Borrower will not, and will not permit any of its Subsidiaries to:


 


(a)                                  make (or give any notice in respect of) any
voluntary or optional payment or prepayment on or redemption or acquisition for
value of, or any prepayment or redemption as a result of any asset sale, change
of control or similar event of (including in each case, without limitation, by
way of depositing with the trustee with respect thereto or any other Person
money or securities before due for the purpose of paying when due), (i) any
Indebtedness (other than the Obligations) unless no Default has occurred and is
continuing, (ii) any Indebtedness which is subordinated to any of the
Obligations or (iii) any Senior Notes unless the Consolidated Total
Leverage Ratio immediately prior to and after giving effect to making such
payment is less than 2.00 to 1.00;


 


(b)                                 amend or modify, or permit the amendment or
modification of, (i) any provision of any Senior Note Document, (ii) any
documents pursuant to which Indebtedness subordinated to any of the Obligations
was incurred or by which it is governed or (iii) any of the Acquisition
Documents; or


 


106

















 


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


 


SECTION 6.10.                 Restrictive Agreements.  The
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of the Borrower or any Subsidiary to create, incur or permit to exist
any Lien upon any of its property or assets, or (b) the ability of any
Subsidiary to pay dividends or other distributions with respect to any shares
of its capital stock or to make or repay loans or advances to the Borrower or
any other Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by this Agreement or the other
Credit Documents or, only until the Initial Borrowing Date, restrictions or
conditions imposed by any of the “Credit Documents” (as defined in the Existing
Credit Agreement), (ii) the foregoing shall not apply to restrictions and
conditions existing on the Effective Date identified on Schedule 6.10 (but
shall apply to any extension or renewal of, or any amendment or modification
expanding the scope of, any such restriction or condition), (iii) the
foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that is to be
sold and such sale is permitted hereunder, (iv) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness and (v) clause (a) of the foregoing shall not apply to
customary provisions in leases and other contracts restricting the assignment
thereof.


 


SECTION 6.11.                 End of Fiscal Years; Fiscal Quarters.  The
Borrower will cause (i) each of its fiscal years to end on December 31
of each year and (ii) its fiscal quarters to end on March 31, June 30,
September 30 and December 31, respectively, of each year.


 


SECTION 6.12.                 Limitation on Issuance of Capital Stock.  (a) The
Borrower will not, and will not permit any of its Subsidiaries to, issue (i) any
preferred stock or other preferred equity interests other than Qualified
Preferred Stock of the Borrower or (ii) any redeemable common stock or other
redeemable common equity interests other than common stock or other redeemable
common equity interests that is redeemable at the sole option of the Borrower
or such Subsidiary, as the case may be.


 


(b)                                 The Borrower will not permit any of its Subsidiaries
to issue any capital stock or other equity interests (including by way of sales
of treasury stock) or any options or warrants to purchase, or securities
convertible into, capital stock or other equity interests, except


 


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(i) for transfers and replacements of
then outstanding shares of capital stock or other equity interests, (ii) for
stock splits, stock dividends and issuances which do not decrease the
percentage ownership of the Borrower and its Subsidiaries in any class of the
capital stock or other equity interests of such Subsidiary, (iii) in the
case of Foreign Subsidiaries, to qualify directors to the extent required by
applicable law and for other nominal share issuances to Persons other than the
Borrower and its Subsidiaries to the extent required under applicable law or (iv) for
issuances by newly created or acquired Subsidiaries in accordance with the
terms of this Agreement.


 


SECTION 6.13.                 Limitation on Creation of Subsidiaries.  The
Borrower will not, and will not permit any of its Subsidiaries to, establish,
create or acquire after the Effective Date any Subsidiary; provided that
the Borrower and its Wholly-Owned Subsidiaries shall be permitted to (A) establish,
create and, to the extent permitted by this Agreement, acquire Wholly-Owned
Subsidiaries so long as (i) the equity interests of each such new
Wholly-Owned Subsidiary is pledged pursuant to, and to the extent required by,
the US Pledge Agreement, (ii) if required by Section 5.13, each such
new Wholly-Owned Domestic Subsidiary (and, to the extent required by Section 5.10,
each such new Wholly-Owned Foreign Subsidiary) executes a counterpart of the
Subsidiary Guaranty, the US Pledge Agreement and the US Security Agreement, and
(iii) each such new Wholly-Owned Domestic Subsidiary (and, to the extent
required by Section 5.10, each such new Wholly-Owned Foreign Subsidiary),
to the extent requested by the Administrative Agent or the Required Lenders,
takes all actions required pursuant to Section 5.10, (B) establish,
create and acquire non-Wholly-Owned Subsidiaries in each case to the extent
permitted by Section 6.05(l) and the definition of Permitted
Acquisition so long as the equity interest of each such non-Wholly-Owned
Subsidiary is pledged pursuant to, and to the extent required by, the US Pledge
Agreement and (C) consummate the Acquisition. In addition, each such new
Wholly-Owned Subsidiary which is required to become a Credit Party shall
execute and deliver, or cause to be executed and delivered, all other relevant
documentation of the type described in Article IV as such new Wholly-Owned
Subsidiary would have had to deliver if such new Wholly-Owned Subsidiary were a
Credit Party on the Effective Date.


 


SECTION 6.14.                 Rental Fleet.  The Borrower will not permit the
aggregate net book value of all crane products of the Borrower and its
Subsidiaries that are part of their Rental Fleet to exceed $100,000,000 at any
time.


 


SECTION 6.15.                 Sale-Leaseback Restriction.  The
Borrower will not permit the Sale-Leaseback Differential as of the end of any
fiscal quarter of the Borrower to exceed an amount equal to 7.5% of
Consolidated EBITDA for the four fiscal quarter period then ended.


 


SECTION 6.16.                 Buy-Back Limitation.  The
Borrower will not permit the Dollar Equivalent amount of the Buy-Back
Obligations at any time to exceed an amount equal to 12.5% of Consolidated
Tangible Net Assets, determined as of the most recent fiscal quarter end of the
Borrower.


 


SECTION 6.17.                 Swap Agreements.  The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any Swap Agreement, except (a) Swap
Agreements entered into to hedge or mitigate risks to which the Borrower or any
Subsidiary has actual exposure (other than those in respect of Equity Interests
of the Borrower or any of its Subsidiaries), and (b) Swap Agreements
entered into in order to effectively cap, collar or


 


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exchange interest rates (from fixed or
floating rates, from one floating rate to another floating rate or otherwise)
with respect to any interest-bearing liability or investment of the Borrower or
any Subsidiary.


 


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


 


SECTION 6.19.                 Manitowoc Asia Holdings.  The
Borrower shall not permit Manitowoc Asia Holdings to engage in any activities
other than those not materially different from those engaged in on the
Effective Date, consisting exclusively of acting as a holding company for the
equity of Manitowoc Crane Group Asia Pte Ltd. and other Subsidiaries of the
Borrower and, in any event, shall not permit Manitowoc Asia Holdings to incur
Indebtedness other than Indebtedness under the Credit Documents and other
Indebtedness subordinated on terms satisfactory to the Administrative Agent to
the obligations of Manitowoc Asia Holdings under the Credit Documents.


 


ARTICLE VII


 


Events of Default


 


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


 


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


 


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


 


(c)                                       any representation or warranty made or deemed made
by or on behalf of the Borrower or any Subsidiary in or in connection with any
Credit Document or any amendment or modification thereof or waiver thereunder,
or in any report, certificate, financial statement or other document furnished
pursuant to or in connection with any Credit Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been incorrect
in any material respect when made or deemed made;


 


(d)                                      the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.03 (with
respect to the Borrower’s existence) or 5.08, in Article VI or in the
third sentence of Section 9.02(b);


 


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


 


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


 


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


 


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


 


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


 


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


 


(k)                                  one or more judgments for the payment of money in
an aggregate amount in excess of $20,000,000 shall be rendered against any of
the Borrowers, any Material Subsidiary or any combination thereof and the same
shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to attach or levy upon any assets of any of the
Borrowers or any Material Subsidiary to enforce any such judgment;


 


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(l)                                     an ERISA Event shall have occurred that, in the
opinion of the Required Lenders, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in liability
of the Borrower and its Subsidiaries in an aggregate amount exceeding
$20,000,000;


 


(m)                               a Change in Control shall occur;


 


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


 


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


 


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


 


then, and in every such event (other than an
event with respect to any of the Borrowers described in clause (h) or (i) of
this Article), and at any time thereafter during the continuance of such event,
the Administrative Agent may, and at the request of the Required Lenders shall,
by notice to the Borrower, take either or both of the following actions, at the
same or different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to
be due and payable), and thereupon the principal of the Loans so declared to be
due and payable, together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrowers; and in case of any event with
respect to any of the Borrowers described in clause (h) or (i) of
this Article, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrowers.


 


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Notwithstanding any other provision of any
Credit Document:


 


(a)                                  any breach of a representation, warranty or
covenant set forth in any Credit Document; or


 


(b)                                 any Event of Default (other than an Event of
Default under paragraph (a), (b), (h), (i) or (j) of Article VII),


 


(each, a “Curable Circumstance”) will
be deemed not to be a breach of representation or warranty, a breach of
covenant or an Event of Default (as the case may be) during the period expiring
on the day (the “Clean-Up Date”) falling 90 days after the Unconditional
Date, if:


 


(i)                                    it would have been (if it were not for this
provision) a breach of representation or warranty, a breach of covenant or an
Event of Default only by reason of circumstances relating exclusively to any
member of the Target Group (or any obligation to procure or ensure in relation
to a member of the Target Group);


 


(ii)                                 it is capable of remedy and reasonable steps are
being taken to remedy it;


 


(iii)                             the circumstances giving rise to it have not been
procured by (A) the Borrower or (B) a Subsidiary of the Borrower
which is not a member of the Target Group, and neither the Borrower nor any
such Subsidiary has acquiesced to such circumstances where they were legally
able to avoid them; and


 


(iv)                             it could not reasonably be expected (either
individually or in the aggregate with all other Curable Circumstances) to have
a Material Adverse Effect.


 


If the relevant circumstances are continuing
on or after the Clean-Up Date, there shall be a breach of representation or
warranty, breach of covenant or Event of Default, as the case may be
notwithstanding the above (and without prejudice to the rights and remedies of
the Lenders, the Administrative Agent and the Collateral Agent).


 


ARTICLE VIII


 


The Administrative Agent


 


SECTION 8.01.                 The Administrative Agent.


 


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


 


(b)                                 The bank serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Administrative
Agent, and such bank and its Affiliates may


 


112

















 


accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.


 


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


 


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


 


(e)                                  The Administrative Agent may perform any and all
its duties and exercise its rights and powers by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative Agent and
any such sub-agent may perform any and all its duties and exercise its rights
and powers through their respective Related Parties. The exculpatory provisions
of the preceding paragraphs shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall
apply to their respective


 


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activities in connection with the syndication
of the credit facilities provided for herein as well as activities as
Administrative Agent.


 


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


 


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


 


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


 


Without limiting the foregoing, if any
Collateral or any Subsidiary is sold in a transaction permitted hereunder
(excluding sales to the Borrower or a Subsidiary thereof other than sales
comprising part of a Permitted Securitization made to a Subsidiary which is an
SPC), (a) such Collateral and the assets of such Subsidiary shall be sold
free and clear of the Liens created by the Security Documents and (b) in
the case of such a sale of a Subsidiary Guarantor, such Subsidiary Guarantor
and its subsidiaries shall be released from the Subsidiary Guaranty and, in
each case, the Administrative Agent, the Collateral Agent and the UK Security
Trustee shall be authorized to take any actions deemed appropriate in order to
effect the foregoing. Each of the Administrative Agent, the Collateral Agent
and the UK Security Trustee shall also be


 


114

















 


authorized, on behalf of the Lenders, to
enter into such amendments of the Security Documents and to enter into such
agreements (including intercreditor agreements but excluding any releases of
Collateral not otherwise authorized hereby) as, in either case, it deems
necessary or appropriate in connection with a Permitted Securitization.
Additionally, in connection with the granting of Liens of the type described in
clauses (i), (j), (m) or (s) of Section 6.02 by the Borrower or
any of its Subsidiaries, each of the Administrative Agent, the Collateral Agent
and the UK Security Trustee is authorized to take any actions deemed
appropriate by it in connection therewith (including, without limitation, the
execution of appropriate lien releases or lien subordination agreements in
favor of the holder or holders of such Liens, in either case solely with
respect to the item or items of equipment or other assets subject to such Liens.


 


SECTION 8.02.            Administrative Agent as UK Security Trustee.


 


(a)                                  In this Agreement, any rights and remedies
exercisable by, any documents to be delivered to, or any other indemnities or
obligations in favor of the Administrative Agent shall be, as the case may be,
exercisable by, delivered to, or be indemnities or other obligations in favor
of, the Administrative Agent (or any other Person acting in such capacity) in
its capacity as the UK Security Trustee to the extent that the rights,
deliveries, indemnities or other obligations relate to the UK Security
Agreements or the security thereby created. Any obligations of the
Administrative Agent (or any other Person acting in such capacity) in this
Agreement shall be obligations of the Administrative Agent in its capacity as
UK Security Trustee to the extent that the obligations relate to the UK
Security Agreement or the security thereby created. Additionally, in its
capacity as UK Security Trustee, the Administrative Agent (or any Person acting
in such capacity) shall have all the rights, remedies, and benefits in favor of
the Administrative Agent contained in the provisions of the whole of this Article VIII
and, subject always to the provisions of the UK Security Agreement, (i) all
the powers of an absolute owner of the security constituted by the US Pledge
Agreement governed by English law and (ii) all the rights, remedies and
powers granted to it and be subject to all the obligations and duties owed by
it under the UK Security Agreements and/or any of the Credit Documents.


 


(b)                                 Each Lender and the Administrative Agent hereby
appoint the UK Security Trustee to act as its trustee under and in relation to
the UK Security Agreements and to hold the assets subject to the security
thereby created as trustee for the Administrative Agent and Lenders on the
trusts and other terms contained in the UK Security Agreements and the
Administrative Agent and each Lender hereby irrevocably authorize the UK
Security Trustee to exercise such rights, remedies, powers and discretions as
are specifically delegated to the UK Security Trustee by the terms of the UK
Security Agreements together with all such rights, remedies, powers and
discretions as are reasonably incidental thereto.


 


(c)                                  Any reference in this Agreement to Liens stated to
be in favor of the Administrative Agent shall be construed so as to include a
reference to Liens granted in favor of the UK Security Trustee.


 


(d)                                 The Lenders agree that at any time that the UK
Security Trustee shall be a Person other than the Administrative Agent, such
other Person shall have the rights, remedies, benefits and powers granted to
the Administrative Agent in its capacity as the UK Security Trustee in this
Agreement.


 


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(e)                                  Nothing in this Section 8.02 shall require the
UK Security Trustee to act as a trustee at common law or to be holding any
property on trust, in any jurisdiction outside the United States or the United
Kingdom which may not operate under principles of trust or where such trust
would not be recognized or its effects would not be enforceable.


 


ARTICLE IX


 


Miscellaneous


 


SECTION 9.01.            Notices.
 (a) Except in the case of notices
and other communications expressly permitted to be given by telephone (and
subject to paragraph (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:


 


(i)                                     if to the Borrower or any Subsidiary Borrower, to
it at The Manitowoc Company, Inc., 2400 South 44th
Street, Manitowoc, Wisconsin 54221, Attention of Carl Laurino, Chief Financial
Officer and Dean Nolden, Vice President of Finance and Assistant Treasurer,
(Telecopy No. (920) 652-9775), with a copy to Foley & Lardner
LLP, 777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202, Attn: Emory Ireland
(Telecopy No. 414-297-4900);


 


(ii)                                  if to the Administrative Agent, to JPMorgan Chase
Bank, N.A., Loan Operations, 10 South Dearborn, Floor 07, Chicago, Illinois
60603-2003, Attention of Cheryl Lyons (Telecopy No. 312-385-7103; email:
Cheryl.x.lyons@jpmchase.com), and, in
the case of any Loan denominated in a Foreign Currency, to the J.P. Morgan
Europe Limited, 125 Loan Wall, London, EC2Y 5AJ, Attn: Loans Agency (Telecopy No. 44
207 777 2360);


 


(iii)                               if to the Issuing Bank, to it at JPMorgan Chase
Bank, N.A., Letter of Credit Group, 10 South Dearborn, Floor 07, Chicago, IL
60603-2003, Attention of Phyllis Huggins (Telecopy No. 312-732-2729);


 


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


 


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


 


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


 


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


 


116

















 


by it; provided that approval of such
procedures may be limited to particular notices or communications.


 


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


 


SECTION 9.02.                 Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by the Borrowers therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether
the Administrative Agent, any Lender or the Issuing Bank may have had notice or
knowledge of such Default at the time.


 


(b)                                 Neither this Agreement nor any provision hereof may
be waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or by the
Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment
of any Lender without the written consent of such Lender, (ii) reduce or
forgive the principal amount of any Loan or LC Disbursement or reduce the rate
of interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date
of payment of the principal amount of any Loan or LC Disbursement, or any
interest thereon, or any fees payable hereunder, or reduce the amount of, waive
or excuse any such payment, postpone the scheduled date of expiration of any
Commitment (it being understood that an amendment or waiver extending the
Certain Funds Period shall not be deemed to constitute such a postponement) or
extend the stated expiration date of any Letter of Credit beyond the Revolving
Maturity Date, without the written consent of each Lender affected thereby, (iv) change
Section 2.19(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby without the written consent of each Lender
or change Section 2.09(c) in a manner which would alter the pro-rata
sharing of Commitment reductions without the written consent of each Lender
adversely affected thereby, (v) change any of the provisions of this Section or
the definition of “Required Lenders” or any other provision hereof (including
Sections 4.02(h)(iv) and 5.15) 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,
release the Borrower from the Parent Guaranty or release any Subsidiary
Guarantor from its obligations under the Subsidiary Guaranty, except in
connection with the sale of a Subsidiary Guarantor permitted under this
Agreement, without the written consent of each


 


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Lender, (vii) except as permitted by the
terms hereof on the date hereof, change the currency of any Loan or the
currency in which any Commitment is required to be funded without the written
consent of each Lender affected thereby or (viii) alter the amount or the
application of any prepayment required by Section 2.12 without the consent
of Lenders holding at least 50.1% of the Term Loans and/or Term Commitments, as
applicable, affected thereby; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Issuing Bank, the Alternate Currency Fronting Lender,
the Swingline Lender hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank, the Alternate Currency Fronting Lender,
the Swingline Lender, as the case may be. Notwithstanding the foregoing, (i) upon
the execution and delivery of all documentation required by Section 2.09(d) to
be delivered in connection with an increase to the total Commitments, the
Administrative Agent, the Borrower and the new or existing Lenders whose
Commitments have been affected may and shall enter into an amendment hereof
(which shall be binding on all parties hereto and the new Lenders) solely for the
purpose of reflecting any new Lenders and their new Commitments and any
increase in the Commitment of any existing Lender, (ii) no consent of any
Credit Party (nor, to the extent that the amendments referred to below are not
materially adverse to the interests of the Lenders, the consent of any Lender
other than the Flex Lenders) shall be required in connection with an amendment
hereof or of any other Credit Document (which in each case shall be binding
upon each party to the applicable Credit Agreement) being made pursuant to the
letter agreement dated June 30, 2008 among the Borrower, the Arrangers and
certain of their Lender Affiliates relating to fees and “flex” matters and (iii) an
amendment of this Agreement signed only by the Administrative Agent and the
Flex Lenders shall be binding upon all parties hereto if the effect of such
amendment is to (A) reduce the Term B Loan and/or Term B Commitments by an
amount (the “Retranched Amount”) not in excess of the aggregate amount
of the Term B Commitments (or, after the initial funding hereunder, the
aggregate principal amount of the Term B Loans) of the Initial Lenders
immediately prior to giving effect to such amendment, (B) retranche the
Retranched Amount as a “Term Y” Loan by re-instating into this Agreement the
terms and conditions relating to the “Term Y Loan” and “Term Y Commitments” set
forth in the Original Agreement (except that the Term Y Loan/Term Y Commitment
amount shall be the Retranched Amount, the Applicable Rate for the “Term Y
Loan” hereunder shall be the same as the Applicable Rate relative to the Term B
Loan and Subsections 2.12(c) – (f) shall be as set forth on Schedule
9.02)) and (C) allocate such Retranched Amount and related rights and
obligations in respect of such “Term Y” facility to the Initial Lenders on a
pro-rata (relative to their respective aggregate Commitments under the Original
Credit Agreement) basis (i.e., giving effect to such amendment, each of the
Initial Lenders will have a “Term Y Loan” or, as applicable, a “Term Y Commitment”
in an amount corresponding to the amount by which its Term B Loan or Term B
Commitment has been reduced); provided, however, that this subsection (iii) shall
cease to be of any force or effect on the first day upon which the aggregate
amount of the Term B Commitments and Term B Loans of the Initial Lenders is
zero. The Borrower shall (A) at such time as the Flex Lenders shall
request, execute and cause its Subsidiaries to execute such amendments to this
Agreement or the other Credit Documents as may be requested by the Flex Lenders
to effect compliance by the Borrower with its obligations under such letter
agreement or, as applicable, to confirm an amendment contemplated by subsection
(iii) of the preceding sentence (in each case without respect to whether
such execution by the Borrower is, giving effect to subsections (ii) and (iii) of


 


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the preceding sentence, required for the
effectiveness thereof) and (B) otherwise comply with its obligations under
such letter agreement.


 


SECTION 9.03.    Expenses;
Indemnity; Damage Waiver.  (a) The
Borrower shall pay (i) all reasonable out of pocket expenses incurred by
the Administrative Agent and its Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses
incurred by the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender, including the fees, charges and disbursements of any counsel for
the Administrative Agent, the Issuing Bank or any Lender, in connection with
the enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made
or Letters of Credit issued hereunder, including all such out-of pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.


 


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


 


(c)                                  To the extent that the Borrower fails to pay any
amount required to be paid by it to the Administrative Agent, the Collateral
Agent, the Issuing Bank, the Alternate Currency Fronting Lender or the
Swingline Lender under paragraph (a) or (b) of this Section (and
without limiting its obligation to do so), each Lender severally agrees to pay
to the Administrative Agent, the Issuing Bank, the Alternate Currency Fronting
Lender or the Swingline Lender, as the case may be, such Lender’s ratable share
(determined as of the time that the applicable unreimbursed


 


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expense or indemnity payment is sought by
reference to the aggregate outstanding Term Loans and unused Term Commitments
(or, if such Term Commitments have terminated, aggregate outstanding Term
Loans) and Revolving Commitments (or, if such Revolving Commitments have
terminated, aggregate Revolving Credit Exposure)) of such unpaid amount; provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the
Administrative Agent, the Issuing Bank, the Alternate Currency Fronting Lender
or the Swingline Lender in its capacity as such.


 


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


 


(e)                                  All amounts due under this Section shall be
payable not later than ten

Business Days after written demand therefor.


 


SECTION 9.04.    Successors
and Assigns.  (a) The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby (including
J. P. Morgan Europe Limited and any Affiliate of the Issuing Bank that issues
any Letter of Credit), except that (i) the Borrowers may not assign or
otherwise transfer any of their respective rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrowers without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section. Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including J.
P. Morgan Europe Limited and any Affiliate of the Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of
this Section) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.


 


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


 


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


 


(B)                                the Administrative Agent, provided that no
consent of the Administrative Agent shall be required for an assignment of (x) any
Revolving Commitment to an assignee that is a Lender with a Revolving
Commitment immediately


 


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prior to giving effect to such assignment and
(y) all or any portion of a Term Loan to a Lender, an Affiliate of a
Lender or an Approved Fund; and


 


(C)                                each Issuing Bank; provided that no consent
of any Issuing Bank shall be required for an assignment of all or any portion
of a Term Loan.


 


(D)                               JPMorgan, in its capacity as the Alternate Currency
Fronting Lender; provided that no consent of the Alternate Currency
Fronting Lender shall be required for an assignment of all or any portion of a
Term Loan.


 


(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, in the case of a Term Loan, $1,000,000) unless each of the
Borrower and the Administrative Agent otherwise consent, provided that
no such consent of the Borrower shall be required if an Event of Default has
occurred and is continuing;


 


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


 


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


 


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


 


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


 


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“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
and that is administered or managed by (a) a Lender, (b) an Affiliate
of a Lender or (c) an entity or an Affiliate of an entity that administers
or manages a Lender.


 


(iii)          Subject to
acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
2.16, 2.17, 2.18 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.


 


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


 


(v)           Upon its receipt of
a duly completed Assignment and Assumption executed by an assigning Lender and
an assignee, the assignee’s completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided that if either
the assigning Lender or the assignee shall have failed to make any payment
required to be made by it pursuant to Section 2.05(c), 2.06(d) or
(e), 2.07(b), 2.19(d) or 9.03(c), the Administrative Agent shall have no
obligation to accept such Assignment and Assumption and record the information
therein in the Register unless and until such payment shall have been made in
full, together with all accrued interest thereon. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.


 


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(c)           (i) Any Lender may, without the consent of the
Borrowers, the Administrative Agent, the Issuing Bank, the Alternate Currency
Fronting Lender or the Swingline Lender, sell participations to one or more
banks or other entities (a “Participant”) in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Borrowers, the Administrative
Agent, the Issuing Bank and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (c)(ii) of this Section, the Borrowers agree that
each Participant shall be entitled to the benefits of Sections 2.16, 2.17 and
2.18 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 9.08
as though it were a Lender, provided such Participant agrees to be subject to Section 2.19(c) as
though it were a Lender.


 


(ii)           A Participant shall
not be entitled to receive any greater payment under Section 2.16 or 2.18
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 Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.18 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 2.18(e) as
though it were a Lender.


 


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


 


SECTION 9.05.                    Survival. All
covenants, agreements, representations and warranties made by the Borrowers
herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon
by the other parties hereto and shall survive the execution and delivery of
this Agreement and the making of any Loans and issuance of any Letters of
Credit, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent, the Collateral Agent,
the Issuing Bank or any Lender may have had notice or knowledge of any Default
or incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any


 


123

















 


Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.16, 2.17, 2.18 and 9.03 and Article VIII shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans, the
expiration or termination of the Letters of Credit and the Commitments or the
termination of this Agreement or any provision hereof.


 


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


 


SECTION 9.07.                    Severability. Any
provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.


 


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


 


SECTION 9.09.                    Governing Law;
Jurisdiction; Consent to Service of Process. (a) This Agreement shall
be construed in accordance with and governed by the law (without regard to
conflict of law provisions) of the State of New York.


 


(b)           Each of the Borrowers hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding


 


124

















 


arising out of or relating to this Agreement,
or for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement
shall affect any right that the Administrative Agent, the Issuing Bank or any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement against the Borrowers or their respective properties in the courts of
any jurisdiction.


 


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


 


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


 


SECTION 9.10.                    WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.


 


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


 


SECTION 9.12.                    Confidentiality. Each
of the Administrative Agent, the Issuing Bank and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any
regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party to this


 


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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, (ii) any pledgee referred to in Section 9.04(d) or (iii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to any of the Borrowers and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Borrower. For the purposes
of this Section, “Information” means all information received from the
Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent, the Issuing Bank or
any Lender on a nonconfidential basis prior to disclosure by the Borrower; provided
that, in the case of information received from the Borrower after the Effective
Date, such information is or was clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.


 


EACH LENDER ACKNOWLEDGES THAT INFORMATION AS
DEFINED IN SECTION 9.12 FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE
MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES
OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT
WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE
PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.


 


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


 


SECTION 9.13.                    Interest Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the interest
rate applicable to any Loan, together with all fees, charges and other amounts
which are treated as interest on such Loan under applicable law (collectively
the “Charges”), shall exceed the maximum lawful rate (the “Maximum
Rate”)  which may be contracted for, charged, taken, received or
reserved by the Lender holding such Loan in accordance with applicable law, the
rate of interest payable in respect of such Loan


 


126

















 


hereunder, together with all Charges payable
in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of
such Loan but were not payable as a result of the operation of this Section shall
be cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received
by such Lender.


 


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


 


SECTION 9.15.                    Conversion of Currencies.
(a)            If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.


 


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


 


SECTION 9.16.                    Syndication Agent and
Documentation Agents. Any syndication agent or documentation agents
appointed with respect to this Agreement shall, in their capacities as such,
have no duties or responsibilities under this Agreement or any other Credit
Document. No syndication agent or documentation agent shall have or be deemed
to have any fiduciary relationship with any Lender. Each Lender acknowledges
that it has not relied, and will not rely, on any syndication agent or documentation
agent in deciding to enter into this Agreement or any other Credit Document or
in taking or not taking any action hereunder.


 


127

















 


SECTION 9.17.                    Amendment and Restatement.


 


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


 


(b)           Notwithstanding the modifications effected by this
Agreement of the representations, warranties and covenants of the Borrower
contained in the Original Credit Agreement, the Borrower acknowledges and
agrees that any causes of action or other rights created in favor of the
Administrative Agent, the Collateral Agent or any Lender or its successors
arising out of the representations and warranties of the Borrower contained in
or delivered in connection with the Original Credit Agreement shall survive the
execution, delivery and effectiveness of this Agreement.


 


(c)           All indemnification obligations of the Borrower arising
under the Original Credit Agreement (including any arising from a breach of the
representations thereunder) shall survive this amendment and restatement of the
Original Credit Agreement.


 


ARTICLE X


 


Collection Action Mechanism


 


SECTION 10.01.                  Implementation of CAM. (a) On
the CAM Exchange Date, (i) the Commitments shall automatically and without
further act be terminated in accordance with Article VII, (ii) the
Lenders shall automatically and without further act be deemed to have exchanged
interests in the Designated Obligations such that, in lieu of the interests of
each Lender in the Designated Obligations under each Tranche (as defined below)
in which it shall participate as of such date, such Lender shall own an
interest equal to such Lender’s CAM Percentage in the Designated Obligations
under each of the Tranches and (iii) simultaneously with the deemed
exchange of interests pursuant to clause (ii) above, the interests in the
Designated Obligations to be received in such deemed exchange shall,
automatically and with no further action required, be converted into the Dollar
Equivalent, determined using the Exchange Rate calculated as of such date, of
such amount and on and after such date all amounts accruing and owed to the
Lenders in respect of such Designated Obligations shall accrue and be payable
in Dollars at the rate otherwise applicable hereunder. Each Lender, each person
acquiring a participation from any Lender as contemplated by Section 9.04
and each of the Borrowers hereby consents and agrees to the CAM Exchange. Each
of the Borrowers and the Lenders agrees from time to time to execute and
deliver to the Administrative Agent all such promissory notes and other
instruments and documents as the Administrative Agent shall reasonably request
to evidence and confirm the respective interests and obligations of the Lenders
after giving effect to the CAM Exchange, and each Lender agrees to surrender
any promissory notes originally received by it in connection with its Loans
hereunder to the Administrative Agent against delivery of any promissory notes
so executed and delivered; provided
that the failure of any of the Borrowers to execute or deliver or of any Lender
to accept any such promissory note,


 


128

















 


instrument or document shall not affect the
validity or effectiveness of the CAM Exchange. For purposes hereof, “Tranche”
means a category of Commitments and extensions of credits thereunder. For
purposes of such definition, each of the following comprises a separate
Tranche: (i) the Letters of Credit issued for the account of, and the
Swingline Loans, Alternate Currency Loans and Revolving Loans made to, the
Borrower, (ii) the Letters of Credit issued for the account of, and the
Revolving Loans and Alternate Currency Loans made to, each Subsidiary Borrower,
(iii) the Term A Loan, (iv) the Term B Loan and (v) the Term X
Loan.


 


(b)           As a result of the CAM Exchange, on and after the CAM
Exchange Date, each payment received by the Administrative Agent pursuant to
any Credit Document in respect of the Designated Obligations shall
(notwithstanding any provision therein to the contrary) be distributed to the
Lenders pro rata in accordance with their respective CAM Percentages (to be
redetermined as of each such date of payment or distribution to the extent
required by Section 10.01(c)).


 


(c)           In the event that, on or after the CAM Exchange Date, the
aggregate amount of the Designated Obligations shall change as a result of the
making of a disbursement under a Letter of Credit by an Issuing Bank that is
not reimbursed by the Applicable Borrower, then (i) each Lender which,
immediately prior to the CAM Exchange Date, had a Revolving Commitment or
Revolving Credit Exposure (a “Revolving Lender”) shall, in accordance with Section 2.06(d),
promptly purchase from the applicable Issuing Bank a participation in such L/C
Disbursement in the amount of such Revolving Lender’s Applicable Revolver
Percentage (determined without giving effect to the CAM Exchange) of such L/C
Disbursement, (ii) the Administrative Agent shall redetermine the CAM
Percentages after giving effect to such disbursement and the making of such L/C
Disbursement and the purchase of participations therein by the applicable
Revolving Lenders and the Lenders shall automatically and without further act
be deemed to have exchanged interests in the Designated Obligations such that
each Lender shall own an interest equal to such Lender’s CAM Percentage in the
Designated Obligations under each of the Tranches (and the interests in the
Designated Obligations to be received in such deemed exchange shall,
automatically and with no further action required, be converted into the Dollar
Equivalent of such amount in accordance with the first sentence of Section 10.01(a)),
and (iii) in the event distributions shall have been made in accordance
with Section 10.01(b), the Lenders shall make such payments to one another
as shall be necessary in order that the amounts received by them shall be equal
to the amounts they would have received had each such disbursement and L/C
Disbursement been outstanding on the CAM Exchange Date. Each such
redetermination shall be binding on each of the Lenders and their successors
and assigns and shall be conclusive, absent manifest error.


 


129
















 


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


 


 


	
   

  	
  THE
  MANITOWOC COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Maurice D. Jones

  
	
   

  	
  Name:
  

  	
  Maurice
  D. Jones

  
	
   

  	
  Title:
  

  	
  Senior
  Vice President,

  
	
   

  	
   

  	
  General
  Counsel & Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MANITOWOC
  EMEA HOLDING SARL

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Maurice D. Jones

  
	
   

  	
  Name:
  

  	
  Maurice
  D. Jones

  
	
   

  	
  Title:
  

  	
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MANITOWOC
  HOLDING ASIA SAS

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Maurice D. Jones

  
	
   

  	
  Name:
  

  	
  Maurice
  D. Jones

  
	
   

  	
  Title:
  

  	
  General
  Manager

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A., individually

  
	
   

  	
  and
  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Brian Grossman

  
	
   

  	
  Name:
  

  	
  Brian
  Grossman

  
	
   

  	
  Title:
  

  	
  Vice
  President

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  DEUTSCHE
  BANK AG NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Albert Fischetti

  
	
   

  	
  Name:
  

  	
  Albert
  Fischetti

  
	
   

  	
  Title:
  

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Mark Funk

  
	
   

  	
  Name:
  

  	
  Mark
  Funk

  
	
   

  	
  Title:
  

  	
  Managing
  Director

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  MORGAN STANLEY SENIOR FUNDING, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Kevin D. Emerson

  
	
   

  	
  Name:
  

  	
  Kevin D. Emerson

  
	
   

  	
  Title:
  

  	
  Vice President

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  BNP
  PARIBAS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Constantin Driken

  
	
   

  	
  Name:
  

  	
  Constantin
  Driken

  
	
   

  	
  Title:
  

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Andrew Kirby

  
	
   

  	
  Name:
  

  	
  Andrew
  Kirby

  
	
   

  	
  Title:
  

  	
  Vice President

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  Bank
  of America, N.A.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Michael Delaney

  
	
   

  	
  Name:
  

  	
  Michael
  Delaney

  
	
   

  	
  Title:
  

  	
  Vice
  President

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  CALYON NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Blake Wright

  
	
   

  	
  Name:
  

  	
  Blake Wright

  
	
   

  	
  Title:
  

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph Philbin

  
	
   

  	
  Name:
  

  	
  Joseph Philbin

  
	
   

  	
  Title:
  

  	
  Director

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  CREDIT
  INDUSTRIEL ET COMMERCIAL

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Albert
  M. Calo

  
	
   

  	
  Name:
  

  	
  Albert
  M. Calo

  
	
   

  	
  Title:
  

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Nicolas Courtaigne

  
	
   

  	
  Name:
  

  	
  Nicolas
  Courtaigne

  
	
   

  	
  Title:
  

  	
  Assistant
  Vice President

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  NATIXIS

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  James R. Williams

  
	
   

  	
  Name:
  

  	
  James R. Williams

  
	
   

  	
  Title:
  

  	
  Senior Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Paul Moisselin

  
	
   

  	
  Name:
  

  	
  Paul Moisselin

  
	
   

  	
  Title:
  

  	
  Associate

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  THE
  BANK OF NOVA SCOTIA

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Paula
  Czach

  
	
   

  	
  Name:
  

  	
  Paula
  Czach

  
	
   

  	
  Title:
  

  	
  Director

  



 


 


[Signature Page to Credit Agreement]


 
















 


	
   

  	
  SOCIETE
  GENERALE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Anne-Marie
  Dumortier

  
	
   

  	
  Name:
  

  	
  Anne-Marie
  Dumortier

  
	
   

  	
  Title:
  

  	
  Director

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  SUNTRUST
  BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Robert Maddox

  
	
   

  	
  Name:
  

  	
  Robert
  Maddox

  
	
   

  	
  Title:
  

  	
  Director

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL 

  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Mark H. Halldorson

  
	
   

  	
  Name:
  

  	
  Mark H. Halldorson

  
	
   

  	
  Title:
  

  	
  Vice President

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  THE BANK OF TOKYO-MITSUBISHI UFJ, 

  LTD.,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christine Howatt

  
	
   

  	
  Name:
  

  	
  Christine
  Howatt

  
	
   

  	
  Title:
  

  	
  Authorized
  Signatory

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  Mizuho
  Corporate Bank, Ltd.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Robert
  Gallagher

  
	
   

  	
  Name:
  

  	
  Robert
  Gallagher

  
	
   

  	
  Title:
  

  	
  Authorized
  Signatory

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  COÖPERATIEVE CENTRALE RAIFFEISEN-

  BOERENLEENBANK B.A., “RABOBANK

  NEDERLAND” NEW YORK BRANCH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Peter Glawe 

  
	
   

  	
  Name:
  

  	
  Peter
  Glawe 

  
	
   

  	
  Title:
  

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Brett Delfino

  
	
   

  	
  Name:
  

  	
  Brett
  Delfino

  
	
   

  	
  Title:
  

  	
  Executive
  Director

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  COMMERZBANK AG, NEW YORK AND

  
	
   

  	
  GRAND CAYMAN BRANCHES

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By 

  	
  /s/ Patrick Hartweger

  
	
   

  	
  Name: 

  	
  Patrick Hartweger

  
	
   

  	
  Title:   

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By 

  	
  /s/ Al
  Morrow

  
	
   

  	
  Name:

  	
  Al Morrow

  
	
   

  	
  Title:

  	
  Assistant Vice President

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  M&I Marshall & Ilsley Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By 

  	
  /s/ Ronald J. Carey

  
	
   

  	
  Name: 

  	
  Ronald J. Carey

  
	
   

  	
  Title:   

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By 

  	
  /s/ James R. Miller

  
	
   

  	
  Name: 

  	
  James R. Miller

  
	
   

  	
  Title:   

  	
  Senior Vice President

  



 


 


[Signature Page to Credit Agreement]


 
















 


	
   

  	
  BAYERISCHE LANDESBANK, NEW YORK

  
	
   

  	
  BRANCH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Christopher Dowd

  
	
   

  	
  Name:

  	
  Christopher Dowd

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Georgina Fiordalisi

  
	
   

  	
  Name:

  	
  Georgina Fiordalisi

  
	
   

  	
  Title:

  	
  Vice President

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  BAYERISCHE HYPO- UND VEREINSBANK

  
	
   

  	
  AG, NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Yoram Dankner

  
	
   

  	
  Name:

  	
  Yoram Dankner

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Richard Cordover

  
	
   

  	
  Name:

  	
  Richard Cordover

  
	
   

  	
  Title:

  	
  Director

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  SUMITOMO MITSUI BANKING CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Leo Pagarigan

  
	
   

  	
  Name:

  	
  Leo Pagarigan

  
	
   

  	
  Title:

  	
  General Manager

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  THE NORTHERN TRUST COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Peter J. Hallan

  
	
   

  	
  Name:

  	
  Peter J. Hallan

  
	
   

  	
  Title:

  	
  Vice President

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  TD Bank, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Todd S. Sturza, RVP

  
	
   

  	
  Name:

  	
  Todd S. Sturza

  
	
   

  	
  Title:

  	
  Regional Vice President

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  U.S. Bank National Association

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Jason Nadler

  
	
   

  	
  Name:

  	
  Jason Nadler

  
	
   

  	
  Title:

  	
  Vice President

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  MERRILL LYNCH BANK USA

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Louis Alder

  
	
   

  	
  Name:

  	
  Louis Alder

  
	
   

  	
  Title:

  	
  First Vice President

  



 


 


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  Fifth Third Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Garland F. Robeson

  
	
   

  	
  Name:

  	
  Garland F. Robeson IV

  
	
   

  	
  Title:

  	
  Assistant Vice President

  



 


 


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  Associated Bank, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Viktor R. Gottlieb

  
	
   

  	
  Name:

  	
  Viktor R. Gottlieb

  
	
   

  	
  Title:

  	
  AVP

  



 


 


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  SIEMENS FINANCIAL SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ David Kantes

  
	
   

  	
  Name: 

  	
  David Kantes

  
	
   

  	
  Title:

  	
  Senior Vice President and

  Chief Risk Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SIEMENS FINANCIAL SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Carol Walters

  
	
   

  	
  Name: 

  	
  CAROL WALTERS

  
	
   

  	
  Title:

  	
  VICE PRESIDENT-DOCUMENTATION

  



 


 


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  Mercantil Commercebank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Javier Miranda

  
	
   

  	
  Name:

  	
  Javier Miranda

  
	
   

  	
  Title:

  	
  Assistant Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Alan Hills

  
	
   

  	
  Name:

  	
  Alan Hills

  
	
   

  	
  Title:

  	
  Senior Vice President

  



 


 


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  PPM America Inc., as

  
	
   

  	
  Attorney-in-fact, on behalf

  
	
   

  	
  of Jackson National Life Insurance

  
	
   

  	
  Company, as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eddie Hebert

  
	
   

  	
   

  	
  Name:

  	
  Eddie Hebert,

  
	
   

  	
   

  	
  Title:

  	
  Assistant Vice President

  



 


 


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  PT, Bank Negara Indonesia (Persero) Tbk

  
	
   

  	
  New York Agency

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Pieter Siadari

  
	
   

  	
  Name:

  	
  Pieter Siadari

  
	
   

  	
  Title:

  	
  General Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Jerry Phillips

  
	
   

  	
  Name:

  	
  Jerry Phillips

  
	
   

  	
  Title:

  	
  Credit Manager

  



 


 


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  CHANG HWA COMMERCIAL BANK, LTD.,

  
	
   

  	
  NEW YORK BRANCH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Jim C.Y. Chen

  
	
   

  	
  Name:

  	
  Jim C.Y. Chen

  
	
   

  	
  Title:

  	
  VP & General Manager

  



 


 


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  Chinatrust Commercial Bank, New York Branch

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Alan Ong

  
	
   

  	
  Name:

  	
  Alan Ong

  
	
   

  	
  Title:

  	
  Vice President

  



 


 


[Signature Page to Credit Agreement]